Prescription. Q. B. Div. 245). Where a bishop, having free warren by prescription over the demesne and tenanted lands of a manor whereof he was seised jure ecclesiæ, accepted a grant from the Crown to himself and his successors of free warren over the demesne lands of all his manors in England: it was held that, even admitting the grant to have the effect of extinguishing the prescription as to the demesne lands (which the court considered to be at least doubtful), it could not affect it over the other lands of the manor (Carnarvon v. Villebois, 13 M. & W. 313).

Prescription against the Crown.

Formerly a prescription could not run against the king, as no delay in resorting to his remedy would bar his right. The maxim was nullum tempus occurrit regi (2 Inst. 273; 2 Roll. 264, 1. 40; Com. Dig. Prescription (F. 1); Broom's Maxims, p. 61, 6th ed.) Liberties and franchises were excepted in the statute 9 Geo. 3, c. 16, limiting the claims of the Crown to sixty years (see post, note on the limitation of the rights of the Crown). By 32 Geo. 3, c. 58, the Crown is barred in informations for usurping corporate offices or franchises by the lapse of six years (See Bac. Abr. 7th ed., Prerogative (E. 6), 467, and stat. 7 Will. 4 & 1 Vict. c. 78, s. 23; R. v. Harris, 11 Ad. & Ell. 518). By the stat. 2 & 3 Will. 4, c. 71, ss. 1, 2 (ante, pp. 1, 4), the Crown is placed upon the same footing with the subject as to the rights affected by those sections. Secus, as to the rights affected by sect. 3 (Perry v. Eames, 1891, 1 Ch. 658).

Several species of common.

What commonable

(2.) OF RIGHTS OF COMMON.

Common is a right or privilege which one or more persons claim to take or use in some part or portion of that which another man's lands, waters, woods, &c., naturally produce, without having an absolute property in such lands, waters, woods, &c. It is called an incorporeal right, which lies in grant, as originally commencing by some agreement between lords and tenants, for some valuable purposes, which by age being formed into a prescription continues good, although there be no deed or instrument in writing that proves the original contract or agreement (4 Rep. 37 a; 2 Inst. 65; Vent. 387; Bac. Abr. Common). Common has been divided into five sorts, viz.: 1st, Common of pasture, which is a right or liberty that one man or more have to feed or fodder their beasts or cattle in another man's land. 2ndly, Common of turbary, or the liberty of cutting turves in another's soil, to be burnt in a house (see Noy, 145; 7 East, 121; 3 Lev. 165). 3rdly, Common of estovers, which is a right of taking trees, loppings, shrubs, or underwood, in another's woods, coppices, &c. (see Cro. Jac. 25, 256; 5 Rep. 25 a; 4 Rep. 87 a; Cro. Eliz. 820; Plowd. 381). 4thly, Common of piscary, or a right and liberty of taking fish in another's pond, pool, or river. And 5thly, a liberty which in some manors the tenants have, of digging and taking sand, gravel, stone, &c. in the lord's soil (Bac. Abr. Common, (A.)). All claims of this kind, in order to be valid, must be made with some limitation and restriction (Clayton v. Corby, 5 Q. B. 419).

A party may prescribe to take the sole and several herbage which may be granted (Co. Litt. 122; Hoskins v. Robins, Pollexf. 13; Potter v. North, rights may be 1 Vent. 385; Welcome v. Upton, 6 M. & W. 543; see North v. Cox, 1 Lev. prescribed for. 253; Johnson v. Barnes, L. R. 8 C. P. 527). Instances of sole pasturage are to be found in the South Downs, in Sussex, and they are frequently transferred in gross; it is the same with the cattle-gates in the North of England, although some have thought the owners of them are tenants in common of the soil (Welcome v. Upton, 6 M. & W. 541, 542; R. v. Whixley, 1 T. R. 137). The grant of vesturam terræ or herbagium terræ does not pass the land or soil itself (Co. Litt. 4 b). A cattle-gate is not a more extensive right than the above, and does not include the right to the soil (Rigg v. Lonsdale, 1 H. & N. 923, 936). A person may prescribe to have the sole and several pasture, vesture or herbage, in exclusion of the owner of the

