Common.

the act extinguish all rights of common on such one waste, these pro- Of Rights of ceedings do not of themselves put an end to the common pur cause de vicinage (Clarke v. Tinker, 10 Q. B. 604).

Common in gross is such a right of common as is neither appendant nor Common in appurtenant to land, but is annexed to a man's person, being granted to gross. him and his heirs by deed; or it may be claimed by prescriptive right, as by a parson of a church, or the like corporation sole. It is a separate inheritance, entirely distinct from landed property, and may be vested in one who has no land in the manor (Co. Litt. 122 a; 2 Bl. Comm. 34). Common appurtenant for a certain number of cattle may be converted into common in gross (Cro. Jac. 15; 5 Taunt. 244). If A. and all those whose estate he has in the manor of D. have had from time immemorial a fold course, that is, common of pasture for any number of sheep not exceeding 300, in a certain field, as appurtenant to the manor, he may grant over to another this fold course, and so make it in gross (1 Roll. Abr. 402, pl. 3; Day v. Spooner, Cro. Car. 432; Sir W. Jones, 375; 3 Wms. Saund. 327, n.) A right of common in gross sans nombre, in the latitude in which it was formerly understood, cannot exist (1 Saund. 346; 1 Ld. Raym. 407; Willes, 232; 8 T. R. 396), and it can have no rational meaning but in contradistinction to stinted common, where a man has a right only to put on a particular number of cattle (Bennett v. Reeve, Willes, 232). A right of common in gross does not confer a vote for the coroner of a county (R. v. Day, 3 Ell. & Bl. 859).

A corporation may prescribe for common in gross for cattle levant and couchant within the town, but not for common in gross sans nombre (Mellor v. Spateman, 1 Saund. 343; Clarkson v. Woodhouse, 5 T. R. 412, n.; Johnson v. Barnes, L. R. 8 C. P. 527). Where, before the passing of 5 & 6 Will. 4, c. 76, all freemen inhabiting within an ancient borough claimed right of common on certain lands, and that act (sect. 7) has extended the limits of the borough, the right of common can no longer be described in pleading to be a right "in all freemen inhabiting within the borough"; for that act only reserves the right to those who reside within the old limits, and does not make the newly-defined borough the same to all intents and purposes as the old one (Beadsworth v. Torkington, 1 Q. B. 782; Hulls v. Estcourt, 2 New Rep. 131). See a plea of common by a burgess under a grant to a corporation, Parry v. Thomas, 5 Exch. 37.

The stat. 2 & 3 Vict. c. 62, s. 13, provides the mode in which Lammas lands and a right of common in gross are to be charged with rent-charges, in lieu of tithes, under the acts for the commutation of tithes in England and Wales.

Common of turbary is a right to dig turf upon another's land, or upon Common of the lord's waste. This kind of common can only be appurtenant to a turbary. house, not to land; for turves are to be burnt in a house; nor can it extend to a right to dig turf for sale (Valentine v. Penny, Noy, 145; see Hayward v. Cannington, 1 Lev. 231; 1 Sid. 354). An ancient right of turbary can only exist as being a right in respect of an ancient dwellinghouse or building, or at the most, for the house which supplies the place of that house (Warrick v. Queen's College, 6 Ch. 730). In an action of trespass the user of this right of common was held to extend to all parts of a common fit for the production of fuel, but not to a rock (Peardon v. Underhill, 16 Q. B. 120). A custom for all the customary tenants of a manor, having gardens, to dig turf on the waste, for making grass plots, at all times of the year, and as often and in such quantity as occasion required, is bad in law, as being indefinite, uncertain, and destructive of the common (Wilson v. Willes, 7 East, 121, recognized in Salisbury v. Gladstone, 9 H. L. C. 692, post, p. 39; see Peppin v. Shakespear, 6 T. R. 748). Common of turbary, appurtenant to a house, will pass by a grant or demise of such house with the appurtenances (Solme v. Bullock, 3 Levinz, 165; Dobbyn v. Somers, 13 Ir. C. L. R. 293). There is nothing in law to prevent a party dealing with his own land and demising it, from annexing to the land or granting to the lessee a right to take turbary upon other lands of the landlord, to be consumed upon houses to be sub

Of Rights of sequently built upon the premises (Hill v. Barry, Hay & J. 688; Duggan v. Carey, 8 Ir. C. L. R. 210). The right of turbary is apportionable (Hargrove v. Congleton, 12 Ir. C. L. R. 368).

Common.

