power to levy tolls, but not deriving any personal | act of the commissioners, their agents, workmen benefit, are liable in their corporate capacity for or servants, the damage or injury shall be ascerdamage sustained by reason of the defaults of their servants or agents to the same extent as absolute owners levying tolls for their own individual profit, although there is no improper conduct on the part of such trustees. Mersey Docks and Harbour Board v. Gibbs, 1 L. R., H. L. 93; 35 L. J., Ex. 225; 12 Jur., N. S. 571 -H. L. Harbour Commissioners Neglect in Maintenance. In an action against the commissioners of Kingstown Harbour, appointed by the lord lieutenant under 56 Geo. 3, c. 62, the plaint-after stating that it was their duty, as such commissioners, to apply dues, &c., received by them from vessels entering the harbour, in its maintenance and regulation, so as to be in a fit state for vessels to lie in-alleged that they neglected their duty, and omitted to take due and reasonable care in maintaining and regulating the harbour, insomuch that a vessel of the plaintiff, while lying in the harbour, struck against stones remaining there, through the negligence of the commissioners; and, in a second count, alleged that they, knowing that the harbour was, by accumulation of stones, in an unfit state to be used by vessels, allowed it, for want of necessary and reasonable maintenance and regulation, to remain in that condition while it was, with their knowledge and permission, lain in by vessels; insomuch that the vessel in question, while lying in harbour, struck against stones. It was proved that the vessel struck against two stones lying at the bottom of the harbour, close to one of the piers; that one of the stones was chiselled, and appeared to have been used in the construction of the pier; and that there was a gap in the face of the pier immediately above the stones:-Held, that the principle of liability of negligence, established in the case of The Mersey Docks Trustees v. Gibbs (1 L. R., H. L. 93), was applicable, and that the plaint disclosed a good cause of action. Campbell v. Hornsby, 7 Ir. R., C. L. 540-Ex. Ch. Bursting of a Sluice.]—The Middle Level Drainage Commissioners were empowered and directed by statute to make a cut, and make and maintain at or near its opening a sluice to exclude the tidal waters. They were trustees for a public purpose, and acting without reward. The sluice was properly made, but owing to the absence of due care and skill in the persons employed by them to maintain it, the sluice burst, whereby the tidal waters came in and flooded the neighbouring lands. There was no proof that the commissioners had negligently or improperly employed unskilful or incompetent agents:-Held, that the commissioners were liable to an action at the suit of the owners of the neighbouring lands. Coe v. Wise, 1 L. R., Q. B. 711; 37 L. J., Q. B. 262; 14 L. T. 891; 14 W. R. 865; 7 B. & S. 831 -Ex. Ch., reversing the judgment of the Queen's Bench, 5 B. & S. 440; 33 L. J., Q. B. 281; 10 Jur., N. S. 1019; 10 L. T. 666; 12 W. R. 1036. Claim for Compensation.]—By a section of the statute, if any person, after the commissioners or any person employed or authorized by them shall have begun to carry the statute into execution, shall sustain damage or injury in his lands or chattels by or in consequence of any | tained by a jury before the sheriff :-Held, that the section applied only to damages resulting from acts authorized by the statute; but, assuming it to extend to unauthorized acts, on a review of the statute, and inasmuch as the cause of action was for an omission or nonfeasance, it was not the subject of compensation within the section. Ib. By a drainage act, the commissioners were to construct a cut, with proper walls, gates and sluices, to keep out the waters of a tidal river, and also a culvert under the cut to carry off the drainage from the lands on the east to the west of the cut, and to keep the same at all times open. In consequence of the negligent construction of the gates and sluices, the waters of the river flowed into the cut, and, bursting its western bank, flooded the adjoining lands. The plaintiff and other owners of lands on the east side of the cut closed the lower end of the culvert, which prevented the waters overflowing their lands to any considerable extent; but the occupiers of the lands on the west side, believing that the stoppage of the culvert would be injurious to their lands, reopened it, and so let the waters through on to the plaintiff's land to a much greater extent :-Held, that the commissioners were responsible for the entire damage thus caused to the land. Collins v. Middle Level Commissioners, 4 L. R., C. P. 279; 38 L. J., C. P. 236; 20 L. T. 442. Necessity of Personal Negligence.]