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nor stable belonging to it, but under the shop-window was a sheep-hold, which would contain four or five sheep at a time, but neither horse nor bullock could be kept there : Lord Kenyon, C. J. at the trial, on the northern circuit, being of opinion, that levancy and couchancy was not proved, as the plaintiff had not shewn that he was in possession of land whereon the cattle might be levant and couchant, nonsuited the plaintiff. The court of B. R. afterwards concurred in opinion with the chief justice.

Common of pasture, without land, for a certain number of sheep may be parcel of a manore, and demised and demisable by copy of court-roll; and, if it be thus claimed in pleading by the lord of the manor, the plea will be good, although he does not describe the common as common appendant, appurtenant, or in gross, since it must be taken to be common appurtenant; for, not being claimed as incident to arable land, but to the manor, for a certain number of sheep in the soil of another, it cannot be common appendant; nor can it be taken to be common in gross, being stated in the plea to be parcel of a manor; then it must be common appurtenant, the only remaining sort of common. Common in gross is so called', because it does not appertain to any land, and it must be by grant or prescription.—This species of common may be granted for all manner of cattle, and for an unlimited number, or for a certain number of cattle. If granted for an unlimited number, it seems that the grantee may put on any number of cattle, provided he leaves sufficient common for the lord; if granted for a certain number, the enjoyment of the right is of course limited by the number specified in the grant. A corporation may prescribe for common in gross, for cattle levant and couchant within the town, but not for common in gross sans nombre 8. A right of common in gross is tenementh within the stat. 13 and 14 Car. 2. c. 12. s. 1. A copyholder who has common in a waste, without the manor of which his copyhold is parcel, has it annexed to the land, and not to his customary estate, and must prescribe in a que estate through his lord, for him and all his customary tenants thereof. And such common without the manor is not extinct by enfranchisement of the copyhold, though there be no words of re-grant. And after enfranchisement, the feoffee must prescribe in a que estate of his lord for himself and his customary tenants, till the time of the enfranchisement, and since that time for the feoffee and his heirs, as appurtenant to the enfranchised tenementi. e Musgrave v. Cave, Willes, 319. h R. v. Dersingham, 7 T. R. 671. Inst, 122, a.

i Barwick v. Matthews, 5 Taunt. 365. Mellor v. Spateman, 1 Saund. 343.

f 8

III. Of the Interest of the Owner of the Soil subject to Right

of Common; and herein of Approvement and Inclosure.

moners.

In land subject to a right of common, the right of the lord or owner of the soil (10) ought to be so exercised as not to injure the right of common. But the right of the commoners may be subservient to the right of the lord in the soil, so that the lord may dig clay-pits there, or empower others to do so, without leaving sufficient herbage for the commoners, if it can be proved that such a right has been constantly exercised by the lord. So the lord may', with the consent of the homage, grant part of the soil for building, if he has immemorially exercised such right. The immemorial exercise of such right by the lord is evidence that he reserved that right to himself, when he granted the right of common to the com

In like manner, there may be a valid custom in a manor, within the limits of an ancient forest belonging to the crown, for the lord, with the assent of the homage, to grant parcels of the waste to be holden by copy of court-roll, and for the grantees to inclose the same, and to hold them in severalty against the commoners, and in exclusion of their rights m If a commoner, having a right of common for one beast, put on two ", the lord can only distrain the one put on last, unless they were both put on together; and it must be shewn in a plea (justifying the taking as a surcharge,) whether they were put on together or separately, and if the latter, which was put on first (11). k Bateson v. Green, 5 T. R. 411. m Boulcott v. Winmill, 2 Campb. 261. | Folkard v. Hemmett, 5 T. R. 417. n. n Ellis v. Rowles, Willes, 638.

