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Prescription.

Effect of ancient grant.

the intention in him which either the one or the other indicates wbich are material.” (Per Lord Denman, Reg. v. Chorley, 12 Q. B. 519. See Crossley v. Lightowler, L. R., 2 Ch. 482.) The right to hold courts for the determination of civil suits, granted by the king's charter to the steward and suitors of a court of ancient demesne, was held not to be lost by a nonuser of fifty years. (Rex v. The Steward, d'c. of Harering, 5 B. & Ald. 691; Rex v. The Mayor, 8c. of Hastings, Id. 692, n.)

An ancient grant without date did not necessarily destroy a prescriptive right; for it might be either before time of memory, or in confirmation of such prescriptive right, which is matter to be left to a jury. (Addington v. Clode, 2 Bl. Rep. 989.) A plea, that before and at, &c., the defendant and all his ancestors, whose heir he is, from time whereof the memory of man is not to the contrary, have had, and been used and accustomed to have, and of right ought to have had, and the defendant still of right ought to have for himself and themselves, the sole and several herbage and pasturage of and in divers, to wit, 217 acres, &c., of a certain open field, called, &c., was held to be disproved by showing a grant to the defendant's ancestor eighty-one years before for a valuable consideration; and such plea is not aided by the stat. 2 & 3 Will. 4, c. 71, s. 1, which, if relied on, ought to be pleaded. (Welcome v. Upton, 5 Mees. & W. 398. See Reg. v. Westmark, 2 M. & Rob. 305.)

The doctrine as to the grant of a franchise by the crown within time of memory being a determination of a prescriptive claim to the same franchise does not appear to be settled. Where a bishop, having free warren by prescription over the demesne and tenemental lands of a manor whereof he was seised jure ecclesiæ, accepted a grant from the crown to himself and his successors of free warren over the demesne lands of all his manors in England: it was held that, even admitting the grant to have the effect of extinguishing the prescription as to the demesne lands (which the court considered to be at least doubtful), it could not affect it over the other lands of the manor. (Earl of Carnarvon v. Villebois, 13 Mees. & W. 313.).

Formerly a prescription could not run against the king, as no delay in resorting to his remedy would bar his right. The maxim was nullum tempus occurrit regi (2 Inst. 273; 2 Roll. 264, 1. 40; Com. Dig. Prescription (F. 1); Broom's Maxims, pp. 65–68, 5th ed.). Liberties and franchises were excepted in the statute 9 Geo. 3, c. 16, limiting the claims of the crown to sixty years (see post, note on the limitation of the rights of the crown). By 32 Geo. 3, c. 58, the crown is barred in informations for usurping corporate offices or franchises by the lapse of six years. (See Bac. Abr., 7th ed., Prerogative (E. 6), 467, and stat. 7 Will. 4 & 1 Vict. c. 78, s. 23; Reg. v. Harris, 11 Ad. & Ell. 518.) It will be observed that by the stat. 2 & 3 Will. 4, c. 71, ss. 1, 2 (ante, pp. 1, 6), the crown is placed upon the same footing with the subject as to the rights affected by that act.

Prescription against the crown.

Several species of common.

(2.) OF RIGHTS OF COMMON. Common is a right or privilege which one or more persons claim to take or use in some part or portion of that which another man's lands, waters, woods, &c., naturally produce, without having an absolute property in such lands, waters, woods, &c. It is called an incorporeal right, which lies in grant, as originally commencing by some agreement between lords and tenants, for some valuable purposes, which by age being formed into a prescription continues good, although there be no deed or instrument in writing that proves the original contract or agreement. (4 Rep. 37 a ; 2 Inst. 65; Vent. 387 ; Bac. Abr. Common.) Common has been divided into five sorts, viz. 1st, Common of pasture, which is a right or liberty that one man or more bave to feed or fodder their beasts or cattle in another man's land. 2ndly, Common of turbary, or the liberty of cutting turves in another's soil, to be burnt in a house. (See Noy, 145; 7 East, 121; 3 Lev. 165.) 3rdly, Common of estovers, which is a right of taking trees, loppings, shrubs, or underwood, in another's woods, coppices, &c. (See Cro. Jac. 25, 256; 5 Rep. 25 a; 4 Rep. 87 a; Cro. Eliz. 820 ; Plowd. 381.) 4thly, Common of piscary, or a right and liberty of taking fish in another's pond, pool, or river. And, Of Rights of 5thly, a liberty which in some manors the tenants have, of digging and Common. taking sand, gravel, stone, &c. in the lord's soil. (Bac. Abr. Common, (A.).) All claims of this kind, in order to be valid, must be made with some limitation and restriction. (Clayton v. Corby, 5 Q. B. 419; see post, p. 47.)

