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tion, he must prove that the grant was for the benefit of the individual burgesses (g); and if a right of common belongs to all freemen inhabiting within an ancient borough, it cannot properly be claimed as belonging to all the freemen inhabiting within the borough if its limits have been extended in modern times by an Act of Parliament (h). But although a corporation may prescribe by reason of the immemorial enjoyment of themselves and their predecessors, the inhabitants of a place who are not a corporation cannot prescribe for any profit à prendre or right of common as having been enjoyed by them as inhabitants from time immemorial. This was decided as early as the reign of Edward IV. by the Case of Coventry (i), in which it was held that inhabitants as such cannot claim common. This case was followed and confirmed by Gateward's Case (k), which is said to be "a landmark of the law on this subject" (1), and by subsequent decisions. Thus prescriptions for every inhabitant (m), or every householder (»), or for poor and indigent householders (o), for the tenants and inhabitants (p), or for all the dwellers in a parish or manor (9), to have rights of common have been adjudged void, because such fluctuating bodies of persons cannot hold to themselves and their successors, and also because they would be unable to release the right when they had obtained it. In Davies v. Williams (r) it was held that a claim to a right of common by prescription in occupiers could not be sustained even after verdict found, for a grant to successive occupiers would pass nothing, except to the first. In the case of Austin v. Amhurst (s) it

(g) Parry v. Thomas, 5 Ex. 37. (h) Beadsworth v. Torkington, 1 Q. B. 782.

(i) Yearb. Trin. 15 Edw. IV. fos. 29, 32 b.

(k) 6 Rep. 59 b.

(1) Per Byles, J., in Att.-Gen. v. Matthias, 4 K. & J. 579, 591.

(m) Mellor v. Spateman, 1 Wms. Saund, 339, 343; Pitts v. Kings

bridge Highw. Bd., 19 W. R. 884.

(n) Ordeway v. Orme, 1 Buls. 183. (0) Selby v. Robinson, 2 T. R. 758. (p) Grimstead v. Marlowe, 4 T. R. 717.

(a) Allgood v. Gibson, 25 W. R. 60.

(r) 16 Q. B. 546.
(s) 7 Ch. Div. 689.

appeared that the occupiers of lands under the copyholders of a manor claimed, and by a bye-law of the manorial court were declared to be entitled to, certain rights of common over the waste lands of the manor. Part of the lands had been sold to a railway company, and the occupiers claimed to share in the purchase-money. It was held that the claim could not be sustained, as it could not be made either by custom, grant, or prescription.

A Crown grant to the inhabitants of a parish to take certain profits à prendre out of a royal manor is valid, for the effect of such a grant would be to incorporate the inhabitants for the purpose of enabling them to exercise the rights (t). But an action to establish such a right is maintainable only by the inhabitants as a corporation so established, and not by an individual inhabitant suing merely on his own behalf (u). Such a Crown grant will not be presumed from proof of user by inhabitants if the presumption is inconsistent with what is known as to the past and existing state of the facts, and if there is no trace of such a corporation having actually existed at any time, and such a presumption would not be allowed in a case where at the time when such a corporation was supposed to be in existence and entitled to the rights, the tenants of the manor were themselves exercising an inconsistent right (x). The commoner has no estate in the land, but only a Rights of right to enter for the purpose of using his common, and he cannot take any other product of the soil (y). "A commoner entitled to common of pasture cannot take wood, hay, or other profit there growing, or cut down bushes, fern, or the like (without a special custom), although they prejudice his common; and a commoner, though he have a right by custom to cut fern, may not scatter the ashes

(t) Willingale v. Maitland, L. R. 3 Eq. 103; Chilton v. Corporation of London, 7 Ch. Div. 735.

(u) Chilton v. Corporation of London, 7 Ch. Div. 735.

(x) Rivers (Lord) v. Adams, 3 Ex. Div. 361.

(y) Cooper v. Marshall, 1 Burr. 259,265.

commoner.

Whether

commoner

can assign his right.

Incidental rights.

which a stranger has made by cutting or burning it" (z). And it is a general rule that all interferences with the soil, beyond the actual taking of the produce subject to the right of common are unlawful in the absence of a special custom or prescription (a).