-In order to render commissioners, acting in the bona fide performance of a public duty, liable to an action for an injury to an individual resulting from an act so done by them, it must appear that they have been guilty of negligence, or want of skill in the conduct of it. Grocers' Company v. Donne, 3 Scott, 356; 3 Bing., N. C. 34; 2 Hodges, 120. Persons intrusted with the performance of a public duty, discharging it gratuitously, and being personally guilty of no negligence or default, are not responsible for an injury sustained by an individual through the negligence of workmen employed under them. Holliday v. St. Leonard's, Shoreditch, 11 C. B., N. S. 192; 8 Jur., N. S. 79; 4 L. T. 406. Trustees of a Highway-Overflow of Water.]-Trustees of a turnpike road converted an open ditch, which used to carry off the water from the road, into a covered drain, placing catchpits, with gratings thereon, to enable the water to enter the drain. Owing to the insufficiency of such gratings and catchpits, the water, in very wet seasons, instead of running down the ditch, as formerly before the alterations by the trustees, overflowed the road, and made its way into the adjoining land, and injured a colliery :Held, that the trustees were liable for such injury, if they were guilty of negligence in respect of such gratings and catchpits. Whitehouse v. Fellowes, 10 C. B., N. S. 765; 30 L. J., C. P. 306; 4 L. T. 177; 9 W. R. 557. Right to Compensation no Bar.]-If, in the execution of works authorised by an act of parliament, damage is sustained, and the act provides a special mode in which compensation for such damage may be recovered, no action will lie for it. But this only relates to works carefully and skilfully executed, and if there is a want of proper care and skill on the part of those executing the works, an action for the negligence to recover damages for the injury thereby sustained will lie. Clothier v. Webster, 12 C. B., N. S. 790; 31 L. J., C. P. 216; 10 W. R. 624. Distinction between Private Companies.]The principle which imposes liabilities upon a private company, as arising in consideration of the statutable powers granted to them, has no application in the case of commissioners appointed under a public act of parliament, to do, on behalf of the executive government, certain things for the benefit of the public. Reg. v. Woods and Forests (Commissioners), 19 L. J., Q. B. 497; 15 Jur. 35. See also NEGLIGENCE. IV. ACTION BY AND AGAINST CLERKS OF COMMISSIONERS. Personal Charges.]-The clerk to commissioners of paving drew up a contract for paving, of which contract the contractor was, by agreement, to pay the expense; he offered to execute the contract, but refused to pay the clerk's charges, as unreasonable; the clerk refused to allow the contract to be executed until his charges were paid. Under an act authorizing the commissioners to sue by their clerk :-Held, that he could not sue as such clerk for these charges. Curling v. Johnson, 10 Bing, 89; 3 M. & Scott, 496. Liability for Negligence of Workmen.]Clerks to commissioners, under a lighting and paving act, intrusted with the conduct of public works, are not liable for an injury occasioned by the negligence of artificers and labourers employed under their authority. Hall v. Smith, 9 Moore, 226; 2 Bing. 156. Clerk at a Fixed Salary.]-A clerk to commissioners under a local act, who is paid by a fixed salary, is not within 6 & 7 Vict. c. 73, so as to require the delivery of a signed bill of costs, although he is an attorney, and his services consisted of work which, before his appointment at a fixed salary, he did as an attorney. Bush v. Martin, 2 H. & C. 311 ; 33 L. J., Ex. 17; 10 Jur., N. S. 347. COMMITMENT FOR CONTEMPT. See CONTEMPT OF COURT. COMMITTEE OF LUNATIC. See LUNATIC. VOL. II. 1. WHAT ARE LAWFUL. Rights of Recreation.]-A right of recreation over the common and waste lands of a manor cannot belong to the freehold tenants of the manor. Betts v. Thompson, 23 L. T. 427; 18 W. R. 1099. Affirmed, 6 L. R., Ch. 732 ; 25 L. T. 363; 19 W. R. 1098. By 51 Geo. 3, c. 115, s. 2, lords of the manor were empowered to grant to the rector or vicar of any parish waste land not exceeding five acres, for ecclesiastical purposes, “freed and absolutely discharged of and from all rights of common thereon, and any statute prohibiting any alienation in mortmain, or other statute, law or custom to the contrary notwithstanding:"-Held, that these words did not empower the grant of part of a village green, which the inhabitants had been from time immemorial accustomed to use for their amusement and recreation. Forbes v. Ecclesiastical Commissioners for England, 15 L. R., Eq. 51; 42 L. J., Ch. 97; 27 L. T. 511; 21 W. R. 169. Sufficiency of Pasture.]