tional land to be used as common land; in the purchase of land to be used as a recreation ground for the neighbourhood; and the resolution binds the minority and all absent parties (x). The Act also contains provisions regarding the conveyance to trustees, to be appointed by the Board of Agriculture pursuant to the resolutions, of land which has been purchased under its provisions for use as common land, and as to the conveyance of land purchased for use as recreation ground to the local authority of the district (y). The Act also empowers the Board to direct by order under their seal that any expenses which they may have incurred in relation to the matter shall be paid to them out of the compensation money, and that, subject to such payment, the money shall be applied according to the resolutions (z).

If a company takes possession of the land without having complied with the provisions of the Lands Clauses Act of 1845 as to the payment of compensation for the commoners' rights, it will be liable to an action at the instance of any commoner for the disturbance of his rights, notwithstanding that it may have obtained a conveyance from the owner of the soil (a).

Where the right to the soil of the common or waste lands is in the lord of the manor, or in some person other than the commoners, the Lands Clauses Act of 1845 provides that upon payment or tender to the lord or such other person of the compensation which has been agreed upon or determined in respect of the right in the soil, or on the deposit thereof in the bank, the lord or other person is to convey the lands to the promoters of the undertaking; and upon default thereof the promoters may execute a deed

(x) Sect. 2 (1).

(y) Sect. 2 (2)-(5).

(*) Sect. 2 (1). See also 31 & 32 Vict. c. 89, s. 1, as to the right of the Board to take security for the payment of any costs which they

may incur in the holding of meetings or the making of inquiries under the Copyhold or Inclosure Acts.

(a) Stoneham v. London, Brighton & S. C. Rail. Co., L. R. 7 Q. B. 1.

Inclosures to promote growth of timber.

poll in the manner provided by the Act, and the execution of such conveyance or deed-poll vests the lands absolutely in the promoters, but without prejudice to the rights of the commoners (b).

There are also certain statutes which provide for temporary inclosures of wastes to promote the growth of timber and the planting of trees. Of these the first to be mentioned is the Act 22 Edw. IV. c. 7, which provided that if any person having wood growing on his own ground within any forest or chase, or purlieu thereof, should fell it with the king's licence, where the forest or chase belonged to the king, he as owner of the ground and the persons to whom he may have sold the wood might immediately after it was felled inclose the ground with hedges sufficient to keep out all manner of beasts and cattle for the purpose of preserving the young spring, and might keep up the hedges for the space of seven years and repair them as often as necessary within that time without further licence. In Sir Francis Barrington's Case (c) the Court held that this Act did not extend to the wood of a subject in which another person had a right of common, but only to a several wood. The statute 35 Hen. VIII. c. 17, however, enabled the owner of any wood in which others had a right of common to enclose a fourth part of the wood by agreement with "the tenants and inhabitants, being commoners," or by order of the two justices of the peace; but this statute was repealed in the year 1827 (d).

By the Act 29 Geo. II. c. 36, owners of wastes, woods, and pastures wherein other persons had rights of common of pasture, were empowered, with the assent of the major part in number and value of the owners and occupiers of the tenements to which the right of common of pasture belonged, to inclose and keep in severalty for the growth and preservation of timber and underwood any part of such

(b) 8 Vict. c. 18, s. 100.

(c) 8 Rep. 136 b.

(d) 7 & 8 Geo. IV. c. 27, s. 1; see Dibben v. Anglesea (Marquis of), 2 Cr. & M. 722.

wastes, woods, and pastures for such time and in such manner, and upon such conditions, as should be agreed upon; and similar powers of inclosure were given to the major part in number or value of the owners and occupiers of the tenements to which the right of common belonged, with the assent of the owners of the wastes, woods, and pastures (e). The Act also provided that any recompense which might be agreed to be given to the commoners should be paid to the overseers of the poor of the parish where the wastes lay for the relief of the poor (f); but this provision was repealed by an amending Act passed shortly afterwards (g), which, after reciting that in many cases the right of common of pasture in the ground inclosed might not belong to all the owners and occupiers of tenements in the parish where the waste lay, directed the recompense to be paid to the persons interested in the right of common in proportion to their respective interests (). The amending Act, however, extended the powers of the Act of 29 Geo. II. to tenants for life or years determinable on lives during the subsistence of their estates (i). These statutes were considered in the case of Nicholls v. Mitford (k), where it appeared that the freehold tenants of the manor of Bedham in Sussex were not only entitled to common of pasture, but were also collectively the owners of the bushes and underwoods growing on the wastes of the manor. In 1769 the lord of the manor entered into an agreement under the Act 29 Geo. II. c. 36, with the major part of the tenants for the periodical inclosure of parts of the waste for the growth and preservation of timber and underwood, and this agreement appeared to have been acted upon from the year 1773 until 1880, when two of the freehold tenants of the manor raised an action on behalf of themselves and all other the freehold tenants to restrain the lord from further infringement of their

(e) Sect. 1.

