PART II. CLASS III. Approvement and Inclosure of Commons. [No. I.] 20 Henry III. c. 4, (STATUTE of MERTON.)— In what Cases Lords may approve against their Tenants. (1) Ed. 3, 67. Mirror, 318. Enforced by 3 & 4 Ed. 6, c.3. ALSO because many great men of England (which have infeoffed 20 Hen. III. knights and their freeholders of small tenements in their great c. 4. manors) have complained that they cannot make their profit of the 2 Inst. 84. residue of their manors as of wastes woods and pastures, whereas the 1 Roll. 365. same feoffees have sufficient pasture, as much as belongeth to their tene- 3 Ed. 3, 39. ments; it is provided and granted, That whenever such feoffees do 7 bring an assize of novel disseisin for their common of pasture, (2) and it is knowledged before the justicers, that they have as much pasture as sufficeth to their tenements, and that they have free egress and regress from their tenement unto the pasture, then let them be contented therewith; and they on whom it was complained shall go quit of as much as they have made their profit of their lands wastes woods and pastures; and if they alledge that they have not sufficient pasture, or sufficient ingress and egress according to their hold, then let the 'truth be inquired by assize; and if it be found by the assize, that the 'same deforceors have disturbed them of their ingress and egress, or 'that they had not sufficient pasture (as before is said) then shall they recover their seisin by view of the inquest: so that by their discretion and oath the plaintiffs shall have sufficient pasture, and sufficient ingress and egress in form aforesaid; and the disseisors shall be amerced ' and shall yield damages, as they were wont before this provision. And if it be certified by the assise that the plaintiffs have sufficient pasture with ingress and egress, as before is said, let the other make their profit of the residue, and go quit of that assize.' (3) (1) A person seised in fee of the soil may approve, although not lord of a manor.---Glover v. Lane, 3 T. R. 445. (2) The statute gives no power to inclose against common of Turbary, Estovers, &c.--2 Inst. 87; nor against a right of tenants to dig gravel---Duberly v. Page, 2 T. R. 391.---Grant v. Gunner, 1 Taunt. 435; but the lord may inclose against common of pasture, although the tenants have also common of Turbary in the same waste, not injuring the Turbary---Strictland v. Fawcett, Willes, 57, Comyns, 551; so if com moners have any other right---Shakespear v. Pippin, 6 T. R. 741. There can be no approver against a grant of common in gross.--Fitzh. Read in stat. Extent, Mar. 1 Taunt. 449, · note. There can be approver against common sans nombre, to be ascertained by the greatest number of cattle that has actually been kept.--Anon, 4 Leon, 41. (3) As to the Lord's remedy in Chancery, against disturbance of his right of approver, see. Weekes v. Slate, 2 Vern. 301. [ No. II. ] 13 Edward I. stat. 1, c. 46. (II WESTMINSTER.) -Lords may approve against their Neighbours. Usurpation of Commons during the Estate of particular Tenants. st. 1, c. 46. "WHEREAS in a statute made at Merton it was granted that Lords 13 Edw. I. of wastes woods and pastures, might approve the said wastes "woods and pastures, notwithstanding the contradiction of their tenants, 1 Roll. 365. 2 Inst. 473. 20 H. 3, st. 1, c. 4. 11 Co. 74. 4 Co. 38. 13 H. 7, f. 13, Dyer, 47, 216. 339. Cro. Car. 281, 440, 580. No. II. 13 Edw. I. Lords may approve against their Neighbours, leaving them sufficient Common. Enforced by 3 & 4 Ed. 6, c. 3. 7 H. 4, f. 38. Skinner, 93. 66 "so that the tenants had sufficient pasture to their tenements, with free egress and regress to the same: And forasmuch as no mention was "made between neighbours and neighbours, many lords of wastes woods stat. 1, c. 46. " and pastures have been hindered heretofore by the contradiction of “neighbours having sufficient pasture: and because foreign tenants have "no more right to common in the wastes woods or pastures of any lord "than the lord's own tenants;"it is ordained, That the Statute of Merton, ' provided between the lord and his tenants, from henceforth shall hold place between lords of wastes woods and pastures and their neighbours, saving sufficient pasture to their tenants and neighbours, so that the lords of such wastes woods and pastures may make approvement of the residue. And this shall be observed for such as claim pasture as appurtenant to their tenements. But if any do claim common by special feoffment or 'grant for a certain number of beasts, or otherwise which he ought to have of common right, whereas covenant barreth the law, he shall have such recovery as he ought to have had by form of the grant made unto him. By occasion of a windmill sheepcote deyry enlarging of a court necessary, or courtelage, (1) from henceforth no man shall be grieved by assize of novel disseisin for common of pasture. And where sometime it chance.h, that one having right to approve doth then levy a dyke or an hedge, and some by night, or at another season, when they suppose not to be espied, do overthrow