-The owners of two closes immediately abutting upon a common, over which the freeholders of the manor had the right of depasturing their sheep, and the inhabitants of the neighbourhood had the right of pulic recreation, caused damage to the freeholders of the manor by the lawful user of their premises in diminishing the turf of the common, which was already insufficient for the depasturing of the proper number of sheep :-Held, in an action for damages by the freeholders, who were commoners, that the freeholders had no cause of action against the owners of the adjoining closes for the damage consequent upon the user of their premises, though resulting in the diminution of their rights of common. George v. Lysaght, 49 L. T. 49; 47 J. P. 696. Rights of Pasture Appurtenant-Cattle levant and couchant.]-A copyholder cannot lawfully claim common appurtenant without stint in respect of his copyhold tenement, but such common must be limited to the cattle levant and couchant on the tenement to which it is annexed, or the number must be ascertained by the court rolls or in some other manner. Morley v. Clifford, 20 Ch. D. 753; 51 L. J., Ch. 687; 46 L. T. 561; 30 W. R. 606. A right of common for cattle levant and couchant, upon enclosed 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 M. & Rob. 205. To a declaration quare clausum fregit, the defendant pleaded an enjoyment as of right for thirty years, of common of pasture over the locus in quo for his cattle levant and couchant upon his toftstead as appurtenant thereto :-Held, that the expression cattle levant and couchant meant such a number of cattle as the toftstead could maintain by its produce beyond the amount of food obtained by them from the common, and that it was not necessary that they should have been actually fed, either wholly or in part, from the produce of the toftstead. Carr v. Lambert, 3 H. & C. 499; 34 L. J., Ex. 66; 11 Jur., N. S. 163; 11 L. T. 739; 13 W. R. 499. Affirmed on appeal: 4 H. & C. 257; 35 L. J., Ex. 121; 12 Jur., N. S. 194-Ex. Ch. There is no difference in this respect between a plea founded on the 2 & 3 Will. 4, c. 71, and a plea grounded on prescription properly so called. ́Ib. Sheep.]-Where a declaration set out a right of common for all commonable cattle, and it was proved that the plaintiff turned out all the commonable cattle he had, but that he had no sheep:-Held, not a variance. Manifold v. Pennington, 6 D. & R. 291; 4 B. & C. 461. Sheep "taken on tack."]—Where a party is possessed, as appurtenant to a messuage, of the sole right of pasturage for sheep on a common, he has no right to feed there the sheep of others "taken on tack;" therefore, on an issue as to such a right of pasturage in the plaintiff, evidence of his having depastured there, unmolested, the sheep of others "taken on tack." though admissible, is not evidence of the right, as it tends to shew a usurpation only. Jones v. Richards, 2 N. & P. 747; 6 A. & E. 530; W., W. & D. 276. Appurtenant to what.]-Common for cattle levant and couchant cannot be claimed by prescription, as appurtenant to a house without any curtilage or land. Scholes v. Hargreave, 5 T. R. 46. Quære, if common appurtenant to a messuage without land may exist. Bunn v. Channen, 5 Taunt. 244. Semble, common appurtenant may be converted to common in gross by demising it. Ib. - In gross.]—A claim of exclusive right of common for cattle, sheep and other commonable animals, levant and couchant, is not conclusive that the right claimed is in its nature appurtenant, but such right may have had its origin in a grant in gross. Johnson v. Barnes, 7 L. R., C. P. 592; 41 L. J., C. P. 250; 27 L. T. 152. Affirmed, 8 L. R., C. P. 527; 42 L. J., C. P. 259; 29 L. T. 65—Ex. Ch. If such right is shewn to have existed in gross without question for a long period of time, it ought to be sustained. Ib. The recognition and repetition of releases from the sixteenth century downwards without question, is evidence that the right admitted of severance by its original grant. Ib. Therefore, where a municipal corporation claiming an exclusive right of common for cattle, levant and couchant, in lands lying scattered round the town, had in the reign of Henry 8 and thenceforward exercised the right of releasing such right of common over part of the lands subject thereto, and had continued to exercise their rights over the rest as before, whilst the grantees of such released rights had exercised the right of common instead of the corporation, in an action by the tenant of a part of the lands subject to the claim of right of common, against a person claiming under grant of the right from the corporation for exercising such right:-Held, that the evidence established a right of common in gross, with power of severance, and to grant or release any part, and that the grantee of such a right was justified in entering upon the land in question in the exercise thereof. Ib. When an exclusive right of pasturage had been enjoyed for a long series of years, but was described in various documents as a right of common, the court held, as a conclusion of fact, that such description did not cut down the exclusive right so established by user. Ib. Restriction.]