By stat. 20 H. 3. c. 4. lords of woods, wastes, and pastures, in which their tenants have common of pasture, may approve such wastes, &c. provided sufficient pasture, with a sufficient ingress and egress, is left to the tenants. If the lord make a feoffment of the waste, &c., the feoffee, may approve, leaving a sufficiency of common; and this rule holds, although the lord continues seized of the manor within which the waste lies: for though in the statutes of Merton and Westminster the lord only is mentioned, yet as in those days statutes were not drawn with that fulness of expression with which they are at the present time, the term, "lord of the manor" must be considered as equivalent to "owner of the soil," where they stand in the same predicament. It is not necessary, therefore, that the person approving should be lord of the manor P, a seisin in fee of the waste, &c. is sufficient. It is worthy of remark, that the statute of Merton does not empower the lord to approve against any other right of common 4, except that of common of pasture, appendant or appurtenant. It does not extend to common in gross, the words of the statute being quantum pertinet ad tenementa sua, nor to common of piscary, of turbarys, estovers, and the like, the words used throughout the statute being pastura et communia pasturat. But though the lord cannot approve against common of turbary, yet where there is common of pasture, and common of turbary in the same waste", the com o Extended by stat. 13 Edw. 1. stat. 1. c. 46. to approvements by lords against their neighbours Confirmed by stat. 3 and 4 Edw. 6. c. 3. See also stat. 29 G. 2. c. 36. amended by stat. 31 G. 2. c. 41. p Glover v. Lane, 3 T. R. 445. q 2 Inst. 87. r 2 Inst. 86. s Grant v. Gunner, 1 Taunt. 435. u Fawcett v. Strickland, Willes, 57. for every acre; the defendant (admitting the right of common claimed by the plaintiff,) replied, that, at the time of the distress, the plaintiff had sixteen sheep on the common, over and above the sixteen that were distrained; that the defendant left the first-mentioned sixteen to use the common, and only distrained the supernumerary sixteen, with which the plaintiff had overcharged it of his own wrong, which were doing damage to the plaintiff. It does not appear that in this case any objection was made to the replication, for not stating, whether the thirty-two sheep were put on together, or separately. Indeed the only question made was, whether one commoner could distrain the cattle of another commoner, who had surcharged the common, which was determined in the negative; and the plaintiff had judgment. Hall v. Harding and others, B. R. E. 9 Geo. 3. 4 Burr. 2426. 1 Bl. R. 673. S. C. mon of turbary will not prevent the lord from justifying an inclosure against the common of pasture, if he leaves sufficient; for they are two distinct rights, and the concurrence of these rights in one person will not make any difference. In like manner the lord of the manor, or his grantee, may justify an approvement or inclosure against tenants having common of pasture, although they have a further right of digging sand, &c. if sufficient common of pasture be left. It is, however, observable, that if the inclosure operates as an injury to the other rights, the commoner will be entitled to an action on the case for such injury. By the approvement of part, agreeably to the rule laid down in the statute of Merton, that part is discharged of the common, insomuch, that if the tenant who has the common purchases that part, his common is not extinguished in the residue 2. If the lord incloses any part, and does not leave sufficient common in the residue, the commoner may break down the whole inclosure a. But if the common has been inclosed twenty years, the commoner cannot make an entry, but must bring an assize of common b. A custom for the lord to inclose without limit is bad, as tending to destroy the rights of the commoner altogether, but a custom to inclose, (even as against a common right of turbary,) leaving sufficiency of common, is good; but the onus of proving a sufficiency left lies on the lord d. By stat. 29 G. 2. c. 36. the lords and tenants may inclose part of the common for the purpose of planting and preserving trees fit for timber or underwood. And by stat. 31 G. 2. c. 41. these powers are declared to be vested in tenants for life or years determinable on lives. IV. Of the Remedy for Disturbance of Right of Common. WHATEVER destroys the right of common is a nuisance, and may be abated by the commoner, provided it can be done without interfering with the lord's right to, or interest in the x Shakespeare v. Peppin, 6 T. R. 741. y Agreed in Fawcett v. Strickland, Willes, 57. z 2 Inst. 87. a 2 Inst. 88. recognized in Arlett v Ellis and others, 7 B. & C. 346. b Creach v. Wilmot, Derby Summ. c Badger v. Ford, 3 B. & A. 153. soil. But if the nuisance cannot be abated, without such interference, the commoner must resort to his action on the case, and have satisfaction in damages. If the right of common be partially injured, the commoner ought not to abate the cause of such injury, more especially if in so doing he must necessarily interfere with the right to the soil. On this principle it was holden, in Cooper v. Marshall, 1 Burr. 265, that a commoner could not justify digging up the soil and destroying the coney-burrows erected in the common by the lord, who was entitled to free warren there. So where the lord had planted trees on the common, and the commoner cut them down, it was holden that the lord might maintain trespass, and that the commoner could not justify the abatement of the trees. The usual remedy adopted by commoners is an action on the case for a disturbance of the right of common, which may be maintained either against the lord or the owner of the soil, a stranger, or a commoner. If the action is brought against the wrong doerh, title being only inducement, it is not