all the others, which may be viewed as a reciprocal right of pasture appurtenant to each of the undivided tenements. 2. Common of estovers, or rights of taking wood from the waste for use upon the copyhold tenement, similar to the right of estovers possessed by the tenant over the wood growing on his copyhold land, which has already been described (). This kind of common, as well as those which are next to be mentioned, may be limited either by the requirements of the tenant, or by some fixed limit of quantity, according to the usage. 3. Rights of taking underwood and such products as furze, fern, thorns, hay, and rushes, which resemble the common of estovers, and are sometimes included in its definition (1). 4. Common of turbary, being the right to take turf or peat fit for fuel, to be used for burning in the copyholder's house (m). In some manors there is a customary right of taking coals for fuel, which is similar in its incidents to the common of turbary (n). 5. Rights of taking minerals from the waste for use upon the copyhold land, as stone, sand, clay, and ores of various kinds (o). 6. Common of piscary, being the right of taking fish for food from the streams and ponds belonging to the lord (p). By particular customs the copyholders may also have other rights similar in their nature to those which have been described. "These several species of common," it has been re (k) Ante, p. 231. (1) Smith v. Brownlow (Earl), L. R. 9 Eq. 241; Warrick v. Queen's College, Oxford, L. R. 6 Ch. 716; De la Warr (Earl) v. Miles, 17 Ch. Div. 535. (m) Valentine v. Penny, Noy, 145; Ely (Dean and Ch. of) v. Warren, 2 Atk. 189; Wilson v. Willes, 7 East, 121. (n) Portland (Duke of) v. Hill, L. R. 2 Eq. 765. (0) Duberley v. Page, 2 T. R. 391; Shakespear v. Peppin, 6 T. R. 741. (p) Tilbury v. Silva, 45 Ch. Div. 98; Lloyd v. Jones, 6 C. B. 81; Bland v. Lipscombe, 4 E. & B. 712, n. marked, "when originally established in our law had all reference no doubt to the same object as common of pasture, viz., the maintenance and carrying on of husbandry, common of piscary being given for the sustenance of the tenant's family, common of turbary for his fuel, and common of estovers for repairing his house, his instruments of tillage, and the necessary fences of his grounds" (q). appendant Copyholders cannot claim a right of common of pasture Common appendant, in the proper sense of the word, that being cannot be a right given to freehold tenants of ancient arable land claimed by copyholders. by virtue of their original grants (r). The land need not be arable at the present time, but if it is arable the right can be claimed without evidence of actual user, and if it is not arable at present the continual usage of the right will be evidence that it was arable originally (s). "It is not to be understood that every tenant of a manor has by the common law such a right, but only that certain tenants have such a right, not by prescription, but as a right by common law incident to the grant. . . This right is not a common right of all tenants, but belongs only to each grantee before the Statute Quia Emptores of arable land by virtue of his individual grant, and as an 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 or 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" (t). In the case of copyholders, the right depends on the extent of ... (t) Dunraven (Earl of) v. Llewellyn, 15 Q. B. 791, 810. See also Warrick v. Queen's College, Oxford, L. R. 6 Ch. 716. Common of vicinage. Requisites of customary common. the original grant as shown by the usage under the custom. Common of vicinage is another right which cannot be claimed by copyholders under a custom (u). This right exists where the tenants of adjoining manors have from time immemorial intercommoned on a waste or commonable ground lying between them (x). It was at one time thought to be not so much a right of common as an excuse for unavoidable trespass (y), but it has since been held to be a reciprocal right of common which can be claimed under the Prescription Act, and may be viewed as founded on mutual covenants not to distrain the cattle, implied from long acquiescence on both sides (≈). It is destroyed by any complete inclosure or division between the neighbouring wastes or commonable grounds (a). Every custom under which any of these rights are claimed must be certain, reasonable, and limited. If uncertain, it cannot be shown to have existed from time immemorial, for every custom presupposes an ancient grant, which if uncertain would have been originally void. In a leading case (b) on this part of the subject, a custom was pleaded for all the tenants