B. Div. 263), unless the intention to transfer the fishery appear in the conveyance (Tilbury v. Silva, 45 Ch. Div. 98). A several fishery, whether in tidal or non-tidal waters, may exist independently of riparian ownership, and that whether the owner of the fishery be the owner of the soil of the river (Neill v. Devonshire, 8 App. Cas. 153; Devonshire v. Puttinson, sup.; Smith v. Andrews, 1891, 2 Ch. 697; Hanbury v. Jenkins, 1901, 2 Ch. 401), or not (A.-G. v. Emerson, 1891, A. C. 654; Miller v. Little, 4 L. R. Ir. 302; Foster v. Wright, 4 C. P. D. 449). A perfect paper title to a several fishery may not be absolutely conclusive if there be evidence of user by others inconsistent therewith (Blount v. Layard, 1891, 2 Ch. 681, n.; Neill v. Devonshire, sup.; Smith v. Andrews, 1891, 2 Ch. 678). As to whether a right to a several fishery can be lost by abandonment, see Neill v. Devonshire, 8 App. Cas. 154, 170. A several fishery may be followed where the water gradually shifts its course (Foster v. Wright, 4 C. P. D. 438; see Miller v. Little, 4 L. R. Ir. 302; Hindson v. Ashby, 1896, 2 Ch. 1); but not where it leaves the old course and commences to follow a new course which was always distinguishable from the old (Carlisle v. Graham, L. R. 4 Ex. 361).

A claim to a fishery in gross is not within the Prescription Act (Shuttleworth v. Le Fleming, 19 C. B. N. S. 687; 34 L. J. C. P. 309).

Rights of

Common.

In addition to the above distinction between common of fishery and Distinction a several fishery, it is important to bear in mind the distinction between between (1) non-tidal waters (which include that part of a river in which the water fisheries in is not salt, and in ordinary tides is unaffected by tidal influence, Reece v. non-tidal, and Miller, 8 Q. B. D. 626); and (2) tidal waters. tidal, waters:

In the case of a non-tidal river the presumption is that each riparian non-tidal owner is entitled to a several fishery in the river in front of his land ad waters; medium filum (Blount v. Layard, 1891, 2 Ch. 689, n.). This is so even in the case of a navigable non-tidal river or king's stream" (Ib.); or of a river flowing through a manor (Lamb v. Newbiggin, 1 C. & K. 549). It seems, however, that the several fishery of a riparian owner may extend over the whole stream (Blount v. Layard, 1891, 2 Ch. 688). As to fishery in a lake, see Bristow v. Cormican, 3 App. Cas. 641; Marshall v. Ulleswater Co., 3 B. & S. 732; Johnson v. Bloomfield, I. R. 8 C. L. 68; Blackett v. Clayton, quoted 1897, 2 Ch. 564. As to whether the Crown can grant a right of fishing in a non-tidal river flowing over the soil of a subject, see Devonshire v. Pattinson, 20 Q. B. Div. 263. In non-tidal waters, an individual may acquire a title by prescription to a several fishery (Co. Litt. 122 a; Ventr. 391; see 2 Saund. 326; Peers v. Lacy, 4 Mod. 362), or to a fishing weir (Rolle v. Whyte, L. R. 3 Q. B. 286; Leconfield v. Lonsdale, L. R. 5 C. P. 657; see Barker v. Faulkner, 1898, W. N. 69; Hanbury v. Jenkins, 1901, 2 Ch. 401). The public cannot have a right to fish in non-tidal waters founded on custom, prescription, or lost grant (Smith v. Andrews, 1891, 2 Ch. 699, and cases there quoted; Blount v. Layard, Ib. 689, n.).

In tidal waters (whether sea or river), the right of fishing is primâ fucie tidal waters. in the public (Neill v. Devonshire, 8 App. Cas. 177; Malcolmson v. O'Dea, 10 H. L. C. 618). This public right extends to shell fish (as oysters), as well as to floating fish (Bagot v. Orr, 2 Bos. & P. 472; Saltash v. Goodman, 7 Q. B. Div. 116); and includes the right to deposit oysters on the foreshore (Truro v. Rowe, 1901, 2 K. B. 870). The right to create a several fishery in tidal waters existed in the Crown before Magna Charta, and a several fishery so created could lawfully afterwards be made the subject of a grant by the Crown to an individual (Malcolmson v. O'Dea, sup. ; see Neill v. Devonshire, 8 App. Cas. 135). And when the Crown acquired the right to such a fishery by merger since Magna Charta it could re-grant it (Northumberland v. Houghton, L. R. 5 Ex. 127). Long exclusive enjoyment alone may be ground for presuming the grant of such a fishery (Edgar v. Fishery Commissioners, 23 L. T. 732; Mannall v. Fisher, 5 C. B. N. S. 856; Little v. Wingfield, 8 Ir. C. L. R. 279; Beaman v. Kinsella, Ib. 291). So a several fishery in tidal waters has been presumed to have been granted to a corporation subject to a trust (in the nature of a charitable trust) in favour of inhabitants, authorizing them to dredge for oysters

