ments for his own benefit, and not to hold them as he held the farm to which the encroachments were adjacent. (Doe d. Lewis v. Rees, 6 Carr. & P. 610.) This doctrine originated in those cases where the landlord was lord of the manor, and the tenant encroached upon the waste. (Per Lord Campbell, C. J., 2 Ell. & Bl. 353.) Where a tenant who holds under the lord of a manor encroaches upon the waste, he is presumed to have approved against the commoners for the benefit of the lord. In other cases, when the power to encroach is derived from the occupation of the premises held of a landlord, and the encroachment is occupied as if it was part of the holding, then at the end of the tenancy the presumption as between the landlord and tenant is, that it is part of the holding, and it belongs to the landlord. (Doe d. Croft v. Tidbury, 14 C. B. 304. See p. 324.) Such presumption may be rebutted by the special circumstances of the case. (Berney v. Bickmore, 8 L. T., N. S. 353.) The presumption was held to prevail where the landlord was not lord of the waste (Doe d. Lloyd v. Jones, 15 M. & W. 380), and was not rebutted by the fact that the encroachment was separated from the tenant's holding by a road. (Andrews v. Hailes, 2 Ell. & Bl. 349.) The presumption in favour of the landlord only prevails as against the tenant, and not as against the rights of a third party. (Doe d. Baddeley v. Massey, 17 Q. B. 373.) It is laid down in all the cases, whether the inclosed land is part of the waste or belongs to the landlord or a third person, that the presumption is, that the tenant has inclosed it for the benefit of his landlord, unless he has done some act disclaiming the landlord's title. Parke, B., observed, "I am disposed to discard the definition, that the encroachment is made 'for the benefit of the landlord,' and to adopt that of Lord Campbell, viz., that the encroachment must be considered as annexed to the holding, unless it clearly appears that the tenant made it for his own benefit. It is not necessary that the land inclosed should be adjacent to the demised premises; the same rule prevails where the encroachment is at a distance. That is now law, and I must add, that even though at the time of making the encroachment there is nothing to rebut the presumption that the tenant intended to hold it as a portion of his farm, yet circumstances may afterwards occur by which it may be severed from the farm; for instance, if the tenant conveys it to another person, and the conveyance is communicated to the landlord, then it can no longer be considered as part of the holding. But if the landlord is allowed to remain under the belief that the encroachment is part of the farm, the tenant is estopped from denying it, and must render it up at the end of the term as a portion of the holding." (Kingsmill v. Millard, 11 Exch. 318, 319. Sec further, Earl of Lisburne v. Daries, L. R., 1 C. P. 259; and Whitmore v. Humphries, L. R., 7 C. P. 1. This presumption does not apply where the tenant is in occupation of the waste land before entering upon his tenancy. (Dixon v. Batý, 14 W. R. 836.) Of Rights of By the statute of Merton (20 Hen. 3, c. 4), and by subsequent statutes Right to approve. (29 Geo. 2, c. 36, and 31 Geo. 2, c. 41), the lord of a manor may inclose so much of the common as he pleases, for tillage or wood ground, provided he leaves common sufficient for such as are entitled to rights of common. This inclosure, when justifiable, is called in law "approving," an ancient expression signifying the same as "improving.” (2 Bl. Com. 34.) The onus of showing that sufficient waste is left for the commoners lies upon the lord. (Betts v. Thompson, L. R., 6 Ch. 732.) A custom for tenants to approve by the lord's consent, and by presentment of the homage of the court baron, does not restrain the lord's right to approve. (2 T. R. 392, n.) The lord may dig clay pits on the common without leaving sufficient herbage, if it can be proved that such right has been immemorially exercised. (Bateson v. Green, 5 T. R. 411.) If this decision imports that a lord, after granting rights of common, may help himself to any portion of the common land to the exclusion of his grantees, such a doctrine is incompatible with many other cases, and cannot be supported on principle. (Per Lord Denman, C. J., 5 Q. B. 729, 730. See Of Rights of Inclosure acts. Inclosure commissioners. Folkard