Presumed release. whole (s). But if the right, though described as a right of common, is really an exclusive right of pasturage on the land during a certain part of the year, a release of part of the land would not extinguish the right (a). ▲ right of common may also be lost by abandonment (b). The communication of an intention to abandon the right, if acted upon by the other party, will determine the right, and though the commoner may not have the intention to abandon, it would seem that if he induces the other person to believe that the right is gone, as by doing some act inconsistent with his having the right, the commoner would be precluded from setting up his privilege again. Mere disuse of the privilege will in most cases amount to no more than evidence of an intention to abandon, which may be rebutted by other circumstances, as that the commoner had no occasion to use the privilege (c). And even after disuse and a temporary conversion of the tenement to purposes inconsistent with using a right of common, the commoner might disclaim an intention to give it up (d). Though a person entitled to a right of common be not in the actual enjoyment of it, yet by non-user only for a time he does not cease to have a vested estate or interest therein (e). After non-user for a very long period it is said that a release will be presumed, unless some reason be shown for the omission to exercise the right. In the case of Moore v. Rawson (f), which was concerned with an easement, it was said by Littledale, J., that "if the party who has acquired a right by grant ceases for a long time to make (2) Co. Litt. 122 a; Mors v. (a) Johnson v. Barnes, L. R. 8 (b) Moore v. Rawson, 3 B. & C. 332; Reg. v. Chorley, 12 Q. B. 515. (c) Ward v. Ward, 7 Exch. 838. (d) See Carr v. Lambert, L. R. 1 Ex. 168. (e) Co. Litt. 114 b. use of the privilege so granted to him, it may then be presumed that he has released the right. It is said however that, as he can only acquire it by twenty years' enjoyment (in the case of an easement of light), it ought not to be lost without disuse for the same period: and that, as enjoyment for such a length of time is necessary to found the presumption of a grant, there must be a similar non-user to raise a presumption of a release: and this reasoning may perhaps apply to a right of common or way." But a much longer disuse may be explained by the circumstances of the case, so as to raise no presumption of release or of abandonment, and it must after all be always a question of evidence of intention (g); and as the express release of a right would destroy it at any moment, "so the cesser of use coupled with any act clearly indicative of an intention to abandon the right would have the same effect as an express release without any reference to time" (h). or alteration The intention to abandon a right of common may be Destruction evinced by a destruction or alteration of the tenement to of tenement. which the privilege was attached. Thus when pastureland is converted into building ground and covered with houses and gardens on which cattle cannot be maintained, it is obvious that any customary privileges of husbandry will be extinct. But it has been held that a right of common was not extinguished by a conversion of pasture into an orchard and garden, a building having also been erected on part of the land. "It had land in a state in which it might have been laid down for pasture or been cultivated so as to produce plants and roots for the support of cattle; this is not, therefore, the case of a dominant tenement so changed in character as that cattle might not be fed off its produce"; and a claim of common of pasture under the Prescription Act for so many cattle as the land could support was sustained (i). When a right of common is appur (g) Ward v. Ward, 7 Exch. 838. (h) Reg. v. Chorley, 12 Q. B. 515, 519. (i) Carr v. Lambert, L. R. 1 Ex. 168, 175. Severance of common. Exhaustion Inclosure of Rights of the Ramsey v. Guddas 1893.19.8.228 tenant to a house, as where a copyholder has by custom a right of turbary or estovers, it will be lost by a destruction of the house, provided that there was no intention to rebuild (k); and similar rights are lost by such alterations of the tenement as are inconsistent with the purposes for which the right of common was given (?). The right of common may also be destroyed by severance from the tenement to which it was annexed, as where the copyholder alienates the tenement and attempts to reserve the privileges which were given for its necessary uses and profitable enjoyment (m). It will also come to an end, of course, when the produce of the waste which was to be shared by the commoner has been destroyed or exhausted, as where the peat in a turbary has been used up for fuel, or where particular kinds of minerals or other produce can no longer be found by the commoners (»). The copyholder's rights of common are extinguished