A party may prescribe to take the sole and several herbage which may be What commongranted; (Co. Litt. 122; Hoskins v. Robins, Pollexf. 13; Potter v. North, 1 able rights may Vent. 385; Welcome v. Upton, 6 Mees. & W.543;) although it was formerly

be prescribed for. doubted. (North v. Cox, 1 Lev. 253.) Instances of sole pasturage are to be found in the South Downs, in Sussex, and they are frequently transferred in gross; it is the same with the cattle-gates in the north of England, although some have thought the owners of them are tenants in common of the soil. (Welcome v. Upton, 6 Mees. & W. 541, 542; Rex v. Whirley, 1 T. R. 137.) The grant of vesturam terre or herbagium terræ does not pass the land or soil itself. (Co. Litt. 4 b.) A cattle-gate is not a more extensive right than the above, and does not include the right to the soil. (Rigg v. Earl Lonsdale, 1 H. & N. 923, 936.) A person may prescribe to have the sole and several pasture, vesture or herbage, for a limited time in every year, in exclusion of the owner of the soil. (Fitz. Prescription, 51 ; Co. Litt. 122 a; 2 Roll. Abr. 267 (L.) pl. 6; Winch's Rep. 5; Hutt. 45.) And a like prescription, in exclusion of the owner of the soil for the whole year, was held good, as it did not exclude the lord from his profits of mines, trees, and quarries. (Hoskins v. Robins, 2 Saund. 324; S. C., 2 Lev. 2; Pollexf. 13; 1 Mod. 74.) So a tenant may prescribe to have all the thorns growing upon such a place in exclusion of the owner of the soil. (Dorglass F. Kendal, Cro. Jac. 256.) But a man cannot prescribe to have common eo nomine for the whole year, in exclusion of the lord, for this is held to be repugnant to the nature of the thing. (Co. Litt. 122 a; 1 Roll. Abr. 396 (A.), pl. 1, 2; 2 Roll. Abr. 267, pl. 3 ; 2 Lev. 268 ; 1 Ventr. 395.). However, it is said that the lord may by custom be restrained to a qualified right of common during a part of the year. (Yelv. 129; 1 Brownl. 187; Cro. Jac. 208, 257.) So it is said the lord may be restrained, together with the commoners, from using a common at all during a part of the year ; (1 Roll. Abr. 405, 406); and that the commoners may prescribe to have common in exclusion of the lord for part of a year. (2 Roll. Abr. 267 (L.), pl. 1; 1 Wms. Saund. 353, n. (2).) So a man may prescribe to have a separate fishery, to the exclusion of the owner of the soil wholly from fishing; for he has still the profit of the soil and water. (Co. Litt. 122 a, and n.; Ventr. 391. See 2 Sannd. 326.)

The claim in right of a freehold estate and the lands which formerly belonged to the manor farm, of a separate right of feeding and folding an unlimited number of sheep, is not a claim of a right of common, but of something in the nature of a separate right of feeding and folding, (Kielway, 198 a; Punsany and Leader's case, 1 Leon. 11,) which may have arisen out of an exception made by the lord upon granting the lands, or it may have been created by an act of parliament. (Iratt v. Mann, 3 Man. & G. 699.)

Common of pasture is, where one person has, in common with other Common of persons, the right of taking by the months of his cattle the herbage growing pasture. on the land of which some other person is the owner. This species of common is either appendant, appurtenant or in gross. (Selw. N. P. Common, s. 2.)