v. Hemmett, 5 T. R. 417.) A custom for the owners of a waste to set out to the owners of certain ancient messuages portions of the waste to be by them held in severalty for getting turves therein, and when the portions set out are cleared of turves, for the owners of the waste to inclose and approve such portions, to hold at their pleasure in severalty for ever, freed of all common of turbary and pasture, good. (Clarkson v. Woodhouse, 5 T. R. 412, n.; and see Bateson v. Green, 5 T. R. 411; Place v. Jackson, 4 D. & R. 318; 2 Atk. 189.) A person seised in fee of part of the waste, although he be not lord, may approve without the consent of the homage, provided he leaves a sufficiency of common for the tenants of the manor. (Glover v. Lane, 3 T. R. 445.) But there can be no approvement against the tenants of a manor who have a right to dig gravel on the wastes, and to take estovers (Duberley v. Page, 2 T. R. 391; see Grant v. Gunner, 1 Taunt. 435), although the lord may approve against common of pasture by the statute of Merton (20 Hen. 3, c. 4), notwithstanding there may be other rights of common against which he cannot approve. (Shakespear v. Peppin, 6 T. R. 741.) On the trial of an issue between the lord of a manor and a commoner as to the right of the lord to inclose a portion of the waste, leaving a sufficiency of common for those having a right of common, the waste there being part of a royal forest: it was held, that the right of the crown to turn deer on the waste did not form an element for the consideration of the jury on the question of sufficiency of common in a case where no deer had been turned on the waste for upwards of twenty years. (Lake v. Plaxton, 10 Exch. 196; 24 Law J., Exch. 52.) An owner pur autre vie of a common may prove under the stats. 20 Hen. 3, c. 4, and 13 Edw. 1, st. 1, c. 46. The owner of a common may erect thereon a house necessary for the habitation of beast-keepers, for the care of the cattle of himself and the other persons having rights of common there. So he may erect a house necessary for the habitation of a woodward to protect the woods and underwoods on the common. A plea justifying the erection of a house for such beast-keepers need not state the names of the other commoners, nor that they assented to the appointment of beastkeepers. To an action on the case for a continuing disturbance of common, the defendant pleaded an approvement of the locus in quo, "leaving sufficient common of pasture for the said plaintiff and all other persons entitled thereto, together with sufficient ingress and egress to and from the same, according to the form of the statute, &c.:" it was held, that the plea sufficiently showed that enough of common was left at the time of the approvement, and in the place where the plaintiff was entitled to enjoy it. (Patrick v. Stubbs, 9 Mees. & W. 830.) The greater part of the commons in England have been inclosed under local acts of parliament. The 41 Geo. 3, c. 109, called the General Inclosure Act, consolidated certain provisions which had usually been inserted in acts of inclosure, and facilitated the mode of proving the several facts usually required on the passing of such acts. The 1 & 2 Geo. 4, c. 23, amended the law respecting the inclosure of open fields, common, and waste lands in England. The 3 & 4 Will. 4, c. 87, remedied defects in titles to real property allotted under inclosure acts, in consequence of the award not having been enrolled, or not having been enrolled within the time limited by the several inclosure acts, and authorized the appointment of new commissioners where the same should have been omitted. Further facilities for the inclosure of open and common, arable, meadow and pasture lands and fields in England and Wales were given by stat. 6 & 7 Will. 4, c. 115; 3 & 4 Vict. c. 31. By 8 & 9 Vict. c. 118, the superintendence of applications for the inclosure of lands and the carrying the same into operation is entrusted to the first commissioner of woods and forests, and two other commissioners, who are styled "The Inclosure Commissioners for England and Wales." Under the sanction of these commissioners inclosures may be more readily effected, and several local inclosures may be combined in one act. The appointments under the act were limited to five years next after the 8th August, 1845, and thenceforth until the end of the then next session of parliament. 