common in so beneficial a manner as he had before, for any act which prevents the enjoyment of the common in as ample a manner as before, and lessens the profit of the commoner will be a ground for an action against another commoner or a stranger (t). In Wells v. Watling (u) the plaintiff's case was that the defendant, who was not a commoner, had wrongfully turned a number of sheep upon the common, "whereby the plaintiff could not enjoy the benefit of his common in so ample a manner as he could before;" and on the part of the defendant it was contended that the plaintiff could not maintain the action because he had suffered no damage, as it did not appear that he had turned any sheep on the common that year. But De Grey, C. J., said: "The defendant has mistaken the ground of his objection. It is material for the plaintiff and he must show that he could not exercise his right tam amplo modo, &c. This has been both laid in the declaration and also proved by consequence; for every unlawful surcharge is pro tanto a diminution of the right and profit of every other commoner. It is certainly necessary that the plaintiff receive some actual injury in order to maintain this action, but it is laid down in Marys's Case (x), that the plaintiff must show the injury to be such quod non potuit habere, &c. (that he could not have his common in so beneficial a manner as before). The question is merely upon the nature of the defendant's acts, and the greatness or smallness of it, not on the plaintiff's exercise of his right. It is sufficient if the right be injured, whether it be exercised or not." In the same case, Gould, J., said: "The injury consists in preventing the enjoyment of the common tam amplo modo. It appears that an action lies for the damage let it be ever so minute." The same principle was followed in Hobson v. Todd (y), where it was held that one commoner who had surcharged might 1913.206.416 Distress. Representative suits. nevertheless maintain an action against another for surcharging the common, because his right had been injured by the act of the defendant. The smallest injury will be sufficient in one case the removal of the manure, which had been dropped on the common by the cattle, was held sufficient to ground an action (≈), and in another case it was held that one farthing's damage was sufficient to sustain a verdict (a). The cases, said Stirling, J., "appear to me to show that any act of a stranger, whereby the commoner is prevented from having the use and enjoyment of the common of pasture in as ample and beneficial a manner as he otherwise would, is a legal injury for which an action will lie, even although no actual damage be proved" (b). The commoner may distrain the cattle of a stranger doing damage, but cannot distrain when cattle are put in under a colour of right, as where the owner or another commoner puts in more than the right number of cattle (c); and the principle that there can be no distress where the cattle are on the commonable land under colour of right applies to common pur cause de vicinage as well as to common appurtenant (d). In cases of dispute between the owner of the waste and a number of persons having or claiming common there, courts of equity were accustomed to permit general suits to be brought either by one person claiming or defending a right against a number of others, or by a number of persons against the one who impedes their general right, in order to prevent a multiplicity of suits and actions (e), and because "all persons having a right in (z) Pindar v. Wadsworth, 2 East, 154. (a) Kitchen v. Knight, McClell. 373. (b) Robertson v. Hartopp, 43 Ch. Div. 484, 500. (c) Hall v. Harding, 1 W. Bl. 673. (d) Cape v. Scott, L. R. 9 Q. B. 269. (e) York (Mayor of) v. Pilkington, 1 Atk. 282; Tenham (Lord) v. Herbert, 2 Atk. 483. common which is invaded by a common enemy, although they may have different rights inter se, are entitled to join in attacking the common enemy in defence of their common right" (f). On these principles the Court of Chancery has confirmed the rights of owners making inclosures, leaving a sufficiency of common (9), and has held that one freehold tenant of a manor claiming by prescription under a presumed ancient grant can sue on behalf of himself and all the other freehold tenants to protect their rights over the waste against the lord making an inclosure (h). So one person who was a copyholder and also a freehold tenant of a manor has been allowed to sue on behalf of himself and all the other freehold and copyhold tenants for the purpose of establishing a right of common over the waste of the manor (i) : but where a tenant had filed a bill on behalf of himself and all the other copyhold and freehold tenants, he was not allowed to amend his bill by adding the name of an enfranchised copyholder as a co-plaintiff, it having been known at the