(f) Sect. 2.

(g) 31 Geo. II. c. 41.

(h) Ibid. s. 1.
(i) Ibid. ss. 2, 3.
(k) 20 Ch. Div. 380.

Other statutory powers of dealing with wastes. Conveyance for church, churchyard, &c.

Conveyance for site of school or

rights. In a special case setting out the above facts, it was held by Hall, V.-C., that the Act 29 Geo. II. c. 36 applied only to agreements by persons entitled to rights of common of pasture, and not to agreements by persons who were owners of the bushes and underwoods, and that accordingly the agreement of 1739 was inoperative against such owners, and that the lord had no right to inclose as against them. "The Act," said the Vice-Chancellor, "would seem to be an extension of the Statute of Merton, so as to authorize inclosure with the specified assent though there would not be sufficient common left for the commoners, but not to subject to inclosure any land of which the lord was not, subject only to the rights of the commoners, the owner" (1).

There are also various statutes which enable lords of manors to convey portions of the wastes or common lands for different purposes. Thus by the Act 51 Geo. III. c. 115 a lord may by deed enrolled as provided in the statute grant any portion, not exceeding five statute acres, freed and absolutely discharged from all manorial rights, including rights of common, to the minister of any parish and his successors, for the purposes of erecting or enlarging a church or chapel, or for a churchyard or burial ground, or for a glebe to erect a mansion house and other conveniences for the residence of a clergyman (m); but it has been held that this does not enable the lord to make grants overriding any rights of the public or customary rights of inhabitants (n). Similar powers are also given. to the lord to convey a portion of the wastes for the purposes of the Church Building Acts (0).

Again, by the Act 4 & 5 Vict. c. 38, which re-enacts and extends the provisions of the Act 6 & 7 Will. IV.

(1) Ibid., 387.

(m) Sect. 2.

(n) Forbes v. Eccles. Comrs. for England, L. R. 15 Eq. 51. For instances of public and customary rights belonging to inhabitants,

see Abbot v. Weekly, 1 Lev. 176; and Hall v. Nottingham, 1 Ex. Div. 1.

(0) 58 Geo. III. c. 45, s. 38; 19 & 20 Vict. c. 104, s. 28.

institution.

c. 70 and affords further facilities for the conveyance of literary, &c. sites for schools, provision is made for the gift of any quantity of land, not exceeding one acre, as a site for a school for the education of poor persons, or for a residence for the schoolmaster; and it is enacted that where a lord of a manor gratuitously conveys any portion of waste or commonable land for these purposes, the rights and interests of all persons interested in the land so conveyed are to be barred and divested by the conveyance; but if the land ceases to be used for the purposes of the Act, it is to revert to its former condition (p). The lord may also grant any portion of waste or commonable land, not exceeding one acre, as a site for an institution of the nature specified in the Literary and Scientific Institutions Act, 1854 (q).

The guardians of the poor are also empowered, with the consent of the lord of the manor and the major part of the commoners, to inclose any portion, not exceeding fifty acres, of the waste or common lands lying in or near the parish, and to cultivate and improve the land for the use and benefit of the poor of the parish, or to let it to poor and industrious inhabitants of the parish for occupation and cultivation(); and the guardians have similar powers for similar purposes over forest and waste lands belonging to the Crown with the consent of the Treasury (s).

(p) 4 & 5 Vict. c. 38, s. 2; and

see 15 & 16 Vict. c. 49.

(g) 17 & 18 Vict. c. 112.

(r) 1 & 2 Will. IV. c. 42, s. 2;

5 & 6 Will. IV. c. 69, s. 4.

(s) 1 & 2 Will. IV. c. 59, s. 1.

Inclosures by guardians of

the poor.