35 & 36 Vict. c. 88, continues the inclosure commission to the 1st August, 1873. The act 8 & 9 Vict. c. 118, is amended by 9 & 10 Vict. c. 70, and extended by 10 & 11 Vict. c. 111; 11 & 12 Vict. c. 99; 12 & 13 Vict. c. 83; 14 & 15 Vict. c. 53; 15 & 16 Vict. c. 79; 17 & 18 Vict. c. 97; 20 & 21 Vict. c. 31; 22 & 23 Vict. c. 43; 29 & 30 Vict. c. 70; 31 & 32 Vict. c. 89. 29 & 30 Vict. c. 122, amended and extended by 32 & 33 Vict. c. 107, and 34 & 35 Vict. c. 93, provides for the improvement, protection and management of commons near the metropolis. Under the act 8 & 9 Vict. c. 118, gavelkind lands in Kent may be exchanged for lands in Middlesex held in common soccage. (Minet v. Leman, 7 De G., M. & G. 340; 1 Jur., N. S. 692; 24 L. J., Ch. 545.) Where, by an agreement between the lord of the manor and the copyholders, the waste lands are allotted and inclosed, the allotments taken by the copyholders are of freehold tenure. (Paine v. Ryder, 24 Beav. 151; Doe d. Lowes v. Davidson, 4 M. & Selw. 175.) Where, under an inclosure act, the waste lands of a manor are directed to be allotted in certain proportions, the freehold of such part of the lands as are not portioned out in the award remains in the lord of the manor. (Packe v. Mee, 9 W. R. 335.) See further, as to inclosure, Church v. Inclosure Commissioners for England and Wales (11 C. B., N. S. 664); Partridge v. Inclosure Commissioners, &c. (9 W. R. 336); Grubb v. Inclosure Commissioners, &c. (9 C. B., N. S. 612); Vernon v. Lord Manvers (11 W. R. 133); Cooke on Inclosures, 4th ed. Of Rights of The interest which a commoner has in the common is, in the legal phrase, Interest of the to eat the grass with the mouths of his cattle. He must not meddle at all commoner. with the soil, nor with its fruit and produce, even though it may eventually improve and meliorate the common. (1 Roll. Abr. 406, pl. 10; 12 H. 8, 2a; Sir Simon de Harcourt's case.) Therefore he cannot cut the grass, wood, bushes, fern, or other thing, growing on the common; nor can he cut the molehills, or make fishponds there. (12 H. 8, 2 a; per Brooke, J., 2 Leon. 202; Godb. 182, pl. 258; Anon. Bridg. 10; Samborn v. Harilo, 2 Bul. 116; Carrill v. Pack, 1 Sid. 251.) If the lord plant trees on the common, and the commoner thereby cannot have his common so beneficially as he ought, he cannot cut them down, for they are part of the soil itself, being the fruit and produce of the soil, but he must bring an action on the case. (6 Term Rep. 483; Sadgrove v. Kirby, 1 Bos. & Pull. Rep. 13.) So if the lord's rabbits on a common increase so much that there is not a sufficiency of common left, a commoner cannot fill up the coney-burrows, for it would be a meddling with the soil, and a judging for himself, but he must have recourse to his action against the lord. (Cooper v. Marshall, 1 Burr. 259; S.C., 2 Wils. 51; 1 Roll. Abr. 405, pl. 3.) Much less can a commoner kill the rabbits to prevent their increase, to the prejudice of the common. (Hodson v. Grissell, 1 Roll. Abr. 405, pl. 1, 2; Cro. Jac. 195; Yel. 104; S. C., cited 1 Lutw. 108; 2 Leon. 203; see 1 Wms. Saund. 353, n.) By the conveyance of the lands to which either common appendant or By what words a appurtenant is annexed, the right of common will pass. (Solme v. Bullock, right of common 3 Lev. 165; Sacheverell v. Porter, Cro. Car. 482; Drury v. Kent, Cro. Jac. will pass. 14.) Where common has been extinguished by union of ownership, and a grant is made of the land, to which, before the extinguishment, the right of common was attached, and the words "appertaining" and "belonging" only are used, the right will not pass, those words not being sufficient to revive the right, though those who have occupied the tenement since the extinguishment have always enjoyed the common. But if the words "or therewith used or enjoyed" are inserted, they would be sufficient to revive the right. (Clements v. Lambert, 1 Taunt. 205; Morris v. Eggington, 3 Taunt. 