within a certain period annually (Goodman v. Saltash, 7 App. Cas. 633). A several fishery was held to have been granted to a corporation in trust for the members thereof (Re Free Fishermen of Faversham, 36 Ch. Div. 329). There may be a several fishery for oysters, the right to take floating fish remaining in the public (Rogers v. Allen, 1 Camp. 29). An individual may claim a several fishery in an arm of the sea by prescription (Orford v. Richardson, 4 T. R. 437; see Ward v. Cresswell, Willes, 265; Crichton v. Collery, 19 W. R. 107). A grant of foreshore would not of itself convey the right to a several fishery over it (A.-G. v. Emerson, 1891, A. C. 654). The owner of a several fishery over foreshore, whether owner of the soil or not, can restrain the reclamation of part of the foreshore (Bridges v. Hinton, 11 L. T. 653).

"

As to the relation of the ownership of a fishery to the ownership of the soil of the bed, it is settled that the owner of a several fishery must be presumed to be the owner of the soil, whether the fishery is in tidal waters (A.-G. v. Emerson, 1891, A. C. 649); or in a non-tidal river (Holford v. Bailey, 13 Q. B. 426; Hanbury v. Jenkins, 1901, 2 Ch. 401; Palmer v. Thames Conservators, 1901, W. N. 228); or in a lake (Marshall v. Uileswater Co., 3 B. & S. 732). The ownership is a limited one, in support and for the purposes of the fishery (Hindson v. Ashby, 1896, 2 Ch. 19). The terms of the grant may rebut this presumption (Somerset v. Fogwell, 5 B. & C. 886; see Bloomfield v. Johnston, I. R. 8 C. L. 95, 106 ; A.-G. v. Emerson, 1891, A. C. 655). In the case of a grant of a free fishery," i. e., a nonexclusive right, the presumption is that the soil does not pass (Bloomfield v. Johnston, sup.). For the ordinary rules as to the ownership of the soil below water, see post, p. 89. And as to when the rights of lords of manors depend upon the ownership of the soil, see Grand Union Canal Co. v. Ashby, 6 H. & N. 394; Clarke v. Mercer, 1 F. & F. 492. Where the waste of a manor is bounded by a river, and there is evidence of the exercise of rights of common (e. g., fishing) over the bed, the bed ad medium filum forms part of the waste (Tilbury v. Silia, 45 Ch. D. 110); but it is not part of the waste, where the commoners' rights do not extend beyond the water's edge, and the bed is enjoyed as a separate tenement (Ecroyd v. Coulthard, 1898, 2 Ch. 368).

As to weirs, see Weld v. Hornby, 7 East, 195; Hanbury v. Jenkins, 1901, 2 Ch. 401; Barker v. Faulkner, 1898, W. N. 69.

As to the relief in equity in the case of common of fishery, see post,

p. 50.

Customs have been established for copyholders to take sand and gravel from the waste of the manor (Peppin v. Shakespear, 6 T. R. 748; Duberley v. Page, 2 T. R. 391; see Portland v. Hill, 2 Eq. 7C5), and loam for the repair of ancient tenements (Robertson v. Hartopp, 43 Ch. Div. 514). Compare the customs established for copyholders to take clay, &c. without limit from their copyhold tenements (Salisbury v. Gladstone, 9 H. L. C. 692; Hanmer v. Chance, 4 D. J. & S. 626).

As to taking materials for repairing highways from wastes or commons, see Highway Act, 1835, s. 51; Commons Act, 1876, s. 20; Rylatt v. Marfleet, 14 M. & W. 233; Hayes Conservators v. Bromley Council, 1897, 1 Q. B. 321.

Prima facie the lord of the manor is entitled to all waste lands within the manor; and it is not essential that the lord should show acts of ownership of such lands; and evidence that the public have been used to throw rubbish on waste lands is rather evidence that it belongs to the lord than to any private individual (Doe v. Williams, 7 C. & P. 332). A right to any part of the waste may, however, be established against the lord by repeated acts of ownership, as by cutting trees, digging turf, and the like (Tyrwhitt v. Wynne, 2 B. & Ald. 554; Barnes v. Mawson, 1 M. & S. 77; Richards v. Peake, 2 B. & C. 918)

The lord may take gravel and loam from the waste, provided he does

not infringe the commoners' rights (Hall v. Byron, 4 Ch. D. 667; sce Bateson v. Green, 5 T. R. 411; Folkard v. Hemmett, 5 T. R. 417; Hilton v. Granville, 5 Q. B. 730). The onus of showing that such rights are interfered with lies on the commoner (Hall v. Byron, 4 Ch. D. 680; Robertson v. Hartopp, 43 Ch. D. 501).