Common.

soil, for a limited time in every year (Fitz. Prescription, 51; Co. Litt. 122 a; Of Rights of 2 Roll. Abr. 267 (L.) pl. 6; Winch's Rep. 5; Hutt. 45); or for the whole year (Hoskins v. Robins, 2 Saund. 324; S. C., 2 Lev. 2; Pollexf. 13; 1 Mod. 74). So a tenant may prescribe to have all the thorns growing upon such a place in exclusion of the owner of the soil (Dowglass v. Kendal, Cro. Jac. 256). But a man cannot prescribe to have common eo nomine for the whole year, in exclusion of the lord, for this is held to be repugnant to the nature of the thing (Co. Litt. 122 a; 1 Roll. Abr. 396 (A.), pl. 1, 2; 2 Roll. Abr. 267, pl. 3; 2 Lev. 268; 1 Ventr. 395). However, it is said that the lord may by custom be restrained to a qualified right of common during a part of the year (Yelv. 129; 1 Brownl. 187; Cro. Jac. 208, 257). So it is said the lord may be restrained, together with the commoners, from using a common at all during a part of the year (1 Roll. Abr. 405, 406); and that the commoners may prescribe to have common in exclusion of the lord for part of a year (2 Roll. Abr. 267 (L.), pl. 1; 1 Wms. Saund. 353, n. (2)). The claim in right of a freehold estate and the lands which formerly belonged to the manor farm, of a separate right of feeding and folding an unlimited number of sheep, is not a claim of a right of common, but of something in the nature of a separate right of feeding and folding (Kielway, 198 a; Punsany and Leader's case, 1 Leon. 11), which may have arisen out of an exception made by the lord upon granting the lands, or it may have been created by an act of parliament (Ivatt v. Mann, 3 M. & G. 699). A right of pannage, i. e., the consumption by pigs of fallen acorns, may be prescribed for (Chilton v. London, 7 Ch. D. 562); as also a right to cut and carry away litter from a forest (De la Warr v. Miles, 17 Ch. Div. 535).

A person cannot prescribe for a right of common as occupier of a mes- Claims to suage (English v. Burnell, 2 Wils. 258). And a plea claiming an im- common by memorial right of common in occupiers for the time being, was held bad prescription. after verdict (Davies v. Williams, 16 Q. B. 543). Where rights of common have been exercised for many years by the freehold tenants of a manor, and also by the inhabitants, the court will presume that the inhabitants claimed through the freehold tenants. And where such rights have been exercised for many years, the court will try to find a legal origin for those rights, and presume a grant, if necessary (Warrick v. Queen's College, 6 Ch. 716). Such rights may be claimed in the case of copyhold tenants of the manor by custom, and in the case of the freehold tenants by prescription (16.)

Rights of common in the wastes of the lord may be claimed by custom Claims to by copyholders (Gateward's case, 6 Rep. 59; Bean v. Bloom, 2 Bl. R. 926; common by S. C., 3 Wils. 456), but not by "occupiers" of copyhold lands (Austin v. custom. Amhurst, 7 Ch. D. 689; Knight v. King, 20 L. T. 494; as to a charitable trust for occupiers, see Re Christchurch Act, 38 Ch. Div. 520).

Common of pasture is, where one person has, in common with other Common of persons, the right of taking by the mouths of his cattle the herbage pasture. growing on the land of which some other person is the owner. This

species of common is either appendant, appurtenant, or in gross (Selw. N.

P. Common, s. 2).

Common appendant is a right belonging to the owners and occupiers of Common aparable lands to put commonable beasts upon the lord's waste, and upon pendant. the lands of other persons within the same manor. Commonable beasts are either horses and oxen to plough the land, and cows and sheep to manure it (Co. Litt. 122 a). This as matter of universal right was originally permitted not only for the encouragement of agriculture but for the necessity of the thing. For when lords of manors granted out parcels of land to tenants for services either done or to be done, these tenants could not plough or manure the land without beasts. These beasts could not be sustained without pasture, and pasture could not be had but in the lord's wastes and in the uninclosed fallow grounds of themselves and the other tenants. The law therefore annexed this right of common as inseparably incident to the grant of the lands (2 Bl. Com. 33; Tyrringham's case, 4 Rep. 36 a; 2 Inst. 85). There is no general common law right of

Common.