Common of estovers.

Common of estovers, or estouviers, that is, necessaries (from estover, to furnish), is a liberty of taking necessary wood for the use or furniture of a house or farm from off another's estate. The Saxon word bote is used by us as synonymous to the French estovers: and therefore house-bote is a sufficient allowance of wood to repair or to burn in the house; which latter is sometimes called fire-bote; plough-bote, and cart-bote, are wood to be employed in making and repairing all instruments of husbandry; and hay-bote or hedge-bote, is wood for repairing hedges or fences, as pales, stiles, and gates, to secure inclosures. These botes or estovers must be reasonable ones: and such any tenant or lessee, except a strict tenant at will, may take off the land let or demised to him, without waiting for any leave, assignment, or appointment of the lessor, unless he be restrained by special covenant to the contrary (Co. Litt. 41; 2 Bl. Com. 35). A person having common of estovers in a certain wood of another, by view and delivery of the owner's bailiff, by taking estovers without such view and delivery is a trespasser, though he takes less than he was entitled to (5 Rep. 25 a). The rule is founded on the obligation upon tenants of making necessary repairs (De Salis v. Crossan, 1 Ball & B. 188). Where no wood exists, and where part of the premises demised are bog, from which no other beneficial use can arise, a tenant is at the common law in Ireland entitled to use such bog for the purposes of fuel, as he would have been authorized to use wood, had there been any for a like purpose (Howley v. Jebb, 8 Ir. C. L. R. 435). Where tenants abuse their right of estovers, the court will grant an injunction, as if they cut turf for sale (Courtown v. Ward, 1 Sch. & Lef. 8; see Wilson v. Bragg, 8 Bac. Abr. 428, Waste (O)).

Every tenant for life or years has a liberty of this kind of common right in the lands which he holds unless restrained, which is usual by particular covenants or exceptions (2 Bl. Com. 282). The right to estovers may also be appendant or appurtenant to a messuage or dwelling-house by prescription or grant, to be exercised in lands not occupied by the tenant of the house; as if a man grants estovers to another for the repair of a certain house, they become appurtenant to that house; so that whoever afterwards acquires it, shall have such common of estovers. This right may be claimed either by prescription or grant, but (except in the case of copyholders) it cannot be claimed by custom; for, according to a wellknown rule, a custom to take profits in alieno solo is bad (Gateward's case, 6 Rep. 59; Bean v. Bloom, 3 Wils. 456; 2 Sir W. Black. 926; Grimstead Marlowe, 4 T. R. 717; Selby v. Robinson, 2 T. R. 758; Hoskins v. Robins, 1 Vent. 123-163; 2 Saund. 320).

V.

A person having common of estovers, either by grant or prescription annexed to his house, may alter the rooms or chambers, or build new chimneys, or add to the house without losing the right, but he cannot use any of the estovers in the parts newly added (Luttrell's case, 4 Rep. 87 a). Common of estovers can only be claimed by prescription for an ancient house (F. N. B. 180; 4 Co. 86; see, however, Arundel v. Steer, Cro. Jac. 25); but if it be pulled down and another rebuilt, either in the same or another place, the prescription will not be lost (Costard and Wingfield's case, Godb. 97; Cowper v. Andrews, Hob. 39). A person having common of estovers is not entitled to estovers out of timber which the owner of the soil has cut down in part of the wood, but he must take his estovers out of the residue (Cro. Eliz. 820; Cro. Jac. 256). A person having common of estovers appurtenant to a house cannot grant the estovers to another, reserving the house to himself, nor grant the house to another, reserving the estovers to himself; for in either of those cases, the estovers cannot be severed from the house, because they must be spent on the house (Plowd. 381).

The estovers taken must be reasonable, and limited to the wants of the tenement in respect of which a man claims them, upon which therefore

Common.

they must be expended (7 E. 4, 27; 12 E. 4, 8; 8 Rep. 54); and cannot Of Rights of be sold to be used elsewhere (11 H. 6, 11b; Pembroke's case, Clayt. 47). A claim of a prescriptive right to cut down and carry away all the trees and wood growing and being on a certain close, is void as being too large (Bailey v. Stevens, 12 C. B. N. S. 91).

A prescriptive right in an individual to cut and carry away litter from a forest was established in De la Warr v. Miles, 17 Ch. Div. 535. As to Crown grants of the right of lopwood to the inhabitants of a parish, see Willingale v. Maitland, 3 Eq. 103; Rivers v. Adams, 3 Ex. D. 361; and Chilton v. London, 7 Ch. D. 735, ante, p. 24.

