The commoner cannot cut down trees planted by the lord upon the waste, although there be not a sufficiency of common left (a), and where the owner of the waste has stored it with rabbits the commoners have not the right to stop up the burrows (). By the Statute of Westminster the Second, 13 Edw. I. st. 1, c. 46, declaratory of the common law, the owner of the soil of the waste may enlarge his own house or curtilage, or build any wind-mill, sheep-cote, cow-house, or a dwelling-house for any servant employed about the waste, without reference to the sufficiency of common remaining. It has been held that under the provisions of the above Statute, the owner of the soil of a common may erect thereon a house necessary for the habitation of beast-keepers for the care of the cattle of himself and other persons having rights of common there, and that he may also erect a house necessary for the habitation of a woodward to protect the woods and underwoods on the common (c). The Statute, however, applies only to common of pasture, and not to common of estovers or turbary; the buildings, therefore, must not interfere with such rights (d).

of waste.

"If the owner has prejudice in the soil where the com- Remedies of mon is, he will have remedy by action as in his other lord or owner lands" (e). If the cattle of a stranger are there, he may drive them out or impound them, or maintain trespass, and so if he finds the cattle of a stranger, he may drive the cattle of a commoner with them to a pound upon the waste in order to separate them, without alleging any custom (ƒ).

(d) Duberley v. Page, 2 T. R. 391;
Shakespear v. Peppin, 6 T. R. 741.
(e) Com. Dig. tit. Common (K.);
Robert Marys's Case, 9 Rep. 111 b;
and see Queen's Coll., Oxford v.
Hallett, 14 East, 489.

(f) Atkinson v. Teasdale, 2 W.
Bl. 817, 818; Hoskins v. Robins, 2
Wms. Saund. 320, 328; Thomas v.
Nichols, 3 Lev. 40.

Approvement of waste.

He
may also drive the cattle of a commoner to see whether
the cattle of a stranger are there, or whether the common
is surcharged, but not without a custom alleged; and if
the common be surcharged, he may detain the cattle till
satisfaction for the trespass, without a custom (g). If the
tenant surcharges the common, or puts in cattle not levant
and couchant, where he has a right only for cattle levant
and couchant, the lord may either distrain the beasts as
damage feasant, or bring an action for damages against the
tenant (). But while exercising his rights, the commoner
is not responsible for damage that may arise from the
negligence of others, as where the owner of the waste sets
up a stack of corn there which is eaten by the cattle, or the
like (i).

Again, by the Statute of Merton, 20 Henry III. c. 4, as extended by the Statute of Westminster the Second, 13 Edward I. st. 1, c. 46, and by the Statute 3 & 4 Edward VI. c. 3, the lord of the manor, or other owner of a waste (k), may approve or inclose for his own benefit part of the waste as against the commoner, provided only he leaves sufficient pasture for the commoners together with free ingress, egress, and regress from their tenements into the waste; but in this case the duty lies on the person making the inclosure to show that sufficient pasture remains (1); and provided this is the case at the time of making the inclosure, the validity of the act will not be affected by the fact that the pasture may afterwards turn out to be not sufficient, and a similar inclosure may be made as often as it happens that more than sufficient remains for the commoners (m). The Statute of Merton,

(g) Bromfield v. Teigh, 2 Lev. 87; Follet v. Troake, 2 Ld. Raym. 1186. (h) Dixon v. James, 1 Freem. 273; Ellis v. Rowles, Willes, 638; Woolrych, Commons, 201-203; Williams, Commons, 122; but see Anon., 3 Wils. 126.

(i) Farmor v. Hunt, Cro. Jac. 271. (k) Glover v. Lane, 3 T. R. 445. (1) Arlett v. Ellis, 7 B. & C. 346; Smith v. Brownlow (Earl), L. R. 9 Eq. 241; Betts v. Thompson, L. R. 6 Ch. 732.