Of Rights of tenants of a manor to common appendant in the waste. Parke, B., said, although there are some books which state that common appendant is of common right, and that common appendant is the common law right of every free tenant in the lord's wastes (See Mellor v. Spateman, 1 Wms. Saund. 346 d, 6th ed.; Bennett v. Reeve, Willes, 227; Com. Dig. Comm. B.), it is not to be understood that every tenant of a manor has by common law such a right, but only that certain tenants have such a right, not by prescription, but as a right at common law, incident to the grant. The right therefore is not a common right of all tenants, but belongs only to each grantee, before the stat. Quia emptores, of arable land by virtue of his individual grant and as incident thereto; and it is as much a peculiar right of the grantee as one derived by express grant, or by prescription, though it differs in its extent being limited to such cattle as are kept for ploughing and manuring the arable land granted, and as are of a description fit for that purpose; whereas the right by grant or prescription has no such limits and depends on the will of the grantor (Dunraven v. Llewellyn, 15 Q. B. 810, 811). As to this decision see Williams' Real Prop., App. C., 605, 15th ed., and Warrick v. Queen's College, 10 Eq. 123.

Meaning of levant and couchant.

Common appurtenant.

Common appendant can only be claimed in the lord's wastes (2 Inst. 85; 1 Roll. 396; 4 Rep. 37), for the claimant's own commonable cattle levant and couchant upon the land (Ib.; Burr. 320). A right of common for cattle "levant and couchant," upon inclosed land, extends to such cattle as the winter eatage of the land, together with the produce of it during the summer, is capable of maintaining (Whitelock v. Hutchinson, 2 M. & Rob. 205; 5 T. R. 46; Willes, R. 227; 8 T. R. 396; Willis v. Ward, 2 Chit. 297). In other words the right is governed by the number of cattle which the commoner has the means of housing and providing for in the winter (Dyce v. Hay, 1 Macq. H. L. C. 313). Levant and couchant expresses a measure of the number of cattle that may be put in, and does not necessarily refer to cattle actually fed upon the particular land (Johnson v. Barnes, L. R. 7 C. P. 592). It is rather the measure of capacity of the land than a condition to be actually complied with (Robertson v. Hartopp, 43 Ch. Div. 517; see Carr v. Lambert, L. R. 1 Exch. 168). This species of common must have existed from time immemorial (1 Roll. Abr. 396), and only arises in the case of grants of arable land (Warrick v. Queen's College, 6 Ch. 730). It might formerly be claimed as appendant to a cottage, because by 31 Eliz. c. 7 (repealed by 15 Geo. 3, c. 32), it was requisite for a cottage to have four acres of land attached to it (Emerson v. Selby, 1 Salk. 169; 2 Lord Raym. 1015). Common appendant is so necessarily incident to the land, that it cannot be severed from it, and, therefore, however often the land may be divided, every parcel of it is entitled to common appendant (Willes, 240). The right to common appendant is extinguished by the erection of permanent buildings on the land in respect of which it is claimed, but not by the conversion of arable land into pasture (Warrick v. Queen's College, 6 Ch. 730; Robertson v. Hartopp, 43 Ch. Div. 517).

Common appurtenant may be claimed by prescription or by grant. And after the extinction of a prescriptive right of common by a unity of possession of the waste with the land in respect of which the right is claimed, proof that the successive tenants of such land for above fifty years under different lords had actually enjoyed the right of common is evidence for presuming a new grant from the lord (Cowlam v. Slack, 15 East, 108). This species of common, though frequently confounded with common appendant, differs from it in many circumstances. It may be created by grant or prescription. It may be claimed as annexed to any kind of land, whereas common appendant can only be claimed on account of ancient arable land (4 Rep. 37 a). And it may be not only for beasts usually commonable, such as horses, oxen and sheep, but likewise for goats, swine, &c. (1 Roll. Abr. 399); but not geese (Morley v. Clifford, 20 Ch. D. 753). A fold course is a right of common appurtenant of pasture for sheep (Robinson v. Duleep Singh, 11 Ch. Div. 798). Common appurtenant