time of filing the bill that there were many enfranchised copyholders of the manor who might have similar rights over the waste (k). It has also been held that an action for the purpose of establishing a right of common on the wastes of a forest may be maintained by an owner and occupier of land within the forest on behalf of themselves and all the other owners and occupiers (7). ment of common. The copyholder's right of common may be extinguished Extinguishin several ways. It is a rule in the case of freeholds that a right of common is destroyed when the commoner purchases an estate in the waste equal in duration, quality, (f) Per Lord Hatherley, L. C., in Warrick v. Queen's College, Oxford, L. R. 6 Ch. 716, 726. (g) Arthington v. Fawkes, 2 Vern. 356. (h) Warrick v. Queen's College, Oxford, L. R. 6 Ch. 716; Betts v. Thompson, L. R. 6 Ch. 732. (k) Peek v. Spencer, L. R. 5 Ch. (1) London (Commrs. of Sewers, &c. of) v. Glasse, L. R. 7 Ch. 456. and all other circumstances, to the estate which he had in the right of common: and in the case of a common appurtenant this is said to result from such a purchase of any portion of the waste: and any unity of possession will suspend the right of common (m). But in the case of a copyhold, the right of common will be capable of reviving, so long as the tenement remains demiseable by copy of court-roll; and a seizure into the hands of the lord will not extinguish the right of common, for "that right is annexed to all customary tenements demised or demiseable by copy of court-roll, and while the estate remains in the lord it continues demiseable. If the lord grants the fee to the copyholder, it never can again become a copyhold estate, for it ceases to be demiseable by copy of court-roll" (n). The right of common belonging to a copyholder by custom will not be destroyed, it seems, by his purchase of the manor, or at least will again attach to the land as soon as it becomes copyhold again after the merger of the titles (o). The right is lost by an enfranchisement of the copyhold by deed operating at common law, unless there are special words to continue it. Thus, where a copyholder for life had common by custom and the lord granted to him the freehold inheritance with the appurtenances, it was held that the right was lost, because it had been attached to the customary estate and not to the land, and that the general words "with the appurtenances were not sufficient to preserve the right of common (p). So where a copyholder had common of estovers by custom, and purchased the freehold with all commons appertaining thereto, the right was said to be lost, "but if there had been special words to make a new grant of the like common as he had before, that would have been good" (9); but (m) Tyrringham's Case, 4 Rep. 36a; Bradshaw v. Eyre, Cro. Eliz. 570. (n) Badger v. Ford, 3 B. & Ald. 153. (0) See Watk. Copyh. i. 369, n. in Lee v. Edwards (r) the Court said that if a copyholder has common in the lord's waste, and the lord enfeoffs him of his copyhold with all commons, the common is not gone. In another case where the lord had granted the freehold, together with all commons belonging or appertaining thereto and after the enfranchisement disputed the tenant's title to common, it was decreed in equity that the tenant should enjoy the same right as he had before, notwithstanding the legal defect in his grant, because the circumstances showed the intention of the grantor that it should survive (s). In all such cases the rule seems to be that the words "all commons used or occupied with the said messuage," or any similar expression, but not the words "commons appertaining or belonging thereto," will operate as a grant of a new right of common (t). But on an enfranchisement of the copyhold under the Copyhold Acts, all rights of common are preserved (u). When however the copyholder has common on the land of a stranger, not by custom but by prescription in the name of the lord of the manor, the right is considered to appertain to the freehold inheritance, and not to the customary estate, and it will not be lost in any case by enfranchisement (x); and it seems also that if the copyholder purchases part of the land over which the right of common was exercised, the right will not be extinguished if the lord would be thereby injured (y). abandon Every right of common may be extinguished by a Release and release to the owner of the soil where it has been exer- ment. cised, and it seems that a release of part of the land from the right of common would operate as a release of the (r) 1 Brownl. 173. (s) Styant v. Staker, 2 Vern. 250. (t) Bradshaw v. Eyre, Cro. Eliz. 570; Worledg v. Kingswel, ibid. 794; Barlow v. Rhodes, 1 Cr. & Mees. 439, 448. (u) Post, chap. xi. (x) Crowder v. Oldfield, 6 Mod. 19, 20. (y) See Revell v. Joddrell, 2 T. R. 415, 422, arg.; and Woolrych, Commons, 149. |