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COMMON PLEAS. 1534.
(Reported Year-Book 26 Hen. VIII. 4 pl. 15.] Note that Hales, Apprentice, said: “ Common appendant is of common right, and so
begins at first, and it shall not be appendant except to arable land; for a man shall not have common appendant to a honse
, nor to any other land but arable land, and this common a man shall not have except by prescription. For a man cannot make common appendant, for it begins only before time beyond memory, and in it a man shall have sufficient common for his beasts which manure his land to which it is appendant.” To which Fitz-HERBERT [J.] agreed, and said : " And it is otherwise with common appurtenant; for a man can make common appurtenant at this day, and can alienate it, and sever it from the land to which it is appurtenant, but so he cannot with common appendant.” And note that it was agreed in the same case that if a manor descends to two parceners or more, and they make partition, so that each of them has part of the demesne and part of the services,
Quod nota. Co. Lit. 122 a. There be four kinds of common of pasture ; viz., common appendant, which is of common right (and therefore a man need not prescribe for it), for beasts commonable, that is, that serve
each of them has a manor.
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for the maintenance of the plough, as horses and oxen to plough the land, and for kive and sheep to compester the land, and is appendant to arable land.
The second is common appurtenant, that is, for beasts not commonable; as swine, goats, and the like. If a man purchase part of the land wherein common appendant is to be had, the common shall be apportioned, because it is of common right; but not so of a common appurtenant, or of any other common of what nature soever. But both common appendant and appurtenant shall be apportioned by alienation of part of the land to which common is appendant or appurtenant; and for common appurtenant one must prescribe.
The third is common per cause de vicinuge, which differeth from both the other commons, for that no man can put his beasts therein, but they must escape thither of themselves by reason of vicinity; in which case one may enclose against the other, though it hath been so used time out of mind, for that it is but an excuse for trespass.
The last is common in gross, which is so called, for that it appertaineth to no land, and must be by writing or prescription. Of common appendant, appurtenant, and in gross, some be certain, that is, for a certain number of beasts ; some certain by consequent, viz., for such as be levant and couchant upon the land ; and some be more uncertain, as commons sauns zomber in gross, and yet the tenant of the land must common or feed there also.2
There be also divers other commons, as of estovers, of turbary, of pischary, of digging for coals, minerals, and the like. If common appendant be claimed to a manor, yet in rei veritate it is appendant to the demesnes, and not to the services; and therefore if a tenancy escheat, the lord shall not increase his common by reason of that. If a man claim by prescription any manner of common in another man's land, and that the owner of the land shall be excluded to have pasture, estovers, or the like, this is a prescription or custom against the law, to exclude the owner of the soil; for it is against the nature of this word common, and it was implied in the first grant, that the owner of the soil should take his reasonable profit there, as it hath been adjudged. But a man may prescribe or allege a custom to have and enjoy solam vesturam terræ from such a day till such a day, and hereby the owner of the soil shall be excluded to pasture or feed there; and so he may prescribe to have separalem pasturam, and exclude the owner of the soil from feeding there. Nota diversitatem. So a man may prescribe to have separalem pischariam in such a water, and the owner of the soil shall not fish there; but if he claim to have communiam pischariæ, or liberam pischariam, the owner of the soil shall fish there. And all this hath been resolved.
1 On common per cause de vicinage, see several cases in 10 Q. B. 581-640.
2 “Amongst the older authorities there appears, certainly, some difference of opinion as to the meaning of the expression “levant and couchant.' There is one set of cases in which it is laid down, that the term 'cattle levant and couchant upon enclosed land' means such cattle as are actually used for the purpose of manuring and cultivating the enclosed land. The rule now is, that such cattle only are to be holden levant and couchant upon the enclosed land, as that land will keep during the winter. It has been argued, that the rule includes such as the land will keep during the whole, or any part, of the year; but that is not so. The real question is, Has this defendant
Co. Lit. 164 b. The Lord Mountjoy, seised of the manor of Canford in fee, did by deed endented and inrolled bargain and sell the same to Browne in fee, in which indenture this clause was contained. Provided always, and the said Browne did covenant and grant to and with the said Lord Mountjoy, his heirs and assigns, that the Lord Mountjoy, his heirs and assigns, might dig for ore in the lands (which were great wastes) parcel of the said manor, and to dig turf also for the making of allome. And in this case three points were resolved by all the judges. First, that this did amount to a grant of an interest and inheritance to the Lord Mountjoy, to dig, &c. Secondly, that notwithstanding this grant, Browne, his heirs and assigns might dig also, and like to the case of common sauns nomber. Thirdly, that the Lord Mountjoy might assign his whole interest to one, two, or more; but then, if there be two or more, they could make no division of it, but work together with one stock; neither could the Lord Mountjoy, &c., assign his interest in any part of the waste to one or more, for that might work a prejudice and a surcharge to the tenant of the land ; and therefore if such an uncertain inheritance descendeth to two coparceners, it cannot be divided between them.”
[Reported Dyer, 285, pl. 40.) The king's grantee or patentee of the herbage of a forest shall have trespass against any one who consumes or destroys the grass, but not the trees nor the fruit of them ; and also shalí take beasts damage-feasants there ; and the writ of trespass shall be quare clar
as well as if it had been of land. And by the opinion of three judges in B. R. in Trin. Term, 2 H. 8 (Keilw. 159 b], the patentee may inclose the forest by such grant, &c.3 turned more cattle upon the common than the winter eatage of his ancient tenement, together with the hay and other produce obtained from it during the summer, is capable of maintaining ?" Per PARKE, B., in Whitelock v. Hutchinson, 2 Moo. & R. 205 (1839). And see Carr v. Lambert, L. R. 1 Ex. 168.
In Welcome v. Upton, 6 M. & W. 536 (1840), a right in gross by prescription in A. and his ancestors to a sole and several pasturage, was held good and assignable.
Punk v. Haldeman, 53 Pa. 229, 244 ; Van Rensselaer v. Radcliff, 10 Wend. 639.
« And these cases were put on this ground, that a man shall have an action of tres. pass vi et armis quare in warennam suam intravit, notwithstanding that the freehold of the soil is in the defendant, for he does not bring an action of freehold of soil, but for