by an inclosure of the waste, whether such inclosure be made by agreement, encroachment, approvement by the owner of the soil, or under a local custom or Act of Parliament. As to the rights of the lord over the manorial wastes. The lord, being owner of the soil of the wastes of the manor, may as a general rule exercise all acts of ownership over them which do not injure the rights of the commoners. The position of the lord was thus described by Bayley, J., in Arlett v. Ellis (0). "The lord by granting rights of common over his waste does not thereby exclude himself or his tenants from all use of the waste in which the right of common is to be exercised, but merely grants to others, in common with himself and his tenants, certain rights upon that waste. All that the lord has not granted remains in him. He may, therefore, apply the waste to (k) See Dunstan v. Tresider, 5 T. R. 2; Stott v. Stott, 16 East, 343. (1) Luttrel's Case, 4 Rep. 86 a, 87 a. (m) 1 Ro. Abr. 401. (n) Ely (Dean and Ch. of) v. Warren, 2 Atk. 189; Peardon v. Underhill, 16 Q. B. 120. (0) 7 B. & C. 346, 362, 365. any purposes not inconsistent with the rights which he has previously granted to the commoners. I have no difficulty in saying that in my judgment the lord has rights of his own reserved upon the waste. I do not say subservient to but concurrent with the rights of the commoners." The extent of the owner's rights can only be determined by the usage. It has been held that where the question arises which of the two rights is to be subservient to the other, the right of the owner of the soil will in general be deemed superior to that of the commoner, but that if the custom shows the owner's right to be subservient to that of the commoner, the former cannot use the common beyond that extent (p). There seems to be hardly any limit to the possible variations of the commoner's privileges, which in one manor may be nearly valueless, and elsewhere almost equivalent to a separate estate in the land. Subject to the invariable rules that the commoners will not be allowed to take the whole of the produce and that the owner of the soil will not be allowed to destroy the common, the usage will determine the nature of the tenant's rights, the greater or less extent of the privileges at the present time being evidence in each case of the nature of the original grant. Thus, where not restrained by the extent of the copyholders' custom, the lord as owner of the waste has a right to plant trees upon the waste (q), to stock it with rabbits and game (r), and to sport over it (s), to make shafts and pits, to open quarries or dig pits for taking clay, sand, or gravel, or to search for and take other minerals, doing as little damage as possible, the onus of showing that such acts injure the commoners' rights being on the commoners (t), and the lord has in certain cases the right to erect buildings on the waste and even to inclose part of it, if he can show that he has left a sufficiency of pasture for the commoners (u). The lord has likewise a right to turn his own commonable cattle upon the waste. Thus Lord Coke says: "If a man claims by prescription any manner of common in another man's land and that the owner of the land shall be excluded to have pasture, estovers, or the like, this is a prescription or custom against the law to exclude the owner of the soil, for it is against the nature of the word common, and it was implied in the first grant that the owner of the soil should take his reasonable profit there, as it has been adjudged" (x). This right is not strictly a right of common, as a man cannot have a right of common in his own land: but it may be described as a quasi right of common; and in cases where wastes and common lands have been inclosed and divided under the provisions of Acts of Parliament containing directions that allotments should be made to the various persons interested in the wastes in satisfaction of their lands, rights of common, and other rights therein, it has been held that the lord of the manor has a right to an allotment in respect of this right of turning on his commonable cattle (). "When land is spoken of as allotted to the lord, it is meant that whereas the lord had previously the right of soil over the whole common, subject to rights of common in the tenants which made that right of little or no value, a certain portion of the land is, on a division being made among all the parties interested, kept by the lord free from common rights, the rest of the land being apportioned among the commoners" (≈). (t) Bateson v. Green, 5 T. R. 411; Hall v. Byron, 4 Ch. Div. 667. (u) Patrick v. Stubbs, 9 M. & W. 830; Robinson v. Duleep Singh, 11 Ch. Div. 798. (x) Co. Litt. 122 a; White v. Shirland, cited there. (y) Arundel v. Falmouth (Viset.), 2 M. & S. 440; Lloyd v. Powis (Earl of), 4 E. & B. 485; Musgrave v. Inclosure Comrs., L. R. 9 Q. B. 162. () Per Lord Cranworth, L. C., |