Rights of
Common.

The lord may, with the consent of the homage, grant part of the soil Grants by the for building, if he has immemorially exercised such right (Folkard v. lord. Hemmelt, 5 T. R. 417). In like manner there may be a valid custom 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 (Boulcott v. Winmill, 2 Camp. 261; see Northwich v. Stanway, 3 Bos. & P. 346; Lascelles v. Onslow, 2 Q. B. D. 433), even where a sufficiency of common is not left (Ramsey v. Cruddas, 1893, 1 Q. B. 228). The consent of the majority of the homage is sufficient (Ib.). But without a custom for the purpose, the lord cannot make a new grant of copyhold (R. v. Hornchurch, 2 B. & Ald. 189; R. v. Wilby, 2 M. & S. 504). The consent of the Board of Agriculture is necessary for a new grant of copyhold (Copyhold Act, 1894, s. 81), and also the consent of the homage when such is the custom (sect. 83). A custom for the lord to grant leases of the waste of the manor without restriction is bad in point of law (Badger v. Ford, 3 B. & Ald. 153). A custom to inclose (even as against a common right of turbary), leaving sufficiency of common, is good; but the onus of proving that a sufficiency is left lies on the lord (Arlett v. Ellis, 7 B. & C. 346; see Rogers v. Wynne, 7 D. & R. 521; Betts v. Thompson, 6 Ch. 732; Robertson v. Hartopp, 43 Ch. D. 501). It seems that the lord may license training of horses on the waste so long as it does not injure the right of pasture (Coote v. Ford, 83 L. T. 483).

An encroachment by a copyholder on the waste becomes, at any rate Presumption where the lord may by custom grant the waste as copyhold, an accretion as to ento the holding, and a copyhold title is acquired (so held by Fry, J., in croachments A.-G. v. Tomline, 5 Ch. D. 750; see, however, S. C. before the C. A., on the waste. 15 Ch. Div. 150). In the case of landlord and tenant generally, encroachments made by a tenant are for the benefit of the landlord, unless it appears clearly, by some act done at the time of the making of the encroachments, that the tenant intended the encroachments for his own benefit, and not to hold them as he held the farm to which the encroachments were adjacent (Doe v. Rees, 6 C. & P. 610). This doctrine originated in those cases where the landlord was lord of the manor, and the tenant encroached upon the waste (Andrews v. Hailes, 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 v. Tidbury, 14 C. B. 324; see A.-G. v. Tomline, 15 Ch. Div. 155). It is not necessary that the land encroached upon should be contiguous to the tenant's holding ( Lisburne v. Davies, L. R. 1 C. P. 259; see Whitmore v. Humphries, L. R. 7 C. P. 1).

By the Statute of Merton (20 Hen. 3, c. 4), and by subsequent statutes Right to (29 Geo. 2, c. 36, and 31 Geo. 2, c. 41), the lord of a manor may inclose so approve. 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. But the consent of the Board of Agriculture is now necessary (56 & 57 Viet. c. 57). This inclosure, when justifiable, is called in law " approving,' an ancient expression signifying the same as "improving" (2 Bl. Com. 34). The statutory right to approve applies as against common appurtenant of pasture (Robinson v. Duleep Singh, 11 Ch. D. 798); but there can be no approvement against tenants of a manor who have a right to dig gravel on the waste, and to take estovers (Duberley v. Page, 2 T. R. 391; Grant v. Gunner, 1 Taunt. 435; Shakespear v. Peppin, 6 T. R. 741). The statute

Rights of
Common.

(8) Inclosure acts.

Inclosure commissioners.

does not authorize the lord to approve as against common of turbary or estovers; but such a right may exist by custom (Lascelles v. Onslow, 2 Q. B. D. 451; Clarkson v. Woodhouse, 5 T. R. 412, n.; Bateson v. Green, 5 T. R. 411; Place v. Jackson, 4 D. & R. 318; 2 Atk. 189). There can be no inclosure under 29 Geo. 2, c. 36, as against persons entitled to the underwood on the waste (Nicholls v. Mitford, 20 Ch. D. 380). 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 (Duberley v. Page, 2 T. R. 392, n.).