-An ancient deed of feoffment granting the wastes of a manor to feoffees in trust to permit the tenants and inhabitants to use and enjoy the same, as they had formerly done, or been accustomed to do, must be taken to mean such a right of common as may by law exist, namely, a right of common restricted by levancy and couchancy. Benson v. Chester, 8 T. R. 396. Lands.]-In order to make a right of pasture Relationship between Common and other over common or lammas lands appurtenant to particular lands there must be some relation between the enjoyment of the right and the enjoy ment of the particular lands; that is, there must be some connexion between the beasts used on those particular lands and the number or description of beasts that may be depastured where the right claimed is for the beasts which on the common or lammas lands; as for instance, plough the particular lands; or for every beast used on such lands not exceeding a certain number. Baylis v. Tyssen-Amhurst, 6 Ch. D. 500; 46 L. J., Ch. 718; 37 L. T. 493. In an action claiming rights of pasturage, or rights of a like nature, it is the duty of the court, as far as possible, to attribute a legal origin to such rights, where there is evidence of long-continued user, but that duty can only be discharged at the trial. Ib. Grant of Right.]-A several right of pasture is sole and exclusive, and there cannot | for his cattle, levant or couchant, within the be more than one granted at different times over the same land. Robinson v. Duleep Singh, 11 Ch. D. 798; 39 L. T. 313; 48 L. J., Ch. 758; 27 W. R. 21-C. A. In an action for disturbance of common of pasture, the plaintiff declared, in respect of a messuage and lands, for common for all his cattle levant and couchant :-Held, that a lease to the plaintiff's testator, for years, determinable on lives, of a farm, together with reasonable common of pasture, was sufficient to sustain the right of common alleged in the declaration, and that this right was not destroyed by a subsequent conveyance to the plaintiff in fee of the farm and common of pasture thereto belonging and appertaining; for this operated as a new grant of the common. Doidge v. Carpenter, 6 M. & S. 46. And see Ballard v. Dyson, 1 Taunt. 279. borough, wherefore he placed his cattle there. Replication, that he ought not to have common of pasture for his cattle, levant or couchant, within the borough:-Held, that the replication only put in issue the fact of the defendant having such right of common as was stated in the plea, and therefore the plaintiff could not give evidence that the right of common was extinguished under the 8 & 9 Vict. c. 118, but he ought to have shewn in what way the grant ceased to operate by replying the facts specially. Parry v. Thomas, 5 Ex. 37 ; 19 L. J., Ex. 198. Held, also, that the plea was bad, inasmuch as it alleged a grant to the corporation in their corporate capacity, and not for the benefit of the individual burgesses. Ib. An ancient grant of a right of common of pasture to a corporation, for the benefit of the resident freemen paying scot and lot, does not Folding.]-A prescription for common of enure to the freemen resident within a new pasture, for a certain number of sheep, on A., every | parish added to the borough by 2 & 3 Will. 4, c. year, at all times of the year, is well laid, though | 61, and 5 & 6 Will. 4, c. 76.~~~ Beadsworth v. Torkthe evidence which proves the right of common ington, 1 G. & D. 482; 1 Q. B. 782; 6 Jur. 339. proves also that the tenant of a certain farm has a right to have the sheep folded at night on his farm, after they have fed on the common during the day. Brook v. Willett, 2 H. Bl. 224. Sufficiency of Pasture.]-The allegation of a right of common for all the plaintiff's cattle, levant and couchant, is supported, although, according to the evidence, the common is not sufficient to feed all the cattle for any length of time. Willis v. Ward, 2 Chit. 297. Fractional Right.]