necessary to set it forth; it will be sufficient for the plaintiff to state in his declaration, that he was possessed of a certain quantity of land, &c., and by reason of such possession was entitled to the right, in the exercise of which he was disturbed. In this action the plaintiff must prove an injury sustained, but any injury in the minutest degree is sufficienti; e. g. the taking away the manure which has been dropped on the common by the cattle, although the proportion of the damage sustained by the plaintiff be found to amount to a farthing onlyk; for if, where the injury was small, a commoner could not maintain an action, a mere wrong doer might by repeated torts in course of time establish evidence of a right of common. If, to an action on the case by a commoner for injuring his right of common m, the defendant plead, that he dug turves under a license from the lord, he should add, that "sufficient common was left for the commoner;" and if he do not, the plaintiff is not obliged to reply, that there was not sufficient common left; because it is the gist of the action, and set forth in the declaration. f Kirby v. Sadgrove, 6 T. R. 483. B. R. k Pindar v. Wadsworth, 2 East's R. confirmed in error in Exch. Cha. 1 Bos. and Pul. 13. 154. See cases cited by Taunton, See Patrick v. Greenway, 1 Wms. m Greenhow v. Ilsley, Willes, 619. V. Of Surcharges by Commoners. FORMERLY, if one of the commoners had surcharged the common", that is, had put more cattle into the common than he was entitled to, the commoner who was aggrieved might sue out a writ of admeasurement of pasture, and by that suit the common was admeasured in respect of all the commoners, as well those who had not surcharged as those who had surcharged it, and the person who brought the action. An action on the case has been substituted in the place of this writ of admeasurement, as a more easy and speedy remedy; and it has been holden, that this action may be maintained by one commoner against another for a surcharge, although the plaintiff himself has been guilty of a surcharge. In the declaration, it is not necessary for the plaintiff to set forth the defendant's right of common, and shew in what manner he has exceeded that right, by putting in a greater number or an improper species of cattle; but the disturbance may be alleged generally (12) thus, "that the defendant wrongfully and injuriously ate up and depastured the grass on the common with divers sheep and lambs, to wit, 200 sheep and 200 lambs." Neither is it necessary that the plaintiff should state that he was exercising his right of common at the time of the surcharge. VI. Evidence. By stat. 2 and 3 W. 4. c. 71, entitled an Act for shortening the Time of Prescription in certain Cases, after reciting, that the expression "time immemorial, or time whereof the memory of man runneth not to the contrary," is now by the law of England, in many cases, considered to include and denote the whole period of time from the reign of King Richard n F. N. B. 125. B. o Hobson v. Todd, 4 T. R. 71. p Atkinson v. Teasdale, 3 Wils. 278. 2 Bl. R. 817. S. C. q Wells v. Watling, 2 Bl. R. 1233. (12) It seems, from Smith v. Feverel, 2 Mod. 6, and from a dictum of the court in Hassard v. Cantrell, Lutw. 107, that in an action against the lord it is necessary to shew a particular surcharge. the First, whereby the title to matters that have been long enjoyed, is sometimes defeated by shewing the commencement of such enjoyment, which is, in many cases, productive of inconvenience and injustice: it is by s. 1. enacted, "that no claim which may be lawfully made at the common law by custom, prescription, or grant, to any right of common or other profit or benefit, to be taken and enjoyed from or upon any land of the king, his heirs, or successors, or any land, being parcel of the Duchy of Lancaster, or of the Duchy of Cornwall, or of any ecclesiastical or lay person, or body corporate, except such matters as are herein specially provided for, and except tithes, rents, and services, shall, where such right, profit, or benefit, shall have been actually taken and enjoyed by any person claiming right thereto, without interruption, for the full period of thirty years, be defeated or destroyed by shewing only that such right, profit, or benefit, was first taken or enjoyed at any time prior to such period of thirty years, but such claim may be defeated in any other way by which the same is now liable to be defeated: and when such right, profit, or benefit, shall have been so taken and enjoyed as aforesaid, for the full period of sixty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was taken and enjoyed by some consent or agreement, expressly made or given for that purpose by deed or writing." By the seventh section, the time during which any disability exists, e. g. infancy, non compos, coverture, or tenancy for life, or during which any action shall have been pending, and diligently prosecuted, until abated by the death of any party, shall be excluded in the computation of the periods, except only where the claim is declared to be absolute. In replevin, defendant avowed taking the cattle damage feasant, plaintiff prescribed for common in the locus in quo, as appendant to his messuage. The plaintiff produced as a witness a person who claimed common in the same place. His testimony being objected to, Raymond, C. J. overruled the objection, observing, that where a person prescribes for common, not as appendant to his messuage, but by virtue of a custom within a parish or manor, and the custom is in issue, there a person within the manor or parish claiming common is interested, and cannot be a witness; but where a person prescribes for common, for all cattle levant and couchant on his messuage, as belonging to that messuage, there r Harvey v. Collison, Norfolk Sum. Ass. 1727. MSS. Serjt. Leeds. See also the opinion of Buller, J. in Walton v. Shelley, 1 T. R. 302. |