An owner pur autre vie of a common may approve under the statute (Patrick v. Stubbs, 9 M. & W. 830). 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),

Where a lord approves, there lies upon him (apart from a custom to a different effect, Ramsey v. Cruddas, 1893, 1 Q. B. 228) the onus of showing that sufficient waste is left for the commoners (Betts v. Thompson, 6 Ch. 732). The question of sufficiency depends, not on the average number of sheep commoners have in fact turned out, but on the number they are entitled to turn out (Robertson v. Hartopp, 43 Ch. Div. 484, see p. 518, where the C. A. treat as doubtful the decisions in Lake v. Plaxton, 10 Exch. 196; and Lascelles v. Onslow, 2 Q. B. D. 433).

A lord cannot under 51 Geo. 3, c. 115, grant waste for a burial ground, discharged from a customary right of recreation (Forbes v. Eccl. Commrs., 15 Eq. 5).

The greater part of the commons in England have been inclosed under local acts of parliament. The Inclosure (Consolidation) Act, 1801, 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 the Inclosure Act, 1845, the superintendence of applications for the inclosure of lands and the carrying the same into operation was entrusted to the first commissioner of woods and forests, and two other commissioners, who were styled "The Inclosure Commissioners for England and Wales." The powers and duties of these commissioners are now vested in the Board of Agriculture (52 & 53 Vict. c. 30). The act of 1845 has been amended by many recent acts, and these acts are now collectively known as the Inclosure Acts, 1845 to 1882 (Short Titles Act, 1896). The rules for construing inclosure acts as regards the right to support when the ownership of minerals and surface is severed are given in Bell v. Dudley, 1895, 1 Ch. 182; see Consett Co. v. Ritson, 43 W. R. 122.

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). The legal estate in land allotted under an inclosure act passed to the allottee (Simcoe v. Pethick, 1898, 2 Q. B. 555; see A.-G. v. Meyrick, 1893, A. C. 1). See further, as to inclosure, Cooke on Inclosures, 4th ed.

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 v. Davidson, 4 M. & S. 175),

29 & 30 Vict. c. 122, amended and extended by 32 & 33 Vict. c. 107, provides for the improvement, protection and management of commons near the metropolis.

Under the Inclosure Act, 1845, gavelkind lands in Kent may be exchanged for lands in Middlesex held in common socage (Minet v. Leman, 7 D. M. & G. 340).

The interest which a commoner has in the common is, in the legal phrase, to eat the grass with the mouths of his cattle. He must not meddle at all 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; 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). There may be a custom for the commoners to take rabbits on the waste (Coote v. Ford, 83 L. T. 482).

Rights of
Common.

(9) Interest of the commoner.

(10) By the conveyance of the lands to which either common appendant or By what appurtenant is annexed, the right of common will pass (Solme v. Bullock, words a right 3 Lev. 165; Sacheverell v. Porter, Cro. Car. 482; Drury v. Kent, Cro. Jac. of common 14). Where common has been extinguished by union of ownership, and will pass. 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. 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 C. & M. 448; Wardle v. Brocklehurst, Ell. & Ell. 1058; Baring v. Abingdon, 1892, 2 Ch. 374). Now, by Conv. Act, 1881, s. 6, a conveyance of land includes all commons appertaining or reputed to appertain to the land or any part thereof, or at the time of the conveyance demised, occupied, or enjoyed with, or reputed or known as, part or parcel of or appurtenant to the land. The effect of an enfranchisement of copyholds being to extinguish all rights and privileges annexed to the copyholder's estate as such, 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. 170, 364); but must be made by express grant (Moore, 667; Cro. Eliz. 570; see Doidge v. Carpenter, 6 M. & S. 49). General words in a conveyance by the lord were held not to re-create rights of common (Hall v. Byron, 4 Ch. D. 667). And where a lord granted demesne lands together with all commons, &c., the words did not create a right of common (Baring v. Abingdon, 1892, 2 Ch. 374). On the other hand, 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 it was 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, does not lose it by enfranchisement of the copyhold (Barwick v. Matthews, 5 Taunt. 365).

Where upon an inclosure an allotment was awarded in lieu of commonable rights annexed to land (which were thereupon extinguished), a subsequent lease of the land with general words did not carry the allotment (Williams v. Phillips, 8 Q. B. Div. 437).

(11)

A right of common may be extinguished by a release, by unity of Extinguishpossession of the land, by severance, or by the enfranchisement of a ment of copyhold. If the commoner releases part of the common, it will operate common. 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; Johnson v. Barnes, L. R. 8 C. P. 527). Common appendant and appurtenant become extin