Common appendant is a right belonging to the owners or occupiers of Common ap. arable lands to put commonable beasts upon the lord's waste, and upon the pendant, lands of other persons within the same manor. Commonable beasts are either horses and oxen to plough the land, and cows and sheep to manure it. (Co. Litt. 122 a.) This as matter of universal right was originally permitted not only for the encouragement of agriculture but for the necessity of the thing. For when

lords of manors granted out parcels of land to tenants for services either done or to be done, these tenants could not plough or manure the land without beasts. These beasts could not be sustained without pasture, and pasture could not be had but in the lord's wastes and in the uninclosed

of Rights of Common.

Meaning of levant and couchant.

fallow grounds of themselves and the other tenants. The law therefore annexed this right of common as inseparably incident to the grant of the lands. (2 Bl. Com. 33 ; Tyrringham's case, 4 Rep. 36 a; 2 Inst. 85.)

There is no general common law right of tenants of a manor to common appendant in the waste. Parke, B., said, although there are some books which state that common appendant is of common right, and that common appendant is the common law right of every free tenant in the lord's wastes, (see Mellor v. Spateman, 1 Wms. Saund. 346 d, 6th ed.; Bennett v. Reeve, Willes, 227; Com. Dig. Comm. B.,) it is not to be understood that every tenant of a manor has by common law such a right, but only that certain tenants have such a right, not by prescription, but as a right at common law, incident to the grant. The right therefore is not a common right of all tenants, but belongs only to each grantee, before the stat. Quia emptores, of arable land by virtue of his individual grant and as incident thereto; and it is as much a peculiar right of the grantee as one derived by express grant, or by prescription, though it differs in its extent being limited to such cattle as are kept for ploughing and manuring the arable land granted, and as are of a description fit for that purpose; whereas the right by grant or prescription has no such limits and depends on the will of the grantor. (Lord Dunraven v. Llewellyn, 15 Q. B. 810, 811.) As to this decision see Williams' Real Property, Appendix C., 463, 9th ed., and the remarks of Lord Romilly in Warrick v. Queen's College, Oxford, L. R., 10 Eq. 123.

Common appendant may be claimed in pleading as appendant, without laying a prescription, although appendancy implies a prescription. (Harg. Co. Litt. 122 a, n. 2.) It can only be claimed in the lord's wastes (2 Inst. 85; 1 Roll. 396; 4 Rep. 37), for the claimant's own commonable cattle levant and couchant upon the land. (Ib.; Burr. 320.) A right of common for cattle “levant and couchant," upon inclosed land, extends to such cattle as the winter eatage of the land, together with the produce of it during the summer is capable of maintaining (Whitelock v. Hutchinson, 2 Mood. & Rob. 205; 5 T. R. 46; Willes, R. 227; 8 T. R. 396; Willis v. Ward, 2 Chit. 297.) In other words the right is governed by the number of cattle which the commoner has the means of housing and providing for in the winter. (Dyce v. Hay, 1 Macq. H. L. C. 313.) Levant and couchant expresses a measure of the number of cattle that may be put in, and does not necessarily refer to cattle actually fed upon the particular land. (Johnson v. Barnes, 27 L. T., N. S. 157. See Carr v. Lambert, L. R., 1 Exch. 168.) This species of common must bave existed from time immemorial (1 Roll. Abr. 396), and only arises in the case of grants of arable land. (Warrick v. Queen's College, Oxford, L. R., 6 Ch.730.) It might formerly be claimed as appendant to a cottage, because by 31 Eliz. c. 7 (repealed by 15 Geo. 3, c. 32), it was requisite for a cottage to have four acres of land attached to it. (Emerson v. Selby, 1 Salk. 169 ; 2 Lord Raym. 1015.) Common appendant can only be claimed for such cattle as are necessary for tillage, as horses and oxen to plough the land, and cows and sheep to manure it. (Co. Litt. 122 a.) Common appendant is so necessarily incident to the land, that it cannot be severed from it, and, therefore, however often the land may be divided, every parcel of it is entitled to common appendant. (Willes, 240.) As to whether the right to common appendant is extinguished by building on the land in respect of which it is claimed, see Warrick v. Queen's College, Oxford, L. R., 6 Ch. 730.