A common of fishery is a right of fishing in common with other persons Common of in a stream or river, the soil whereof belongs to a third person. This does piscary. not differ in any respect from any other right of common (Salk. 637); and trespass will not lie for an injury to it. Common of fishery may be claimed by tenants of a manor by custom (Tilbury v. Silva, 45 Ch. Div. 115); but not by inhabitants of a parish (Bland v. Lipscombe, 24 L. J. Q. B. 155 n.; Lloyd v. Jones, 6 C. B. 81); nor by " dwellers" in a manor (Allgood v. Gibson, 34 L. T. 383); the ground being that, independently of manorial rights, a fishery in alieno solo, which is a profit à prendre, must be claimed not by custom but by prescription (Bland v. Lipscombe, sup.); and a large and indefinite class cannot prescribe (Tilbury v. Silva, sup.) A grant of a "free fishery" is primâ fucie a grant of non-exclusive fishery (Bloomfield v. Johnston, L. R. 8 C. L. 68). A "common fishery," as distinguished from a common of fishery," means a fishery extending to all mankind, as in the sea (Benett v. Costar, 8 Taunt. 186).

As to the various kinds of fisheries, the only substantial distinction is Different between an exclusive right of fishery usually called "several," sometimes kinds of "free," used as in "free warren"; and a right in common with others fishery. usually called common of fishery, sometimes " free," used as in "free port" (Per Willes, J., Malcolmson v. O'Dea, 10 H. L. C. 593).

A several fishery is when a person has an exclusive right of fishery Several either in his own soil or in the soil of another (1 Selw. N. P. 751, 13th ed.) fishery. within particular limits (3 Salk. 360; 2 Salk. 637; see Co. Litt. 122 a, n. 7; R. v. Ellis, 1 M. & S. 652). Such a right is, strictly speaking, the proper subject of a grant, but not of an exception or reservation (Doe v. Loch, 2 Ad. & El. 743; Wickham v. Hawker, 7 M. & W. 76; Corker v. Payne, 18 W. R. 436; see Hamilton v. Musgrave, 19 W. R. 443).

A several fishery cannot be appurtenant to a several pasture (Edgar v. Fishery Commissioners, 23 L. T. 732). But a several fishery may be appurtenant to a manor (Rogers v. Allen, 1 Camp. 309). And in such a case will remain in gross if the lands of the manor are conveyed away (Neill v. Devonshire, 8 App. Cas. 153, 169; Devonshire v. Pattinson, 20 Q. B. Div. 263), unless the intention to transfer the fishery appear in the conveyance (Tilbury v. Silva, 45 Ch. Div. 98). A several fishery whether in tidal or non-tidal waters, may exist independently of riparian ownership, and that whether the owner of the fishery be the owner of the soil of the river (Neill v. Devonshire, 8 App. Cas. 153; Devonshire v. Pattinson, sup.; Smith v. Andrews, 1891, 2 Ch. 697), or not (4. G. v. Emerson, 1891, A. C. 654; Miller v. Little, 4 L. R. Ir. 302; Foster v. Wright, 4 C. P. D. 449). A perfect paper title to a several fishery may not be absolutely conclusive if there be evidence of user by others inconsistent therewith (Blount v. Layard, 1891, 2 Ch. 681, n.; Neill v. Devonshire, sup.; Smith v. Andrews, 1891, 2 Ch. 678). As to whether a right to a several fishery can be lost by abandonment, see Neill v. Devonshire, 8 App. Cas. 154, 170. A several fishery may be followed where the water gradually shifts its course (Foster v. Wright, 4 C. P. D. 438; see Miller v. Little, 4 L. R. Ir. 302); but not where it leaves the old course and commences to follow a new course which was always distinguishable from the old (Carlisle v. Graham, L. R. 4 Ex. 361).

A claim to a fishery in gross is not within the Prescription Act (Shuttleworth v. Le Fleming, 19 C. B. N. S. 687; 34 L. J. C. P. 309).

In addition to the above distinction between common of fishery and

Common.

Of Rights of a several fishery, it is important to bear in mind the distinction between (1) non-tidal waters (which include that part of a river in which the water is not salt, and in ordinary tides is unaffected by tidal influence, Reece v. Miller, 8 Q. B. D. 626); and (2) tidal waters.

Non-tidal waters.

Tidal waters.

Ownership of soil.