the hedge or dyke, and it cannot be known by verdict of the assize or jury who did overthrow the hedge or dyke, and men of the towns near will not indict such as be guilty of the fact, the towns near adjoining shall be destrained to levy the hedge or dyke at their own cost, and to yield damages. And where one, having no right to common, usurpeth common what time an heir is within age, or a woman is covert, or while the pasture is in the hands of tenants in dower, by the courtesy or otherwise for term of life or years, or in fee-tail, and have long time used the pasture, many hold opinion that such pastures ought to be said to belong to the freehold, and that the possessor ought to have action by a writ of novel disseisin, if he be deforced of such pasture; bat from henceforth this must be holden, that such as have entered within the time that an assise of ‹ mortdauncester bath lien, if they had no common before, shall have no recovery by a writ of novel disseisin, if they be deforced.'" For what Cause one may ap prove. 6 A Ditch or Hedge of Ground ap proved cast down. By 6 Geo. I. c. 16, sect. 1, the remedy of the Act is extended to the Destroyers of Trees, &c. by night or day,&c. Usurpation of Common during the Estate of particular Tenants. 1 Lutw. 141, 165. (1) These things are put by way of instance, and the Lord may erect a house for a beastkeeper---2 Inst. 476; but he can only build a house for his own habitation, or that of his shepherd, and so it must be alledged.---Nevil v. 3 & 4 Ed. VI. c. 3. Every person bringing an Assise upon any Branch of either of the Statutes touch ing Approvement of Wastes, &c. shall have treble Damages. 20 H. 3, c. 4. [ No. III. ] 3 & 4 Edward VI. c. 3.—An Act concerning the Improvement of Commons and waste Grounds. WHERE in the Parliament holden at Merton in the twentieth year of the reign of King HENRY the Third it is contained, That for because many great men of England which had enteoffed knights and other their 'free tenants of small tenements in their great manors, did complain that they might not make their profits of the residue of their manors, as of waste woods and pastures where the same feoffees had sufficient pasture as much as belonged unto their tenements, it was provided and granted, That whatsoever persons so enfeoffed brought assize of novel disseisin of their common of pasture, and before the justices it were recognized 'that they had as much pasture as did suffice unto their tenements, and that they had free ingress and egress into and from their tenements 6 unto their pasture, that then they should therewith be contented, and that they upon whom they had complained should depart quiet with that, that they might make their profit of their lands wastes woods and pastures; and if it were said that they had not sufficient pasture or 3 & 4 'sufficient ingress and egress as much as doth belong unto their tene- 6 By the Stat. bours. II. And where also in the Parliament holden at Westminster after 'Easter the thirteenth year of the reign of King EDWARD the First, it 13 Ed. I. st. 1, was ordained, That where in the statute made at Merton, it was agreed c. 46, Lords of 'that lords of wastes woods and pastures might approve themselves of Manors may their wastes woods and pastures, notwithstanding the gainsaying and approve against 'contradiction of their tenants, whiles the same tenants had sufficient their Neighpasture to their tenements, with free ingress and egress into and from the same; And for that no mention was made between neighbour and neighbour, many lords of wastes woods and pastures unto that time were let by contradiction or gainsaying of neighbours having sufficient pasture; And forasmuch as foreign tenants have no greater right of proper 'commoning in the wood waste or pasture of any lord than the ' tenants of the same lord; it was from thenceforth ordained, That the 'said statute provided at Merton between the lord and his tenants should have place from thenceforth between the lords of wastes woods and pastures and neighbours; saving sufficient pasture to their men and neighbours; so that the lords of the same wastes woods and pastures may approve themselves of the residue; and that the same should be 'observed of them that claim pasture as pertaining to their tenements : But if any man claim common of pasture by special feoffiment or grant to a certain number of beasts, or otherwise than of common right he ' ought to have it, where covenant doth abrogate the law, he shall have such recovery as he ought to have by form of the grant to him inade. And that by occasion of a windmill sheephouse dairy, augmentation cr increase of any court necessary or curtilage, from thenceforth no man should be grieved by assise of novel disseisin of common of pasture: And forasmuch as it hapneth sometime that some man having right to For what Causes approve to himself hath made or levied a ditch or hedge, and other, by any may ap night er such other time when they believe their deed should not be prove Common. 