Rights of common are in general exerciseable only by the commoner himself; but in certain cases, where the right has been created by grant and the quantity to be taken is certain, the commoner may sever his appurtenant right and grant it to a stranger (b). Thus, where a freeholder has common of pasture appurtenant for a fixed number of cattle, he may allow a stranger to use his right with the same number of cattle, because no alteration is thereby made in quantity of profit to be taken from the waste (c). And so when a commoner by grant has a right to take a certain quantity of wood, turf, or the like, the right may in general be severed from the tenement to which it appertains (d). But this rule does not apply to copyholders, their custom always being to have common on the wastes for their own use in respect of their copyhold tenements (e). A copyholder, therefore, is not allowed to take pasture with the cattle of other persons, even though he should at the time have none of his own, but he may turn on cattle hired for use upon his copyhold land (f); and so a copyholder cannot aliene his right of estovers, turbary, or piscary to a stranger.

The right of common includes all the facilities of ingress, egress, &c., which are necessary to its enjoyment, and the commoner has therefore a right "to abate every obstruc

(z) Woadson v. Nawton, 2 Stra. 777; and see Com. Dig. tit. Common (H.), and cases collected there.

(a) Sir Simon de Harecourt's Case, Yearb. Trin. 12 Hen. VIII. fo. 2, pl. 2.

(b) Drury v. Kent, Cro. Jac. 14; Daniel v. Hanslip, 2 Lev. 67; Lathbury v. Arnold, 1 Bing. 217.

(c) Bunn v. Channen, 5 Taunt. 244; and see Jones v. Richards, 6 A. & E. 530.

(d) See Woolrych, Commons, 94n.; and Cooke, Inclosures, 37, 40. (e) Ante, p. 255.

(f) See Fitz. Nat. Brev. 180 B.; and Rumsey v. Rawson, 2 Keb. 410, 493, 504.

tion to his cattle's grazing the grass which grows upon the spot of ground," as by pulling down gates, hedges, and fences (g). But abatement is not a form of remedy which is favoured by the law; "for the abator is judge in his own cause" (h); and it appears to be only in cases where the acts of the lord or a stranger are directly contrary to and inconsistent with the nature of the right of common that the law allows the commoner to abate the obstruction. Where the lord places a hedge or fence upon the common so as to prevent the commoner's cattle from going into or over the common, the commoner may abate such hedge or fence, and in such a case he is not restricted to pulling down so much of it as it may be necessary to remove for the purpose of enabling his cattle to enter and feed upon the residue of the common, but he is entitled to consider the whole of the fence so erected upon the common as a nuisance, and to remove it accordingly (i). But where the hedge is placed upon other land, and merely surrounds the common, it seems that he will only be entitled to remove so much as is necessary to make a way for his cattle to enter the common (). The commoner has no right to cut down any trees which may have been planted on the common by the owner of the soil (1), nor to interfere with the rabbits upon the common (m). In such cases the commoner has to bring his action, the burden of proof being upon him to show that the acts of the lord have caused him injury (n). A commoner may, however, pull down a house or a building, which has been wrongfully erected upon the common and which prevents his exercising his right as fully as he might

(g) Cooper v. Marshall, 1 Burr. 259, 265.

(h) Per Eyre, C. J., in Kirby v. Sadgrove, 1 B. & P. 13.

(i) Arlett v. Ellis, 7 B. & C. 346, 362.

(k) Yearb. Trin. 15 Hen. VII. fo. 10, pl. 18; Mason v. Cæsar, 2 Mod.

65; and notes to Mellor v. Spate-
man,
1 Wms. Saund. 339, 353 a.
(1) Kirby v. Sadgrove, 1 B. & P.

13.

(m) Coney's Case, Godb. 122;
Cooper v. Marshall, 1 Burr. 259.
(n) Arlett v. Ellis, 7 B. & C.
346, 363.

1913.264.349.

otherwise do, even although such house or building is actually occupied, provided he gives due notice to the occupier of the house or building, and requests him to remove it, and provided also that he does no unnecessary damage (0).

The commoner cannot maintain an action of trespass for damage done to the soil (p), but will have an action for damages against anyone who disturbs or impedes the exercise of his right. If he suffers by the way in which the owner uses the soil, he cannot by his own act remedy the injury, as by filling up pits, or the like, but must bring an action (g). An action will lie at the instance of the commoner against the lord for any damage or injury to his right of common whether such damage arises from the lord's interference with the soil, or from his surcharging the common, and so obstructing the commoner in the full enjoyment of his right. But when the action is brought against the lord, the particular damage must be shown by the commoner, and he must also prove that there is not sufficiency of common left (r). "If the defendant be lord of the manor, or put his cattle upon the common with the lord's licence, the commoner cannot maintain an action unless he has sustained a specific injury. It is not enough to show that the cattle consumed the grass, as in the case of a stranger, but it must appear that there was not a sufficiency of common left, in order to support the action" (s). In the case of an action brought against another commoner or a stranger, it is sufficient for the commoner to prove that owing to the act of the other commoner or stranger he could not have his

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