In the case of a non-tidal river the presumption is that each riparian owner is entitled to a several fishery in the river in front of his land ad medium filum (Blount v. Layard, 1891, 2 Ch. 689, n.) This is so even in the case of a navigable non-tidal river or "king's stream" (Ib.); or of a river flowing through a manor (Lamb v. Newbiggin, 1 C. & K. 549). It seems, however, that the several fishery of a riparian owner may extend over the whole stream (Blount v. Layard, sup. p. 688). As to fishery in a lake, see Bristow v. Cormican, 3 App. Cas. 641; Marshall v. Ulleswater Co., 3 B. & S. 732; Johnson v. Bloomfield, I. R. 8 C. L. 68. As to whether the Crown can grant a right of fishing in a non-tidal river flowing over the soil of a subject, see Devonshire v. Pattinson, 20 Q. B. Div. 263. In non-tidal waters, an individual may acquire a title by prescription to a several fishery (Co. Litt. 122 a; Ventr. 391; see 2 Saund. 326; Peers v. Lacy, 4 Mod. 362), or to a fishing weir (Rolle v. Whyte, L. R. 3 Q. B. 286; Leconfield v. Lonsdale, L. R. 5 C. P. 657). The public cannot have a right to fish in non-tidal waters founded on custom, prescription, or lost grant (Smith v. Andrews, 1891, 2 Ch. 699, and cases there quoted; Blount v. Layard, Ib. 689, n.)

In tidal waters (whether sea or river), the right of fishing is primâ facie in the public (Neill v. Devonshire, 8 App. Cas. 177; Malcolmson v. O'Dea, 10 H. L. C. 618). And this public right extends to shell fish (as oysters), as well as to floating fish (Bagot v. Orr, 2 Bos. & P. 472; Saltash v. Goodman, 7 Q. B. Div. 116). The right to create a several fishery in tidal waters existed in the Crown before Magna Charta, and a several fishery so created could lawfully afterwards be made the subject of a grant by the Crown to an individual (Malcolmson v. O'Dea, sup.; see Neill v. Devonshire, 8 App. Cas. 135). And when the Crown acquired the right to such a fishery by merger since Magna Charta it could re-grant it (Northumberland v. Houghton, L. R. 5 Ex. 127). Long exclusive enjoyment alone may be ground for presuming the grant of such a fishery (Edgar v. Fishery Commissioners, 23 L. T. 732; Mannall v. Fisher, 5 C. B. N. S. 856; Little v. Wingfield, 8 Ir. C. L. R. 279; Beaman v. Kinsella, Ib. 291). So a several fishery in tidal waters has been presumed to have been granted to a corporation subject to a trust (in the nature of a charitable trust) in favour of inhabitants, authorizing them to dredge for oysters within a certain period annually (Goodman v. Saltash, 7 App. Cas. 633). A several fishery was held to have been granted to a corporation in trust for the members thereof (Re Free Fishermen of Faversham, 36 Ch. Div. 329). There may be a several fishery for oysters, the right to take floating fish remaining in the public (Rogers v. Allen, 1 Camp. 29). An individual may claim a several fishery in an arm of the sea by prescription (Orford v. Richardson, 4 T. R. 437; see Ward v. Cresswell, Willes, 265; Crichton v. Collery, 19 W. R. 107). A grant of foreshore would not of itself convey the right to a several fishery over it (A. G. v. Emerson, 1891, A. C. 654). The owner of a several fishery over foreshore, whether owner of the soil or not, can restrain the reclamation of part of the foreshore (Bridges v. Hinton, 11 L. T. 653).

As to the relation of the ownership of a fishery to the ownership of the soil of the bed, it is settled that the owner of a several fishery must be presumed to be the owner of the soil, whether the fishery is in tidal waters (A. G. v. Emerson, 1891, A. C. 649); or in a non-tidal river (Holford v. Bailey, 13 Q. B. 426); or in a lake (Marshall v. Ulleswater Co., 3 B. & S. 732). But the terms of the grant may rebut this presumption (Somerset v. Fogwell, 5 B. & C. 886; see Bloomfield v. Johnston, I. R. 8 C. L. 95, 106; A. G. v. Emerson, 1891, A. C. 655). In the case of a grant of a "free fishery," i.e., a non-exclusive right, the presumption is that the soil does not pass (Bloomfield v. Johnston, sup.) For the ordinary rules as to the ownership of the soil below water, see post, p. 84. And as to when

Common.

the rights of lords of manors depend upon the ownership of the soil, see Of Rights of Grand Union Canal Co. v. Ashby, 6 H. & N. 394; Clarke v. Mercer, 1 F. & F. 492.