24; Barlow v. Rhodes, 1 Cr. & Mees. 448; Wardle v. Brocklebank, Ell. & Ell. 1058.) The effect of an enfranchisement of copyholds, being to extinguish all rights and privileges annexed to the copyholder's estate as such, if a copy holder has a right of common, and his copyhold is enfranchised, the common is gone, since the copyhold tenure has ceased: and the right of common will not pass by the word "appurtenances" in the deed of enfranchisement (Moore, 667; Cro. Jac. 253; 2 Ld. Raym. 1225; Salk. Of Rights of Extinguishment of common. Remedies for disturbance of right of common. Action at law. 170, 364); but must be made by express grant. (Moore, 667; Cro. Eliz. 570.) Where a copyhold tenement, to which a right of common was originally appendant, having vested in the lord by forfeiture, was granted by him as copyhold, with the appurtenances; it was held, that having always continued demisable while in the hands of the lord, it was a customary tenement, and as such was still entitled to a right of common. (Badger v. Ford, 3 B. & Ald. 153.) And a copyholder, who has common in a waste, without the manor of which his copyhold is parcel, has it as annexed to the land, and not to his customary estate, such common is not extinct by enfranchisement of the copyhold, though there be no words of regrant. And after enfranchisement, the feoffee must, previously to the stat. 2 & 3 Will. 4, c. 71, have prescribed 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 tenement. (Barwick v. Matthews, 5 Taunt. 365.) A right of common may be extinguished by a release, by unity of possession of the land, by severance, or by the enfranchisement of a copyhold. A right of common may be extinguished by a release of it to the owner of the soil; and if the commoner releases part of the common, it will operate as an extinguishment of the whole, because the right is entire throughout the whole land, therefore a release of part is a release of the whole. (Rotherham v. Green, Cro. Eliz. 593; 1 Show. 350.) Common appendant and appurtenant become extinguished by unity of possession of the land to which the right of common was annexed with the land in which the common was. But in order to extinguish a right of common by unity of possession, it is necessary that the party should have an estate equal in duration, quality, and other circumstances of right, in the tenements in respect of which the common is claimed, and in the premises over which the right was claimed. (Rex v. Inhabitants of Hermitage, Carth. 239; Bradshaw v. Eyr, Cro. Eliz. 570; 4 Rep. 38 a; see Lloyd v. Earl of Powis, 4 El. & Bl. 485.) Common appendant or appurtenant for cattle levant and couchant may also be extinguished by severance. As where a person, having common of this kind annexed to a messuage or tenement, conveys the messuage or tenement, excepting the common, the common is extinguished. (1 Roll. Abr. 401.) Where a right of commou is annexed to a copyhold, and the lord grants the land to the copyholder and his heirs, with the appurtenances, the common is extinguished, because it was annexed to the customary estate, which being converted into a freehold, the right of common is gone. (Marsham v. Hunter, Cro. Jac. 253; Gilb. Ten. 224.) Equity will, under certain circumstances, decree the continuance of common, where it would be extinct at law. (Styant v. Staker, 2 Vern. 250; Comb. 127.) In case of the enfranchisement of copyholds, under the statutes 4 & 5 Vict. c. 35, s. 81, and 15 & 16 Vict. c. 51, s. 45, it is provided that copyhold lands when enfranchised are to become freehold, subject to the payment of the consideration for the enfranchisement; but it is provided that nothing contained in those acts shall operate to deprive any tenant of any commonable right to which he may be entitled in respect of such lands, but such right shall continue attached thereto, notwithstanding the same shall become freehold. As to the extinguishment of a right of common appurtenant for cattle levant and couchant by alteration in the dominant tenement, see Carr v. Lambert (L. R., 1 Ex. 168, ante, p. 41). The usual remedy adopted by commoners for an injury to the right of common is an action on the case for a disturbance of the right of common, which may be maintained either against the lord or owner of the soil, (Hassard v. Cantrell, Lutw. 101,) or a stranger or a commoner. (1 Selw. N. P. 381, 13th edit.) In this action the plaintiff must prove an injury sustained; but the smallest injury is sufficient, as that of taking away the manure which was dropped on the common by the cattle. (Pindar v. Wadsworth, 2 East, 154. See cases cited in Marzetti v. Williams, 1 B. & Ad. 426; and Blofield v. Payne, 4 B. & Ad. 410.) In case for disturbance of a right of common, the declaration alleged that the mayor, aldermen and burgesses of the town and borough of Stamford had the right