(a)

(10) The customary tenants of a manor may allege a custom to have the sole and several pasture in the soil of the lord for the whole year, and thereby exclude the lord. Hoskins v. Robins, 2 Saund. 324. But even in this case the lord may distrain, for other damage in his soil, the cattle of any who have no right to put in their cattle, although he has not any interest in the soil. Per Hale, C. J. S. C. for he has an interest in the mines, trees, bushes, &c. Per Cur. 1 Vent. 164.

(11) In replevin for taking the plaintiff's sheep on Whitemanslie Down, the defendant avowed taking the cattle doing damage to his right of common; the plaintiff in his plea in bar claimed a right of common for himself as tenant of eight acres of land, for two sheep

By stat. 20 H. 3. c. 4.° lords of woods, wastes, and pastures, in which their tenants have common of pasture, may approve such wastes, &c. provided sufficient pasture, with a sufficient ingress and egress, is left to the tenants.

If the lord make a feoffment of the waste, &c., the feoffee, may approve, leaving a sufficiency of common; and this rulé holds, although the lord continues seized of the manor within which the waste lies : for though in the statutes of Merton and Westminster the lord only is mentioned, yet as in those days statutes were not drawn with that fulness of expression with which they are at the present time, the term, " lord of the manor” must be considered as equivalent to “owner of the soil,” where they stand in the same predicament. It is not necessary, therefore, that the person approving should be lord of the manor P, a seisin in fee of the waste, &c. is sufficient. It is worthy of remark, that the statute of Merton does not empower the lord to approve against any other right of common, except that of common of pasture, appendant or appurtenant. It does not extend to common in gross", the words of the statute being quantum pertinet ad tenementa sua, nor to common of piscary, of turbary S, estovers, and the like, the words used throughout the statute being pastura et communia pasturæt. But though the lord cannot approve against common of turbary, yet where there is common of pasture, and common of turbary in the same waste 4, the com

o Rxtended by stat. 13 Edw. 1. stat. I. 9 2 Inst. 87.

c. 46. to approvements by lords r 2 Inst. 86. against their neighbours Confirmed s Grant v. Gunner, 1 Taunt. 435. by stat. 3 and 4 Edw. 6. c. 3. See t 2 Inst. 87. also stat. 29 G. 2. c. 36. amended u Fawcett v. Strickland, Willes, 57. by stat. 31 G. 2. c. 41.

Com. Rep. 578. S. C. p Glover v. Lane, 3 T. R. 445.

for every acre; the defendant (admitting the right of common claimed by the plaintiff,) replied, that, at the time of the distress, the plaintiff had sixteen sheep on the common, over and above the sixteen that were distrained ; that the defendant left the first-mentioned sixteen to use the common, and only distrained the supernumerary sixteen, with which the plaintiff had overcharged it of his own wrong, which were doing damage to the plaintiff. It does not appear that in this case any objection was made to the replication, for not stating, whether the thirty-two sheep were put on together, or separately. Indeed the only question made was, whether one commoner could distrain the cattle of another commoner, who had surcharged the common, which was determined in the negative; and the plaintiff had judgment. Hall v. Harding and others, B. R. E. 9 Geo. 3. 4 Burr. 2426. 1 B. R. 673. S. C.

mon of turbary will not prevent the lord from justifying an inclosure against the common of pasture, if he leaves sufficient; for they are two distinct rights, and the concurrence of these rights in one person will not make any difference. In like manner the lord of the manor", or his grantee, may justify an approvement or inclosure against tenants having common of pasture, although they have a further right of digging sand, &c. if sufficient common of pasture be left. It is, however, observable y, that if the inclosure operates as an injury to the other rights, the commoner will be entitled to an action on the case for such injury. By the approvement of part, agreeably to the rule laid down in the statute of Merton, that part is discharged of the common, insomuch, that if the tenant who has the common purchases that part, his common is not extinguished in the residue. If the lord incloses any part, and does not leave sufficient common in the residue, the commoner may break down the whole inclosure a. But if the common has been inclosed twenty years, the commoner cannot make an entry, but must bring an assize of common b. A custom for the lord to inclose without limit c is bad, as tending to destroy the rights of the commoner altogether, but a custom to inclose, (even as against a common right of turbary,) leaving sufficiency of common, is good; but the onus of proving a sufficiency left lies on the lord d.