having gardens to dig turf on the waste for making grassplots as often and in such quantity as occasion required: and it was held the custom was void, as being uncertain and destructive of the waste. Lord 1995.2 ch. 86. Ellenborough in delivering judgment, said: "A custom, however ancient, must not be indefinite and uncertain; and here it is not defined to what sort of improvement the (u) Jones v. Robin, 10 Q. B. 620. (y) Wells v. Pearcy, 1 Bing. N. C. (2) Prichard v. Powell, 10 Q. B. 589; and see London (Commissioners of Sewers of) v. Glasse, L. R. 19 Eq. 134; Minet v. Morgan, L. R. 11 Eq. (a) Gullett v. Lopes, 13 East, 348. F custom extends; it is not stated to be in the way of agriculture or horticulture; it may mean all sorts of fanciful improvements, and every part of the garden may be converted into grass plots, and even mounds of earth raised and covered with turf from the common. There is nothing to restrain the tenants from taking the whole of the turbary of the common and destroying the pasture altogether. A custom of this description ought to have some limit, but here there is no limitation to the custom as laid, but caprice and fancy. Then this privilege is claimed to be exercised "when occasion requires," and it is not even confined to the occasions of the garden. It resolves itself, therefore, into the mere will and pleasure of the tenant, which is inconsistent with the rights of all the other commoners as well as of the lord. The third special plea also is too indefinite it goes to establish a right to take as much of the turf off the common as any tenant pleases, for making banks and mounds on his estate; it is not even confined to purposes of agriculture. All the customs laid, therefore, are bad, as being too indefinite and uncertain." In a case (c) where the plaintiffs, who sued on behalf of themselves and all other owners and occupiers of lands and tenements in a certain parish, claimed by prescription a right of common of pasture as appurtenant to their several lands and tenements within the parish over certain lammas lands lying therein partly freehold and partly copyhold of two manors for their commonable cattle according to the number limited by the homage of one of the manors in proportion to the annual value of the tenements, and during such portion of the season between the removal of the crops in each year and the time of preparing the land for sowing in the next succeeding year as the homage should fix, a demurrer to the claim on the ground that the prescriptive right thereby alleged was uncertain and unreasonable was upheld, the Court saying: (c) Baylis v. Tyssen-Amhurst, 6 Ch. Div. 500. "The law requires precision of some kind, although I agree it does not require precision to a day, and that season would do very well if the season had been between the sowing and the removal of the crops, because when a man had sown his land you could not come upon it. . . I cannot agree that you can have a legal custom to be determined by the people, whose interest it is to make it different from what it is. I think, therefore, if you want to allege a local custom you must have a proper beginning and proper ending. In the next place, I do not think this can be a legal custom, that is, that it could have occurred time out of mind, or from time immemorial. The statement says that the right is in proportion to the annual value of such tenements according to a scale fixed by the homage. Now annual value is, of course, constantly varying, and one can hardly imagine that before legal memory they could have decided the annual value varying from year to year, not according to the actual value but according to what the homage of a particular manor in part of the parish should determine. It does appear to me, I must say, inconsistent with the notion of ancient legal right, and I think it will be found that no such allegation from time immemorial could possibly be maintained as a reasonable thing to attribute to the time before King Richard I., which is the meaning of time immemorial” (d). Further, in order to make a right of common appurtenant to particular lands, it must be shown that there is some connection between the exercise of the right and the possession of the lands. Thus, in the case which has just been mentioned (e), Sir George Jessel, M.R., said: "This right of pasturage, as far as I can understand it, over lammas lands is always a right annexed to the ownership of some other lands. I use the term 'annexed' advisedly. That right, of course, must be determined on the ordinary (d) Ibid., 509, per Sir Geo. Jessel, M. R. (e) Baylis v. Tyssen-Amhurst, 6 Ch. Div. 500. |