-To an action for disturbance of a right of common by putting cows on the common field, the defendant pleaded that he was possessed of land, the occupiers whereof had, for thirty years before action, enjoyed common of pasture in the field for "one cow and three-fourth parts of a right of common of pasture for another cow ;" and that he was possessed of other land, the occupiers whereof had for thirty years enjoyed "one-fourth part of a right of common of pasture for one cow;" that the defendant, in respect of his right of common of pasture for one cow and three-fourth parts of the right of common of pasture for another cow in his own right, and in respect of one-fourth part of the right of common of pasture for one cow, as the servant of A., put two cows, and no more, on the common :-Held, that whether or not there could be a right to common of pasture for a fraction of one animal, the plea was bad, as the allegation of a right to three-fourths of a right was unintelligible. Nicholls v. Chapman, 5 H. & N. 643; 29 L. J., Ex. 461; 8 W. R. 664. Corporation.]-To trespass, the defendant pleaded that the locus in quo was in an ancient borough, and that the burgesses thereof were a body corporate by the name of the burgesses of a town; that the Earl of A., being seised in fee of certain land, whereof the locus in quo was part, by charter granted to the burgesses of the town, their English heirs and successors, and their tenants, common of pasture in the land for all their cattle within the town, levant and couchant. The plea stated that the defendant was a burgess, and an English successor of the burgesses of the town, to whom the grant was made, and as such ought to have common of pasture Prescription-Onus of Proof. ]—A plaintiff prescribed under 2 & 3 Will. 4, c. 71, for a right of pasture thirty years next before the commencement of the action; and for a right of simply turning on cattle for twenty years. Evidence was given of acts of depasturing at a period commencing more than thirty years before the commencement of the suit; but that more than twenty-eight years before the suit (in 1809), a rail was erected, so as to interrupt the enjoyment of pasture, and that afterwards the rail having been removed, the plaintiff depastured for twenty-eight years:-Held, that the defendant was not bound to prove that the rail was erected adversely to the plaintiff's right; but that the onus lay on the plaintiff to prove affirmatively his actual enjoyment of pasture for thirty years; and that no presumption could be admitted in his favour, on proof of enjoyment for a less period. Bailey v. Appleyard, 3 N. & P. 257; 8 A. & E. 161; 1 W., W. & H. 208; 2 Jur. 872. "Pasturage and Herbage"-Litter.]-Previous to the disafforestation and grant of A. Forest in 1677, the crown was absolute owner of the soil of the forest, and possessed of all the rights belonging to such ownership including vert and venison. The tenants of the adjoining manors had customary rights of common of pasture, herbage, and pannage, but the court rolls and other documents contained no evidence of any customary right in the commoners to cut and carry away from the forest brakes, fern, and litter, except by permission of the forest officers, and afforded negative evidence that no such right was ever claimed or lawfully exercised. In a suit instituted in 1691, for the purpose of determining how much of the forest might properly be inclosed, having regard to the rights of common, the commoners by their answers claimed rights of pasturage, and pannage for swine, and, as to such of them as had houses, certain quantities of fuel wood for their houses, but made no claim in respect of any other estovers. By the decree made in 1693, after allotting to the owners for inclosure and improvement portions of the forest within which the commoners were to be excluded and debarred from any common of pasturage, herbage, or pan that the plaintiff, at the time when, &c., put in his cattle, "the same time being when the same field was and ought to be open and common as aforesaid: "-Held, that the plea was bad for uncertainty, even after verdict, the right of common being too generally described, both in its commencement and conclusion. Da Costa v. Clarke, 2 B. & P. 257. See also APPROVEMENT, infra. nage, the residue of the forest (containing 6,400 | the corn was cut and carried, and thence for a acres) was allotted to remain open and unin- long time, to wit, for three weeks and upwards;" closed, and the said defendants, their heirs, tenants, and assigns, and all other persons having right of common in the said forest according to their respective interests therein, shall from time to time have and take the sole common pasture and herbage of all and every the land allotted and left for common as aforesaid "-the owners, their heirs, and assigns, tenants, and farmers, being for ever excluded from having or claiming any common of pasture or herbage upon or in the said lands so left for common as aforesaid." In an action brought by the owner of the inheritance in 1878 to restrain one of the commoners from cutting and carrying away brakes, fern, and litter from the 6,400 acres, for use upon the copyhold tenement in respect of which he had his right of common, the defendant claimed this right as one of the commoners entitled to the benefit of the decree of 1693, and also alternatively by prescription in respect of his particular tenement :-Held, by Bacon, V.