Common appurtenant may be claimed as well by grant within time of memory as by prescription; and after a unity of possession in the lord of the land, in respect of which the right of common was claimed with the soil and freehold of the waste, proof that the lord's tenant of the land had for fifty years past enjoyed the right of common on the waste, is evidence for the jury to presume a new grant of common as appurtenant, so as to support a count in an action by the tenant for surcharging the common declaring upon his possession of the messuage and land with the appartenances, and that by reason thereof he was entitled of right to the common of pasture, as belonging and appertaining to his messuage and land ; and also to support another count, in substance the same, alleging his possession of the messuage and land, and that by reason thereof he was entitled to com

Common appurtenant,

mon of pasture. (Corlam v. Slack, 15 East, 108.) This species of common Of Rights of though frequently confounded with common appendant, differs from it in Common. many circumstances. It may be created by grant, whereas common appendant can only arise from prescription. It may be claimed as annexed to any kind of land, whereas common appendant can only be claimed on account of ancient arable land. (4 Rep. 37 a.) And it may be not only for beasts usually commonable, such as horses, oxen and sheep, but likewise for goats, swine, &c. (1 Roll. Abr. 399.) Common appurtenant for a fractional part of a cow was claimed in Nicholls v. Chapman (5 H. & N. 643; 29 L. J., Ex. 461; 8 W. R. 664). A person may claim common appartenant for a certain number of cattle, in which case the cattle of a stranger may be put upon the common, as no injury can arise to the owner of the soil as the number is ascertained. (Bac. Abr. 96; Richard v. Squibb, 1 Ld. Raym. 726; see Stevens v. Austin, 2 Mod. 185; Thornel v. Lassels, Cro. Jac. 27.) The principle furnished by Potter v. North (1 Wms. Saund. 635; Hoskins v. Robins, 2 Wms. Saund. 726), as to claims to common by custom or prescription, seems to be to ascertain the extent of the rights conferred, and the rights reserved by the grant, and to see whether the act be in derogation of the latter. Thus, where tenant of B. prescribed to have for himself and his tenants, &c., occupiers of the farm of B., the sole and exclusive right of pasture and feeding of sheep and lambs on L. as to the said farm of B. belonging and appertaining: it was held, that this did not entitle him to take in the sheep and lambs of other persons to pasture in L., for that by the terms of the grant some interest in the pasture was reserved to the lord, and the above practice was prejudicial to such interest. (Jones v. Richard, 6 Ad. & Ell. 530. See 5 Ib. 413.) If the common appartenant be for an uncertain number of cattle, it is limited to the claimant's own commonable cattle levant and couchant upon his lands. (See Earl of Manchester v. Vale, 1 Wms. Saund. 28, ed. 1871; and see further, as to common appurtenant for cattle levant and couchant, Boren v. Jenkin, 6 Ad. & El. 911.) A claim of a right of common without stint, as annexed to an ancient messuage without land, cannot, as such, exist by law. (Benson v. Chester, 8 T. R. 396; Scholes v. Hargrares, 5 T. R. 46.) A right of common appartenant for cattle levant and couchant proved by acts of user for thirty years, and exercised in respect of a tenement formerly in a condition to support cattle, but now and for more than thirty years past turned to different purposes, is not extinguished or suspended by reason of such change in the condition of the tenement, if the tenement is still in such a state that it might easily be turned to the purpose of feeding cattle. (Carr v. Lambert, L. R., 1 Exch. 168.)

A person cannot prescribe for a right of common as occupier of a mes- Claims to common suage. (English v. Burnell, 2 Wils. 258.) And a plea claiming an by prescription. immemorial right of common in occupiers for the time being, was held bad after verdict. (Daries v. Williams, 16 Q. B. 543.) Where a right of common was claimed as appartenant to land, it was held that the owners and occupiers of such land might be joined as plaintiffs in a suit to protect the right. (Commissioners of Sewers v. Glasse, L. R., 7 Ch. 456.)

Where rights of common have been exercised for many years by the freehold tenants of a manor, and also by the inhabitants, the court will presume that the inhabitants claimed through the freehold tenants. And where sach rights have been exercised for many years, the court will try to find a legal origin for those rights, and presume a grant, if necessary. (Warrick v. Queen's College, Oxford, L. R., 6 Ch. 716.) Such rights may be claimed in the case of copyhold tenants of the manor by custom, and in the case of the freehold tenants, by prescription. (16.)