As to weirs, see Weld v. Hornby, 7 East, 195.

As to the relief in equity in the case of common of fishery, see post, p. 44. Customs have been established for copyholders to take sand and gravel Customs to from the waste of the manor (Peppin v. Shakespear, 6 T. R. 748; Duberly take sand, v. Page, 2 T. R. 391; see Portland v. Hill, 2 Eq. 765), and loam for the gravel, &c. repair of ancient tenements (Robertson v. Hartopp, 43 Ch. Div. 514). Compare the customs established for copyholders to take clay, &c. without limit from their copyhold tenements (Salisbury v. Gladstone, 9 H. L. C. 692; Hanmer v. Chance, 4 D. J. & S. 626).

As to taking materials for repairing highways from wastes or commons, see 5 & 6 Will. 4, c. 50, s. 51; Rylatt v. Marfleet, 14 M. & W. 233.

The lord may take gravel and loam from the waste, provided he does not infringe the commoners' rights (Hall v. Byron, 4 Ch. D. 667; see Bateson v. Green, 5 T. R. 411; Folkard v. Hemmett, 5 T. R. 417; Hilton v. Granville, 5 Q. B. 730). The onus of showing that such rights are interfered with lies on the commoner (Hall v. Byron, 4 Ch. D. 680; Robertson v. Hartopp, 43 Ch. D. 501).

Prima facie the lord of the manor is entitled to all waste lands within Presumption the manor; and it is not essential that the lord should show acts of that waste ownership of such lands; and evidence that the public have been used to land belongs throw rubbish on waste lands is rather evidence that it belongs to the to lord of lord than to any private individual (Doe v. Williams, 7 C. & P. 332). A manor. right to any part of the waste may, however, be established against the lord by repeated acts of ownership, as by cutting trees, digging turf, and the like (Tyrwhitt v. Wynne, 2 B. & Ald. 554; Barnes v. Mawson, 1 M. & S. 77; Richards v. Peake, 2 B. & C. 918). An encroachment by a copyholder on the waste becomes, at any rate where the lord may by custom grant the waste as copyhold, an accretion to the holding, and a copyhold title is acquired (so held by Fry, J., in A. G. v. Tomline, 5 Ch. D. 750; see, however, S. C. before the C. A., 15 Ch. Div. 150). The lord Grants by the may, with the consent of the homage, grant part of the soil for building, lord. if he has immemorially exercised such right (Folkard v. Hemmett, 5 T. Ř. 417). In like manner there may be a valid custom in a manor within the limits of an ancient forest belonging to the Crown, for the lord with the assent of the homage to grant parcels of the waste to be holden by copy of court roll, and for the grantees to inclose the same, and to hold them in severalty against the commoners, and in exclusion of their rights (Boulcott v. Winmill, 2 Camp. 261; see Northwich v. Stanway, 3 Bos. & P. 346; Lascelles v. Onslow, 2 Q. B. D. 433). But without a custom for the purpose, the lord cannot make a new grant of copyhold (R. v. Hornchurch, 2 B. & Ald. 189; R. v. Wilby, 2 M. & S. 504). Nothing in 4 & 5 Vict. c. 35, empowers the lord to grant waste without the consent of the homage, where such is the custom of the manor (4 & 5 Vict. c. 35, s. 91). A custom for the lord to grant leases of the waste of the manor without restriction is bad in point of law (Badger v. Ford, 3 B. & Ald. 153). A custom to inclose (even as against a common right of turbary), leaving sufficiency of common, is good; but the onus of proving that a sufficiency is left lies on the lord (Arlett v. Ellis, 7 B. & C. 346; see Rogers v. Wynne, 7 D. & R. 521; Betts v. Thompson, 6 Ch. 732; Robertson v. Hartopp, 43 Ch. D. 501).

It is well settled, that encroachments made by a tenant are for the Presumption benefit of the landlord, unless it appears clearly, by some act done at the that entime of the making of the encroachments, that the tenant intended the croachments encroachments for his own benefit, and not to hold them as he held the by tenant farm to which the encroachments were adjacent (Doe v. Rees, 6 C. & P. belong to the 610). This doctrine originated in those cases where the landlord was lord landlord. of the manor, and the tenant encroached upon the waste (2 Ell. & Bl. 353). Where a tenant who holds under the lord of a manor encroaches upon the waste, he is presumed to have approved against the commoners for the