Common.

for a fractional part of a cow was claimed in Nicholls v. Chapman (5 H. & Of Rights of N. 643). In the case of common appurtenant there must be some connection between the occupation of the lands in respect of which the right is enjoyed, and the right itself, which connection must limit the right (Baylis v. Tyssen-Amhurst, 6 Ch. D. 58). A copyholder cannot lawfully claim common appurtenant without stint in respect of his copyhold tenement; but such common must be limited to the cattle levant and couchant on the tenement to which it is annexed, or the number must be ascertained by the court rolls, or in some other manner (Morley v. Clifford, 20 Ch. D. 753; see Benson v. Chester, 8 T. R. 396; Scholes v. Hargraves, 5 T. R. 46). A person may claim common appurtenant for a certain number of cattle, in which case the cattle of a stranger may be put upon the common, as no injury can arise to the owner of the soil as the number is ascertained (Bac. Abr. 96; Richard v. Squibb, 1 Ld. Raym. 726; see Stevens v. Austin, 2 Mod. 185; Thornel v. Lassels, Cro. Jac. 27). The principle furnished by Potter v. North (1 Wms. Saund. 635; Hoskins v. Robins, 2 Wms. Saund. 726), as to claims to common by custom or prescription, seems to be to ascertain the extent of the rights conferred, and the rights reserved by the grant, and to see whether the act be in derogation of the latter (Jones v. Richard, 6 Ad. & Ell. 530; see 5 Ib. 413). If the common appurtenant be for an uncertain number of cattle, it is limited to the claimant's own commonable cattle levant and couchant upon his lands (See Manchester v. Vale, 1 Wms. Saund. 28, ed. 1871; and see further, as to common appurtenant for cattle levant and couchant, Bowen v. Jenkins, 6 Ad. & Ell. 911). A right of common appurtenant for cattle levant and couchant proved by acts of user for thirty years, and exercised in respect of a tenement formerly in a condition to support cattle, is not extinguished or suspended by reason of a change in the condition of the tenement, if the tenement might still easily be turned to the purpose of feeding cattle (Carr v. Lambert, L. R. 1 Exch. 168). As to the evidence in support of a claim to common appurtenant, see Commissioners of Sewers v. Glasse, 19 Eq. 150; and as to the proper mode of pleading a prescriptive right to common appurtenant, see Baylis v. Tyssen-Amhurst, 6 Ch. D. 500.

If a man purchase part of the land wherein common appendant is to be Apportionhad, the common shall be apportioned, because it is of common right, but ment of it is otherwise as to common appurtenant and other kinds of common, as common. common of estovers or piscary. But both common appendant and common appurtenant will be apportioned on alienation of part of the land to which the common is appendant or appurtenant (Co. Litt. 122 a, 164 a; Tyrringham's case, 4 Rep. 36; Wild's case, 8 Rep. 78; O'Hare v. Fahy, 10 Ir. C. L. R. 318).

The rent-charges under the acts for the commutation of tithes in England and Wales, in respect of the tithes of common appendant or appurtenant, are to be a charge on the allotments thereafter to be made in respect of the lands to which the right of common is attached (2 & 3 Vict. c. 62, s. 14).

Common because of vicinage or neighbourhood, is not strictly a right of Common common. It happens where the inhabitants of two townships which lie because of contiguous to each other have usually intercommoned with each other, vicinage. the beasts of the one straying mutually into the other's fields without any molestation from either. It is confined to two townships (Commissioners of Sewers v. Glasse, 19 Eq. 159), and if you have three vills, each of which has a common, A., B. and C., and vill B. lies between A. and C., B. may intercommon with A. or C., but A. cannot intercommon with C. (Ib.) It is only a permissive right, intended to excuse, what, in strictness, is a trespass in both, and to prevent a multiplicity of suits (Musgrove v. Cave, Willes, 322). And therefore either township may inclose and bar out the other, though they have intercommoned time out of mind. Neither hath any person of one town a right to put his beasts originally into the other's common; but if they escape and stray thither of them

S.