By stat. 29 G. 2. c. 36. the lords and tenants may inclose part of the common for the purpose of planting and preserving trees fit for timber or underwood. And by stat. 31 G. 2. c. 41. these powers are declared to be vested in tenants for life or years determinable on lives.

IV. Of the Remedy for Disturbance of Right of Common.

WHATEVER destroys the right of common is a nuisance, and may be abated by the commoner, provided it can be done without interfering with the lord's right to, or interest in the soil. But if the nuisance cannot be abated, without such interference, the commoner must resort to his action on the case, and have satisfaction in damages. If the right of common be partially injured, the commoner ought not to abate the cause of such injury, more especially if in so doing he must necessarily interfere with the right to the soil. On this principle it was holden, in Cooper v. Marshall, 1 Burr. 265, that a commoner could not justify digging up the soil and destroying the coney-burrows erected in the common by the lord, who was entitled to free warren there. So where the lord had planted trees on the common, and the commoner cut them down, it was holden that the lord might maintain trespass, and that the commoner could not justify the abatement of the trees.

x Shakespeare v. Peppin, 6 T. R. 741. b Creach v. Wilmot, Derby Summ. y Agreed in Fawcett v. Strickland, Ass. 1752. cited by Lawrence, J. in Willes, 57.

Hawke v. Bacon, 2 Taunt. 160. But 2 2 Inst. 87.

see Tapley v. Wainwright, 5 B. & Ad. a 2 Inst. 88. recognized in Arlett v, 395. Ellis and others, 7 B. & C. 346. c Badger v. Ford, 3 B. & A. 153.

d Arlett v. Ellis, 7 B. & C. 346.
e 2 Inst. 88.

The usual remedy adopted by commoners is an action on the case for a disturbance of the right of common, which may be maintained either against the lord or the owner of the soil 8, a stranger, or a commoner. If the action is brought against the wrong doer", title being only inducement, it is not necessary to set it forth; it will be sufficient for the plaintiff to state in his declaration, that he was possessed of a certain quantity of land, &c., and by reason of such possession was entitled to the right, in the exercise of which he was disturbed. In this action the plaintiff must prove an injury sustained, but any injury in the minutest degree is sufficienti; e. g. the taking away the manure which has been dropped on the common by the cattle, although the proportion of the damage sustained by the plaintiff be found to amount to a farthing onlyk; for if, where the injury was small, a commoner could not maintain an action, a mere wrong doer might by repeated torts in course of time establish evidence of a right of common. If, to an action on the case by a commoner for injuring his right of common m, the defendant plead, that he dug turves under a license from the lord, he should add, that “ sufficient common was left for the commoner;" and if he do not, the plaintiff is not obliged to reply, that there was not sufficient common left; because it is the gist of the action, and set forth in the declaration.

f Kirby v. Sadgrove, 6 T.R. 483. B.R. k Pindar v. Wadsworth, 2 East's R.

confirmed in error in Exch. Cha. I 154. See cases cited by Taunton, Bos. and Pul. 13.

J. in Marzetti v. Williams, 1 B. & g Hassard v. Cantrell, Lutw. 101. Ad. 426. and Blofeld v. Payne, 4 B. h Strode v. Byrt, 4 Mod. 418. See & Ad. 410.

also Greenbow v. Ilsley, Willes, 621. I See Patrick v. Greenway, 1 Wms. i Per Lord Ellenborough, C.J. Lidgold Saunders, p. 346. b. n. (2.) v. Butler, Middlesex Sittings after m Greenhow v. Ilsley, Willes, 619.

48 G. 3. B. R. MSS.

n.

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