been raised on the new "intakes" or inclosures (u). In several parts of Cornwall the tenants are allowed to break up the furze-crofts on the waste of a manor at periodical intervals (x), and in the Forest of Sherwood a custom was proved for the commoners in the manors within its precincts to take in temporary inclosures of land, called "breaks," varying in extent from 40 to 250 acres, and to keep them in cultivation for five or six years, after which they are again thrown open. For these inclosures, however, a licence has always been required from the lord of the manor, as well as from the Crown officials in charge of the forest (y). And in the common of Kingsmoor, in Somersetshire, the commoners were entitled to elect a jury of twelve to manage the moor, with power to inclose portions for their own use during their year of office (z). encroachment. The rights of commoners may also be lost by reason of Inclosure by an encroachment, and by neglect to assert the rights (a). Commoners are entitled to protect themselves against an encroacher by an action for disturbance of the common, or by pulling down the fences which prevent the enjoyment of their rights (b). encroach are of copy In the case of Attorney-General v. Tomline (c) the Court Whether of Appeal doubted whether the doctrine that encroach- ments by a ments made by a lessee enure to the benefit of the land- copyholder lord was applicable to the case of encroachment by a hold tenure. copyholder, so as to create a copyhold tenure of the land inclosed, but in the particular circumstances of the case they held that the doctrine, being a principle founded on presumption of fact, was excluded by the fact that the inclosure was not an encroachment, having been made by (u) See Elton, Commons, 277, 278. (x) Worgan, Surv. Cornw. 531; Fraser, Surv. Cornw. 56. (y) Lowe, Surv. Notts. 9. (z) See Smith v. Barrett, 1 Sid. 161, 162; Elton, Commons, 279. (a) See 8 & 9 Vict. c. 118, s. 52; (b) Att.-Gen. v. Tomline, 15 Ch. Inclosure of wastes by agicement. licence from the lord, and that subsequent admittance to the original copyhold tenement did not treat the inclosure as part of that tenement. "I do not say that under any circumstances an encroachment could become copyhold or be held by copyhold title, because, looking at the circumstances under which these questions as to accretions as between landlord and tenant have arisen, it may well be that they rest upon the principle that the lessee, being in a fiduciary position, is not at liberty to dispute his landlord's title to encroachments, the absolute title of the tenant to which might materially depreciate the value of the original premises when given up to the landlord, a principle which could hardly apply to encroachments by a copyholder" (d). The inclosure of waste land and the consequent extinguishment of the rights of common thereon may also be effected by agreement between the owner of the soil and the commoners. This practice was not uncommon before it became usual to obtain local Inclosure Acts, and it seems to have been regarded as the only mode of bringing wastes into cultivation over which there existed rights of common other than common of pasture, to which the Statutes of Merton and Westminster the Second (e) alone related. It was formerly thought that inclosures were beneficial not only to the parties directly interested but also to the community generally, and these agreements were favoured accordingly by the law and were enforced by the Court of Exchequer and the Court of Chancery, notwithstanding the dissent of one or two of the commoners or some informality in the making of the agreement. It was doubted after a time whether these decrees would be binding, unless all the parties had agreed; and it was, of course, found to be impossible in many cases to obtain the assent of all the commoners, or to choose a time when they were all capable (d) Ibid. 160, 161, per Cotton, L. J. (e) 20 Hen. III. c. 4; 13 Edw. I. st. 1, c. 46. of giving assent; and it accordingly became the practice to have the effect of such agreements confirmed by local Acts of Parliament (f). The method provided by these Acts was to appoint commissioners to allot and award the land to be inclosed amongst the owners and the commoners in proportion to their respective interests; it is said that about four thousand of these Acts were passed during the last two centuries (g). In the reign of George III. they became so numerous that a statute was passed in 1801 (h) for the purpose of consolidating the usual clauses. This statute contained various provisions regulating the proceedings of the commissioners to be appointed by the special local Acts, and protected the lord's seignories, rights, and royalties (i). The Act of 1801 has, however, been superseded by the Inclosure Acts, 1845 to 1882 (). Inclosure By the Inclosure Act, 1845, a body of commissioners was 1882. appointed under the style of the Inclosure Commissioners of England and Wales, and with their sanction inclosures have been more expeditiously and more cheaply