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[Reported 4 Co. 366.] In trespass between Phesant, plaintiff, and Salmon, defendant, the case was such : Tho. Tyrringham was seised of an house, 44 acres of land, 7 acres of meadow, and 2 acres of pasture, in Titchmersh in the county of Northampton ; to which house, land, meadow and pasture, he and all those whose estate he had, had used to have common of pasture for oxen, cows, and heifers levant and couchant upon the house, land, meadow, and pasture, as well in 30 acres of land in the same town (whereof one John Pickering was then seised in fee), as in 40 acres of land and pasture in Titchmersh aforesaid (whereof one Boniface Pickering was then seised in fee) as to the said house, land, meadow, and pasture appertaining. And afterwards the said Boniface Pickering being seised as aforesaid, of the said 40 acres, purchased to him and his heirs the said house, 44 acres of land, 7 acres of meadow, and 2 acres of pasture, to which, &c., and being so seised as well of the said 40 acres in which, as of the said tenements to which, &c., demised the house, land, meadow, and pasture to which, &c., to Phesant, who put in two cows into the said 30 acres to use the said common, and the said Salmon, who was farmer of the said John Pickering, with a little dog, leviter et moliter drove out the said cows, and the said Phesant brought his action of trespass for chasing his cattle. In this case divers points were resolved by WRAY, C. J., Sir Thomas Gawdy, et totam curiam : First, ... 2. It was resolved that common appendant may be apportioned for two reasons: 1. Because it is of common right, and therefore if the commoner purchases parcel of the land in which, &c., yet the common shall be apportioned; as if the lord purchases parcel of the tenancy, the rent shall be apportioned; so if A. has common appendant to 20 acres of land, and enfeoffs B. of part of the said 20 acres to which, &c., this common shall be apportioned, and B. shall have common pro rata. And where it was objected : 1. that the prescription fails in both the cases ; for in the first case he never had common in part of the land only, but entirely in all; and it would be now a prejudice to the terre-tenant if he should have common in the 30 acres only for all the cattle levant and couchant upon all the tenements to which, &c. And in the latter case, no common was ever appendant to part of the land, but entirely to the whole; also, 2. In assise of common all the terre-tenants ought to be named, and that cannot be when the cominoner himself has purchased part of the land. As to these objections, it was answered and resolved, that as to the 1st, the prescrip. ought to be special, sc., to prescribe to have common in the whole till such a dar, and then to show the purchase of part, and from that time that he has put in his cattle into the residue pro rata portione ; as in the cases, when a corporation has liberties by prescription, and within time of memory the corporation is altered, there ought to be a special prescription; as to the second case, sc., when part of the land to which, &c., is aliened, there, every of them may prescribe to have common for cattle levant and couchant upon his lan
the warren, with which the defendant has nothing to do. So if one grants the vesture of his land for a term of years, if the grantor, who has the freehold in the land, takes the vesture or the profit which was his [the grantee's] by reason of the grant, he shall have an action ; for he does not bring the action of the land, but of the chattel. And the law is the same of a grant made of trees, and the grantee cuts them down, and the grantor takes them, a good action of trespass quare vi et armis lies for taking the trees, because they are his chattels. And so where one has a liberty or profit in a freehold, and he who has the freehold does an injury to this liberty or profit that he has in his land, it is right that he should be punished vi et armis ; for he has nothing to do with them, but with his land and frechold, of which the other does not bring his action. And so as the lessee has a term, which is not now part of the defendant's freehold, it is right that he (the lessor) should be punished for entering the close, because he has given the close to another for the time, and the lessee will not use the action for the freehold. And all the cases put were held for law.” Anon., 5 Hen. VII. 10 (1490).
See Wilson v. Mackreth, 3 Burr. 1824 : Cox v. Glue, 5 C. B. 533.
I The first resolution, in which it was held that the common was appurtenant, not appendant, is omitted.
and in none of these cases any prejudice accrues to the tenant of the land in which the common is to be had, for he shall not be charged with more upon the matter than he was before the severance; and God forbid the law should not be so, when part of the land to which, &c., is aliened; for otherwise many commons in England (which God forbid) would be annihilated and lost;
agreed, that such common, which is admeasurable, shall remain after the severance of part of the land to which, &c. But in the case at bar, forasmuch as the court resolved, that the common was appurtenant and not appendant, and so against common right, it was adjudged, that by the said purchase all the common was extinct; for in such case, common appurtenant cannot be extinct in part, and be in esse for part by the act of the parties. And as to the last objection, it was answered and resolved, that if upon the matter the common appendant should be apportioned, then the terre-tenant should be only named out of the land charged with the residue of the common, as in case where a rent-charge is apportioned in case of descent, the tenant of the land shall be only named out of which the residue of the rent which remains issues
. And it was said, in this case, this word (pertinens) is Latin as well for appurtenant as for appendant, and therefore subjecta materia, and the circumstance of the case ought to direct the court to judge the common to be appendant, or appurtenant."
1 The rest of the case is omitted.
and it was
TOTTELL U. HOWELL.
COMMON PLEAS. 1595.
(Reported Noy, 54.) It was held by the court that herbagium, for years, cannot be granted without deed. Note 17 E. 4, 6.1
DRURY v. KENT.
KING'S BENCH. 1603.
[Reported Cro. Jac. 14.] REPLEVIN. Upon a special verdict the case was, A man prescribes to have common appurtenant to the manor of B. for all his beasts levant and couchant upon it: he grants this common to A. Whether this grant were good or no? was the question. And adjudged, that he could not grant it over, for he hath it quasi sub modo, viz., for the beasts levant and couchant; no more than estovers to be burnt in a house certain : but common appurtenant for beasts certain may be granted over. Wherefore it was adjudged ut supra.