Copyholders may claim rights of common in the wastes of the lord by Claims to common castom. (Gateward's case, 6 Rep. 59.) And it has been held that the by custoin. occupier of a messuage and lands, who had common in the lord's waste, might set up a custom to cut rushes as annexed to his rights of common. (Bean v. Bloom, 2 BI. R. 926; S. C., 3 Wils. 456.) A custom, however, for the tenants of tenements and premises in a manor to have common of

of Rights of

Common. Apportionment of common.

Common because of vicinage.

pasture in the waste of the manor was held bad. (Knight v. King, 20 L. T., N. S. 494.)

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 it is otherwise as to common appurtenant and other kinds of common, as common of estovers or piscary. But both common appendant and common appartenant will be apportioned on alienation of part of the land to which the common is appendant or appartenant. (Co. Litt. 122 a, 164 a; Tyrringham's case, 4 Rep. 36; Wild's case, 8 Rep. 78; O'Hare v. Fahy, 10 Ir. C. L. R. 318.)

The rent-charges under the acts for the commutation of tithes in England and Wales, in respect of the tithes of common appendant or appurtenant, are to be a charge on the allotments thereafter to be made in respect of the lands to which the right of common is attached. (2 & 3 Vict. c. 62, s. 14.)

Common because of vicinage or neighbourhood, is not strictly a right of common. It happens where the inhabitants of two townships which lie contiguous to each other have usually intercommoned with each other, the beasts of the one straying mutually into the other's fields without any molestation from either. It is only a permissive right, intended to excuse what, in strictness, is a trespass in both, and to prevent a multiplicity of suits. (Musgrove v. Cave, Willes, 322.) And therefore either township may inclose and bar out the other, though they have intercommoned time out of mind. Neither hath any person of one town a right to put his beasts originally into the other's common; but if they escape and stray thither of themselves, the law winks at the trespass. (Co. Litt. 121, 122; 4 Rep. 38; 2 Bl. Comm. 33.) The position, that this species of common is not a right, but matter of excuse for a trespass, is sufficiently established. (Wells v. Pearcy, 1 Bing. N. C. 556; 1 Scott, 426; Gullett v. Lopes, 13 East, 348.) Although it may be claimed by prescription, it is rather matter of immemorial custom. The substance of the custom is, that cattle lawfully on one common have been used to stray upon the other. All that it is necessary therefore for the pleadings to show is, that the cattle were lawfully on their own common before they strayed, and that is done by showing thirty years' user under the statute 2 & 3 Will. 4, c. 71. (Prichárd v. Powell, io Q. B. 589.) Reputation may be given in evidence in support of the immemorial right of such common so pleaded. (Ib.) If to an action of trespass in the common called A., the defendant plead that A. and B. commons lie open to each other, and then prescribe for a right in both commons, the plaintiff must traverse the whole prescription. (Morewood v. Wood, 14 East, 327.) The plaintiff being possessed of a house and land in E., had for sixty years exercised rights of common in W.; it appeared at the trial that this was done near the boundary of two commons of W. and E., which lay open and uninclosed, and adjacent to each other, and that the parties exercising the right did not at the time know the exact boundary; that the plaintiff had on the previous inclosure of the common at E., obtained an allotment there in respect of his estate: it was held, that it was properly left to the jury to say whether the evidence was referable to an exercise of the right in E., and a mistake of the boundary, or to an exercise of the right in W. (Hetherington v. Vane, 4 B. & Ald. 428.) Common pur cause de vicinage cannot be set up as an excuse for cattle rambling from downs subject to common of pasture into downs of which the owner has exclusive possession, notwithstanding there be no fence or visible boundary separating the downs. (Heath v. Elliot, 4 Bing. N. C. 388; 6 Scott, 172.)

To establish a right of common pur cause de ricinage an intercommoning between the two districts must be alleged and proved. It is not enough to show that there was no fence between the two districts, and that cattle strayed from one to the other, but were constantly either driven back by their own respective owners, or turned off by the owners of the land into which they had strayed. (Clarke v. Tinker, 10 Q. B. 604.) It seems that a plea is bad, after verdict, which professes to show a common pur cause de ricinage by usage between the close of an individual and a waste or common. (IV.)

Evidence.

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