(m) 2 Inst. 87.

however, has no reference to the case of commoners having rights of turbary, estovers, or the like (n). It is clear that many distinct rights of common may exist independently of each other in different parts of the same manorial waste. "A right of turbary may be exerciseable in the fenny and marshy places, or in places where the pared surface of the soil will provide fuel for the commoner; a right of estovers may be used in the portions covered with wood, or where the plants grow, which may be taken for fuel and repairs; a common of piscary may be exercised in the streams and ponds, a common of digging in the quarries, sand-pits, and coal mines; while a common of pasture may very often be taken over the whole waste, not only in places where pasture can be taken by the cattle but also wherever they may range in search of food. The question has therefore arisen on several occasions, whether inclosures can be made against common of pasture under the Statute of Merton in wastes where these other rights exist; and it was decided in the case of Fawcett v. Strickland (o) that the owner of the soil may inclose a portion of it for his own use against tenants having rights of pasture, notwithstanding that the same tenants have also appurtenant rights of turbary, piscary, estovers, digging, &c., provided that he satisfied the requirements of the statute by leaving sufficient pasture, and did not injure the minor rights of common” (p). Although the lord cannot inclose against such a right of turbary under the Statute of Merton, yet where there are two or more rights of common in the same waste, the right of turbary, &c., will not hinder the owner from inclosing against common of pasture, because they are distinct rights. "Supposing that one man has common of pasture and another a common of turbary in the same waste, he that has common of pasture cannot justify throwing down the lord's inclosures, provided there be

(n) Duberley v. Page, 2 T. R. 391. (0) Willes, 57.

(p) Elton, Commons, 218, 219.

sufficient common of pasture left, because another person has common of turbary in the same common. And wherever rights are in their nature perfectly distinct, as common of pasture and common of turbary certainly are, we think it will be just the same, though they happen to concur in one and the same person. If it were otherwise it would just be the same in common of piscary and common of estovers, for Lord Coke says that the statute does not extend to either of them. Yet it would seem to be absurd to say that a lord cannot inclose against common of pasture, because his tenants or some other persons have common of piscary or estovers in the same waste: whereas his inclosure may be no interruption to their enjoyment of their common of piscary or estovers, and very probably their common of estovers may be the better for such an inclosure. If indeed by such inclosure their common of piscary or estovers were affected, or they were interrupted in the enjoyment of either of these rights, they might certainly bring their action, and the lord in such a case could not justify such inclosure in prejudice of these rights" (1).

A comparison of the cases relating to inclosures in wastes where there are rights of common other than common of pasture will show that under the Statute of Merton the owner may inclose against appendant and appurtenant rights of pasture, leaving sufficient pasture, although the same persons, or others, have other rights of common in the same waste, as common of turbary, estovers, piscary, digging, &c., whether appurtenant or in gross; but the exercise of these rights must not be impeded by the inclosure; and that, without reference to the statute, the owner may inclose portions of ground wherein other rights of common are exercised, provided he does not thereby infringe the original grant and permission, the

(9) Per Willes, C. J., in Fawcett v. Strickland, Willes, 57, 60.

nature of which is shown by the extent of the copyholder's custom (r).

custom.

A custom has been alleged in some manors for the lord Inclosures of common by to grant parts of the waste as copyhold, without regard to the consent of the homage (s); but any grant so made would be invalid unless the lord could show that he had left sufficient pasture for the commoners, as a custom for the lord to inclose or grant leases of the waste without limit or restriction is bad (t). But where such a custom existed and the necessary conditions were fulfilled, the parcels so granted were considered in all respects copyhold tenements, as if they had been so from time immemorial (). By the Copyhold Act, 1887, however, it is now provided that after the 16th of September, 1887, it shall not be lawful for the lord of any manor to make grants of land not previously of copyhold tenure to any person, to hold by copy of court-roll or by tenure of a customary nature, without the previous consent of the Board of Agriculture; and the Board, in giving or withholding their consent, are to have regard to the same considerations as they would take into account in the case of an inclosure of common lands; and whenever any such grant has been lawfully made, the land comprised in it is held by the grantee as in free and common. socage. Previously to the passing of the above-mentioned Act, it had been decided that the effect of a licence by a lord to a tenant to inclose a piece of waste land was not to convey a copyhold interest to the tenant, but to give him a common-law holding. The lord in such a case, it

(r) Grant v. Gunner, 1 Taunt. 435; Duberley v. Page, 2 T. R. 391; Shakespear v. Peppin, 6 T. R. 741; Lake v. Plaxton, 10 Ex. 196; Lascelles v. Onslow (Lord), 2 Q. B. Div. 438; Robinson v. Duleep Singh, 11 Ch. Div. 798; Robertson v. Hartopp, 43 Ch. Div. 484.

(8) See Northwick (Lord) v. Stanway, 3 B. & P. 346; Badger v. Ford, 3 B. & Ald. 153; Arlett v. Ellis, 7 B. & C. 346.

(t) Badger v. Ford, 3 B. & Ald. 153; Arlett v. Ellis, 7 B. & C. 346. (u) Northwick (Lord) v. Stanway, 3 B. & P. 346.