-C., and by the Court of Appeal, 1. That upon the construction of the decree of 1693, by which the respective rights of the lord and the commoners were defined and determined, the right of the commoners over the 6,400 acres was limited to common of pasturage and herbage, and did not include the right to cut and carry away the brakes, fern, heather, and litter growing therein. 2. That the existence at the date of that decree of any special custom authorizing the commoners to cut and carry away brakes, &c., and litter, in that which had been a royal forest, had not been established, and was negatived by the absence of any claim to such a custom by the commoners in the suit in which that decree was made. 3. That evidence of usage subsequent to the date of the decree of 1693 could not affect the construction of that decree, which in its terms was clear and unambiguous. De la Warr (Earl) v. Miles, 17 Ch. D. 535; 50 L. J., Ch. 754; 44 L. T. 487; 29 W. R. 809-C. A. Held, by Bacon, V.-C., that the alternative claim to the alleged right by prescription in respect of the particular tenement being a claim of a profit à prendre in alieno solo could not be sustained. But held, on appeal, that as the defendant and his predecessors in title were shewn to have claimed to take, and to have actually taken, as of right and without any permission from the lord, litter from the 6,400 acres for the use of the tenement for upwards of sixty years immediately before the action, they had, under the Prescription Act (2 & 3 Will. 4, c. 71), acquired a right to do so, although they had claimed to do the acts complained of under the mistaken supposition that all the commoners were entitled to do them. Ib. In order to establish a right under the Prescription Act, it is only necessary to shew that the benefit claimed has been actually enjoyed by the claimant for the requisite period as of right and not by permission, and that the right claimed is one which could have a legal origin by custom, prescription, or grant, and it is immaterial on what ground the claimant rested his alleged right to enjoy it. Ib. Uncertainty.]-A plaintiff pleaded to an avowry for damage feasant, that the locus in quo, immemorially, ought to be open and common, "on or before the 15th of October, when Common of Vicinage-Adjoining Farms.]Common pur cause de vicinage cannot be claimed as matter of customary right by the owner of a farm against the owner of the adjoining farm, though there is no fence or inclosure between them. Such a right could only have its origin in a grant, or in manorial custom. Jones v. Robin, 10 Q. B. 581; 15 L. J., Q. B. 15; 9 Jur. 1007. Affirmed, 10 Q. B. 620; 17 L. J., Q. B. 122; 12 Jur. 308-Ex. Ch. Proprietors.]-Semble, that common pur cause de vicinage may exist between two neighbouring proprietors, though there be no other right of common over the lands on either side from which the cattle escape. Ib. Districts.]-To establish a common pur cause de vicinage, an intercommoning between the two districts must be alleged and proved. Clarke v. Tucker, 10 Q. B. 604; 15 L. J., Q. B. 191; 10 Jur. 263. It is not enough to shew that there was no fence between the two districts, and that cattle strayed from one to the other, but were contive owners, or turned off by the owners of the stantly either driven back by their own respecland into which they had strayed. Ib. Where there is a common pur cause de vicinage between two wastes, and one of them is under a private act conveyed to allottees for the purpose of being inclosed, and the commissioners under the act extinguish all rights of common on such one waste, these proceedings do not of themselves put an end to the common pur cause de vicinage. Ib. In what Manor.]—In common because of vicinage the cattle must always be turned out in the commoner's own manor; therefore, if a right is proved to turn out in another manor, it proves a right of common direct, and not merely because of vicinage. Sewers (Commissioners of) V. Glasse, 19 L. R., Eq. 134; 44 L. J., Ch. 129; 31 L. T. 495; 23 W. R. 102. State of Boundaries.]-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 is no fence or visible boundary separating the downs. Heath v. Elliott, 4 Bing. N. C. 388; 6 Scott, 172; 1 Arn. 170. Where one of two adjoining commons, with common of vicinage, was enclosed and fenced off by the owner of the soil, leaving open only a passage sufficient for the highway which led over the one to the other; yet, as the separation was not complete, so as to prevent cattle straying |