D

Of Bights of
Common.

Common because of

vicinage.

selves, the law winks at the trespass (Co. Litt. 121, 122; 4 Rep. 38; 2 Bl. Comm. 33). The position, that this species of common is not a right, but matter of excuse for a trespass, is sufficiently established (Wells v. Pearcy, 1 Bing. N. C. 556; Gullett v. Lopes, 13 East, 348). Although it may be claimed by prescription, it is rather matter of immemorial custom. The substance of the custom is, that cattle lawfully on one common have been used to stray upon the other. All that it is necessary therefore for the pleadings to show is, that the cattle were lawfully on their own common before they strayed, and that is done by showing thirty years' user under the statute 2 & 3 Will. 4, c. 71 (Prichard v. Powell, 10 Q. B. 589; see Hetherington v. Vane, 4 B. & Ald. 428). Reputation may be given in evidence in support of the immemorial right of such common so pleaded (Prichard v. Powell, sup.) If to an action of trespass in the common called A., the defendant plead that A. and B. commons lie open to each other, and then prescribe for a right in both commons, the plaintiff must traverse the whole prescription (Morewood v. Wood, 14 East, 327). Common pur cause de vicinage cannot be set up as an excuse for cattle rambling from downs subject to common of pasture into downs of which the owner has exclusive possession, notwithstanding there be no fence or visible boundary separating the downs (Heath v. Elliot, 4 Bing. N. C. 388). This common cannot be claimed by usage between the close of an individual and a common (Clarke v. Tinker, 10 Q. B. 604). Nor can it be claimed by custom in respect of a private estate over which no other right of common is shown (Jones v. Robin, 10 Q. B. 620).

To establish a right of common pur cause de vicinage an intercommoning between the two districts must be alleged and proved. It is not enough to show that there was no fence between the two districts, and that cattle strayed from one to the other, but were constantly either driven back by their own respective owners, or turned off by the owners of the land into which they had strayed (Clarke v. Tinker, 10 Q. B. 604).

Where the commons of two towns adjoin, and a right of common by reason of vicinage exists, and in one town there are fifty acres of common and in the other town one hundred acres of common, the commoners in the first town cannot put more cattle upon the common of fifty acres than it will feed, without any respect to the common in the other town (Corbet's case, 7 Rep. 5 a). Where common pur cause de vicinage exists one commoner cannot take the law into his own hands and distrain another commoner's cattle for a surcharge (Cape v. Scott, L. R. 9 Q. B. 269).

An end may be put to this species of common by inclosure (Tyrringham's case, 4 Rep. 36 b, 38 b, 39 a; Corbet's case, 7 Rep. 5 a). Where one of two adjoining commons, with common of vicinage, is inclosed and fenced off by the owner of the soil, leaving open only a passage sufficient for the highway, which led over the one to the other; yet, as the separation was not complete, so as to prevent cattle straying from one to the other by means of the highway, the common by vicinage still continues (Gullett v. Lopes, 13 East, 348). In case of open field lands, the owner of any particular spot may, by custom, exclude the other from right of pasture there, by inclosing his own land (2 Wils. 269). By a local act, all rights of common whatever in B. were extinguished; the wastes were divided; the owners of allotments were directed to inclose and authorized to distrain the cattle of strangers trespassing. No fence having been made, it was held, that the owner of an allotment in B. could not distrain cattle which had strayed into his allotment from a common in W. in pursuance of an alleged right of common pur cause de vicinage in the inhabitants of W. (Wells v. Pearcy, 1 Bing. N. R. 556). It was questioned whether a notice in fact to the commissioners in W. (without inclosure), that all the rights of common in B. were extinguished, would put an end to the legal excuse of trespasses pur cause de vicinage (Ib.) It was admitted, that when there is a common pur cause de vicinage between two wastes, and one of them is under a private act of parliament conveyed to allottees, for the purpose of being inclosed, and the commissioners under