'known, do or will cast down the same ditch or hedge, and that it cannot be known by verdict of assise or jury who did cast down the same ditch A Ditch or or hedge, nor the men of the next towns will indict them that be guilty Hedge of of the same deeds; then the next townships adjoining about the same Ground ap'shall be distrained to levy or make up the same ditch or hedge at their proved, cast proper costs, and to yield damages; as in the said estatute among other down by perthings more plainly appeareth. sons unknown. III. And forasmuch as the aforesaid estatutes been thought beneficial A Confirmation 'for the commonwealth of this realm of England;' Be it enacted by the of the aforesaid King our Sovereign Lord, with the assent of the Lords Spiritual and Statute of 20 Temporal and the Commons in this present Parliament assembled, and Hen. 3, c. 4, by the authority of the same, That all and every the said statutes, and and 13 Edw. I. all branches clauses articles sentences matters and points contained and Stat. 1, c. 46. specified in them, and every of them now not repealed, shall from hence- Vin. V. 5, 6. forth be good and effectual, and also to stand and be in their full strength force and effect. IV. And because that such persons as shall bring assise of novel Treble Daelisseisin upon the said estatutes or upon any of them, shall by force of mages in an the same estatutes recover but only single damages, which is thought to Assize upon the said Statutes. No. III. 3 & 4 Ed. VI. c. 3. Houses built upon Wastes with 3 Acres of Ground. 31 El. c. 7. The overplus above three Acres shall be laid open. 29 Geo. II. c. 36. Statute of Mer ton. 13 Ed. 3, c. 46. 3 & 4 Ed. 6, c. 3. 35 H. 8, c. 17. be a small recompence for the same: Therefore be it enacted by the authority aforesaid, That all such person and persons as shall at any time hereafter bring assise upon any branch or article of the said estatutes or any of them, and have judgment to recover, shall have his or their dainages trebled by the judgment of the court where such assise and judgment shall be had. V. And where in divers countries of this realm there hath been 'builded upon commons or waste grounds certain necessary houses with 'ground under the quantity of three acres, and not above three acres 'enclosed to and with the same; and in some place there is enclosed a 'garden orchard or pond out of or in such wastes or grounds which exceed not the quantity of two acres or thereabouts, which doth no hurt, and yet is much commodity to the owner thereof and to others;' Be it therefore enacted by the authority aforesaid, That the said two former Acts nor any of them, nor any thing in them or any of them contained, shall extend to any such house ground or other thing so inclosed as is last herein before-mentioned, ne shall cause any person or persons to lose or forfeit any pain damage or penalty for the same. VI. Provided always and be it enacted, That if any such house hath been heretofore builded upon any such waste ground as is aforesaid, and that there be above the number of three acres enclosed to the same, that then the said house and three acres parcel of the same enclosure shall still remain stand abide and continue in like and the same form and degree as it now doth; and that the overplus of the said three acres so enclosed as is aforesaid, shall and may be laid open by the owner or owners of the same wastes; any thing in this Act or in any of the said former Acts to the contrary in any wise notwithstanding. [No. IV. ] 29 George II. c. 36.-An Act for inclosing by the mutual Consent of the Lords and Tenants, Part of any Common for the Purpose of planting and preserving Trees fit for Timber or Underwood; and for more effectually preventing the unlawful Destruction of Trees. WHEREAS by the statute made at Merton, it was provided and granted, That lords of wastes woods and pastures in which their tenants have common of pasture, reserving to their tenants sufficient pasture as much as belongeth to their tenements, with sufficient ingress and egress to the same, may approve the residue of such wastes woods and pastures: And whereas by a statute made in the 'thirteenth year of the reign of King EDWARD the Third, commonly 'called The Statute of Westminster the Second, it was ordained, That the said statute of Merton should hold place between lords of wastes woods and pastures, and their neighbours having common appurtenant therein; and provision is thereby made against casting down dikes and hedges levied by such as have right so to approve: And whereas by an Act made in the third and fourth year of the reign of King EDWARD the Sixth, intituled An Act concerning the Approvements of Moors and Waste Grounds, the said statutes and all articles thereof ' then not repealed were confirmed: And whereas the said provisions for the approvement of wastes woods and pastures have been in many cases rendered ineffectual by the contradiction and dissent of a few persons having right of common in the said wastes woods and pas" tures; who under pretence that sufficient pasture is not reserved to them, disturb the lords of such wastes woods and pastures or their assigns, in the possession of the ground and soil so approved, and discourage them from asserting their right to make or continue such approvement: And whereas the general provisions made by an Act of the thirty-fifth year of the reign of King HENRY the Eighth, and by 'several other Acts of Parliament for preserving woods; and the parti'cular provisions made by two several Acts of Parliament of the twentieth 6 6 No. IV. c. 36. 