in question for every resident freeman paying scot and lot; it appeared in evidence that the right relied upon was an ancient right. By 2 & 3 Will. 4, c. 64, and 5 & 6 Will. 4, c. 76, part of an additional parish is thrown within the borough of Stamford: it was held, that the declaration was not supported, as the right claimed was larger than that proved. (Beadsworth v. Torkington, 1 G. & D. 482; 1 Q. B. 782.) In an action on the case for disturbance of common, when the defendant justifies under a right of common for his cattle levant and couchant, the plaintiff must new assign, if he intends to prove a surcharge. (Bowen v. Jenkins, 2 Nev. & P. 84; 6 Ad. & Ell. 911). If one of the commoners surcharges the common, that is, puts more cattle into the common than he is entitled to do, the commoner who is injured may maintain an action on the case against the other for a surchage, notwithstanding he has himself been guilty of a surcharge. (Hobson v. Todd, 4 T. R. 71.) In an action on the case for the surcharge of a common, the plaintiff may declare generally for the injury, without stating the defendant's right of common, and how he had exceeded that right. (Atkinson v. Teesdale, 2 W. Bl. 817; 3 Wils. 278. See Cheesman v. Hardham, 1 B. & Ald. 706.) In case for a surcharge of common, the plaintiff need not show that he was exercising his right of common at the time of the surcharge, but only that he could not enjoy his common so beneficially as he ought. (Wells v. Watling, 2 W. Bl. 1233.) As to the right of distress for a surcharge, see 1 Wms. Saund. 630, edit. 1871. An action of trespass will lie by one tenant in common against another, and also against his licensee, for making holes in the common, and for digging and taking turves away, when those acts are not done in the exercise of a right of common. And the plea, that the close was not the plaintiff's close, does not put in issue the exclusive possession of the plaintiff. But the plaintiff will recover such damages only as are proportionate to his interest. (Wilkinson v. Haygarth, 11 Jur. 104; 16 L. J., Q. B. 103.) An owner seised in fee of a close, upon which the burgesses of a borough had a right during a certain portion of the year to depasture their cattle, and having during that period exclusive possession of the close, may maintain an action of trespass against a party who, during that period, commits a trespass in the subsoil by digging holes; but not against one who, during that period, merely rides over the close. (Cox v. Glue, 5 C. B. 533.) The defendant in trespass pleaded, that for thirty years before suit he and all occupiers for the time being had enjoyed common of right and without interruption in, upon and throughout the close called P., and issue was joined on a traverse of this plea. The close P. was 3,000 acres in extent, and interruption by inclosure of ten acres had been acquiesced in for a year, and the trespass complained of was committed on these ten acres: it was held, that the defendant would only have proved his plea by proof of user on the place where the trespass was committed: the plaintiff was entitled to the verdict. (Davies v. Williams, 16 Q. B. 543.) As to pleading in an action of trespass against several claiming a right of common, see Church v. Wright, 15 C. B., N. S. 750. Before the stat. 3 & 4 Will. 4, c. 27, the commoner was barred of his right of entry and ejectment, by having acquiesced in the inclosure of part of a common for more than twenty years, and his remedy was by writ of assize of common. The lord was not conclusively barred of his remedy to recover common lands which had been inclosed until the lapse of sixty years, within which time he might recover the lands by a real action. (Edwards v. M'Leay, Cooper, C. C. 318; Hawke v. Bacon, 2 Taunt. 155; Creach v. Wilmot, Id. 159. See 2 Smith's L. C. 632, 5th ed.) Writs of assize have been abolished by 3 & 4 Will. 4, c. 27, s. 36, post. Of Rights of It is the policy of the law not to allow commoners to abate except in a Abatement. few cases. The abator is a judge in his own cause, which ought seldom to be permitted, whereas an action will best ascertain the just measure of the damages he has sustained. The cases where the law allows an abatement by a commoner, are where the acts of the lord are directly contrary to the nature of the common. For by the grant of it, the grantor gives every thing |