SMITH v. GATEWOOD.
KING'S BENCH. 1607.
(Reported Cro. Jac. 152.] TRESPASS in a place called Horsington Holms. The defendant justifies, for that Stixwold is an ancient vill adjoining to the place where, &c., and that within the said vill is, and time whereof, &c., hath been such a custom : that every inhabitant within any ancient messuiage within the said vill, by reason of his commorancy therein, hath had common in the place where, for all his great beasts, at all times of the year, &c.; and so justifies as an inhabitant. And it was thereupon demurred. Whether such a prescription and usage in a vill for the inhabitants for common and matter of profit be good ?
After argument at bar and bench, it was resolved, that it was not good; for inhabitants, unless they be incorporated, cannot prescribe to have profit in another's soil, but only in matters of easement, as in a
1 See Somerset v. Fogwell, 5 B. & C. 875.
way or causey to church, or such like : so in matters of discharge, as to be discharged of toll, or of tithes, or in modo decimandi, or the like: but to have interest it canno be ; for that ought to be by persons enabled, who are always to have continuance: for if there should be such prescription, then, if any of the inhabitants depart from their ancient houses, and the house continues empty, the inheritance of the common should be suspended; which cannot be. Nor can such a common be released; for if one inhabitant should release, another which succeeded him might claim it; which is against the rules of law, that an inheritance in a profit should not be discharged: and by such prescription a maid-servant or child who resides in the house is said to be an inhabitant, and to have the benefit of the common; which would be inconvenient. Wherefore they all resolved, that such a custom alleged by way of usage (not otherwise) is not good; and adjudged it for the plaintiff. It was said to be so resolved in Trinity Term, 33 Eliz. Roll. 422, Lawrence v. Hull; and Coke cited, that in 19 Hen. 8, in Spelman’s Reports, it was adjudged accordingly in this court. Vide 7 Edw. 4, pl. 26; 15 Edw. 4, pl. 29; 18 Edw. 4, pl. 3; 20 Edw. 4, pl. 10; 9 Hen. 6, pl. 62; 18 Hen. 8; pl. 1.
PITT V. CHICK.
COMMON PLEAS. 1620.
And it was
[Reported Hutt. 45.] Matthew Pitt brought replevin against Chick; the defendant avow, for that the place contains five acres, which lie between the lands of Sir George Speck : and that the said Sir George Speck and all bis ancestors, de temps d'out, &c., have used to have herbage and pasture of the said five acres, viz. if they were sown, then after the reaping until re-sowing; and if they were not sown, then for the whole year, and convey title to the said herbage by lease in writing to him, and arow damage feasant.
urged, that he which had all the profit for a time, and the sole profit
, had the freehold ; and that is not a thing which lie in prescription semble al common, or to pasture for a certain number of years : and it was said, that a grant de vestura terrce, or de herbag. terræ for one and twenty years, is a good lease. But it was adjudged, that it is a good avowry, and he had only profit a prender, and that $. C. sub nom. Gatewards Case, 6 Co. 59 b, where the case is said to have been
5. Taylor, 3 Lev. 160 (1684), a custom for every freeman and proprietor of a ship in Linn-Regis to dig gravel for the ballast of his ships was held, by the Court of Common Pleas, to be good, it being for
the maintenance of navigation,
in the Common Pleas.
In Linn- Regis
and so pro bono publico."
he might have an assise, or justify for damage feasant: and he which hath the fore-crop is he which hath the freehold, 15 E. 2; Fitz., Prescription, 51. And the very case is, temps E. 1, Fitz. Prescription, 55 ; and this sole feeding might have commencement by grant, and therefore a good prescription.
Judgment for the avovant.
WILKINSON V. PROUD.
[Reported 11 M. & W. 33.) CASE for an injury to the plaintiff's reversion in certain closes or parcels of land in the occupation of one Gill, as tenant thereof to the plaintiff; alleging, that without the leave or license of the plaintiff, the defendants dug and excavated divers holes and pits, and erected and fixed divers engines, gins, buildings, and posts on the said closes and parcels of land, and dug, worked, and won therein divers large quantities of coal, and carried away and converted the same, and also prostrated, subverted, and injured the crops, fences, earth, and soil of the said closes or parcels of land, and cut down certain trees growing on the same, and undermined a portion thereof, &c.
Second plea, as to the cutting, digging, excavating, and making the holes, pits, and trenches in the declaration mentioned, and erecting and fixing the engines, gins, buildings, and posts in the declaration mentioned in and upon the said closes and parcels of land, and digging, working, and winning the quantities of coal in the declaration mentioned, and drawing, carrying away, converting, and disposing of the same to their the defendants' own use, and prostrating, subverting, and injuring the crops, fences, and carth and soil in the declaration mentioned, and undermining a portion of the same closes and parcels of land in the declaration mentioned ; that John Proud deceased, and all his ancestors, whose heir he was, from time whereof the memory of man is not to the contrary until the time of making the indenture hereinafter mentioned, have had, and have been used and accustomed to have, and of right ought to have bad, for himself and themselves, all the coals and veins of coal in and under the said closes and parcels of land in which, &c., and full and free liberty at all times of the year to enter into and upon the said closes and parcels of land in whichi, &c., and to cut, dig into, and excavate the same for the purpose of searching for, mining, and winning the coals in and under the same, and to make adits, shafts, and entrances into the mines of coal and veins of coal in and under the said closes and parcels of land in which, &c., and to do all necessary acts therein and thereon for the purpose aforesaid. The plea then alleged, that by deeds of lease and release, dated the 2d