'year of the reign of King CHARLES the Second, intituled An Act for the Increase and Preservation of Timber within the Forest of Dean; and the other of the ninth and tenth year of the reign of King WILLIAM the 29 Geo. II. 'Third, intituled An Act for the Increase und Preservation of Timber in the New Forest, in the County of Southampton; whereby part of the waste lands of the said several forests are directed to be inclosed and 20 Car. 2, c. 3. kept in severalty for the growth and preservation of timber, have not 9 & 10 W. 3, been duly put in execution: And whereas, for want of a proper supply c. 36. ' of timber of the growth of this kingdom, a great quantity of foreign ' timber is necessarily used for building ships and houses, and for other purposes; and the general price of timber and wood is greatly increased: And whereas many tracts of waste land, unfit for tillage or pasture, but 'capable of producing different kinds of trees, may conveniently be inclosed for the growth of timber and underwood, to the advantage both of the owners of the ground and soil of such wastes, and also such as have right of common therein; and such inclosure will also be of public utility Be it therefore enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled, and by the authority of the same, That it shall and may be lawful to and for his Majesty his Proprietors of heirs and successors, and all other owners of wastes woods and pastures Wastes, &c. and in that part of Great Britain called England, wherein any person or per- Persons having sons, or body or bodies politic or corporate, hath or have right of common right of Comof pasture, by and with the assent of the major part in number and value mon, of the owners and occupiers of tenements to which the said right of common of pasture doth belong, and to and for the major part in number and value of the owners and occupiers of such tenenients, by and with the assent of the owner or owners of the said wastes woods and pastures, and to and for any other person or persons or body politic or corporate, by and with the assent and grant of the owner or owners of such wastes woods may inclose for and pastures, and the major part in number and value of the owners and planting and occupiers of such tenements, to inclose and keep in severalty for the preserving Timgrowth and preservation of timber or unde: wood any part of such wastes ber, &c. woods and pastures, for such time and in such manner and upon such conditions as shall be agreed by them respectively. 11. Provided nevertheless, and be it enacted by the authority aforesaid, If any recomThat in case any recompence shall be agreed to be given for such inclo- pence be agreed sure, to or to the benefit of the owners and occupiers of tenements to to be given; in which the right of common in such wastes woods and pastures doth what manner belong, such recompence shall be made either by a grant of a share of same is to be the profit which shall arise from the sale of the timber or underwood made and apgrowing on the ground or soil so inclosed, or by a grant of other lands plied. tenements or hereditaments; or by some annuity or rent-charge issuing out of the said ground or soil so inclosed, or out of other lands tenements or hereditaments; or shall be paid in money to be placed out at interest on public securities, or laid out in the purchase of lands tenements or hereditaments, or of some annuity or rent-charge issuing out of lands tenements or hereditaments; and the produce of such lands tenements or hereditaments, or such annuity or rent-charge, or the interest of such money until the same shall be laid out in such purchase as aforesaid, shall be paid from time to time to the overseers or overseer of the poor of the said parish or township, and shall be by them or him applied towards the relief of the poor of the parish or township where such wastes woods or pastures shall lie, and accounted for in such manner as the rates for relief of the poor are by law directed to be accounted for; and in case the owner or owners of any such wastes woods or pastures and the major If Lords and part in number and value of the owners and occupiers of the tenements to Tenants join, which such right of common doth belong, shall jointly agree to assign &c. how recomand grant their respective right and interest in any part of the said wastes pence is to be woods or pastures, for the purpose of making such inclosures as aforesaid, made to the to any other person or persons or body politick or corporate; and the Lord, &c. owner or owners of such wastes woods and pastures shall not have an estate in fee-simple therein, or shall be disabled or restrained from alie |