effected (1). The rights and duties of these Commissioners were transferred to and vested in the Board of Agriculture by the Board of Agriculture Act, 1889 (m). The lands which Lands subject are subject to be inclosed under the provisions of the to be inclosed. Inclosure Acts, 1845 to 1882, are described in the 11th. section of the Act of 1845 as follows: "All lands subject to any rights of common whatsoever, and whether such rights may be exercised or enjoyed at all times, or may be exercised or enjoyed only during limited times, seasons, or periods, or be subject to any suspension or restriction (f) Elton, Commons, 166 et seq. (g) Williams, Commons, 249; Elton, Commons, 150-155, 166. (h) 41 Geo. III. c. 109. (i) Ibid. s. 40; and see Townley V. Gibson, 2 T. R. 401; and 22 & 23 Vict. c. 43, ss. 1—6. (k) 8 & 9 Vict. c. 118; 9 & 10 Vict. c. 70; 10 & 11 Vict. c. 111; 11 & 12 Vict. c. 99; 12 & 13 Vict. (1) 8 & 9 Vict. c. 118, s. 2. Acts 1845 to whatsoever in respect of the time of the enjoyment thereof; all gated and stinted pastures in which the property of the soil or of some part thereof, is in the owners of the cattlegates or other gates or stints, or any of them; all gated and stinted pastures in which no part of the property of the soil is in the owners of the cattle-gates or stints; all land held, occupied, or used in common, either at all times or during any time or season, or periodically, and either for all purposes or for any limited purpose, and whether the separate parcels of the several owners of the soil shall or shall not be known by metes, or bounds, or otherwise distinguishable; all land in which the property or right of or to the vesture, or herbage, or any part thereof during the whole or any part of the year, or the property or right of or to the wood or underwood growing or to grow thereon, is separated from the property of the soil; and all lot meadows and other lands the occupation or enjoyment of the several lots or parcels of which is subject to interchange among the respective owners in any known course of rotation, or otherwise "; but no waste lands of any manor on which the tenants had rights of common, nor any land subject to rights of common which might be exercised at all times of every year for cattle levant and couchant upon other land, or to any rights of common which may be exercised at all times of every year, and not Authority of limited by numbers or stints, were to be inclosed under for inclosures. the provisions of the Act without the previous authority of Parliament (n). This sanction is now necessary for every inclosure under the Board (o). A town or village green or a recreation ground is not subject to inclosure (p), and special provisions are contained in the Inclosure Acts for protecting such greens from encroachments and nuisances, and for fixing and preserving their boundaries (q). The Board of Agriculture may require, as a condition of Parliament (n) 8 & 9 Vict. c. 118, s. 12. (g) 20 & 21 Vict. c. 31, s. 12; 39 & 40 Vict. c. 56, s. 29. Act, 1876. any inclosure under these Acts, the appropriation of an allotment for the purposes of exercise and recreation for the inhabitants of the neighbourhood (r), or the appropriation of an allotment for the labouring poor (s). They are also empowered to remedy any defects or omissions in awards made under local Inclosure Acts, or under the Acts for facilitating the inclosure of open and arable lands (). The procedure to be adopted in obtaining the inclosure or regulation of any land which is subject to be inclosed under the Inclosure Acts is now regulated by the Commons Act, 1876. Under the provisions of that Act Commons the Board of Agriculture may entertain an application for a provisional order for the regulation of a common (including in the term "common" any land subject to inclosure), or for the inclosure of a common, or for the regulation of part and the inclosure of the remainder (u); but they will not sanction inclosure in severalty as opposed to regulation, unless it can be proved to their satisfaction, and also to the satisfaction of Parliament, that inclosure will be of benefit to the neighbourhood as well as to private interests and to the persons who are legally interested in the common (). The provisional order for the regulation of a common may provide generally or otherwise for the "adjustment of rights" in respect of such common, or for the "improvement of the common" (y), which terms are respectively explained in the 4th and 5th sections of the Act. With respect to commons situate wholly or partly in any town or towns, or within six miles thereof, the Act provides that notice of the intended application for a provisional order must be served on the urban sanitary authority (2), and for the purposes of the Act a "town" is defined as meaning any municipal borough, or Improvement Act District, or Local Govern (*) 8 & 9 Vict. c. 118, s. 30; and see 39 & 40 Vict. c. 56, s. 34. (s) 8 & 9 Vict. c. 118, s. 31. (t) Ibid. s. 152. E. (u) 39 & 40 Vict. c. 56, s. 2. (y) Ibid. s. 3. (2) Ibid. s. 8. |