scription de non decimando (12). But he must shew both these requisites for abbey lands, without a special ground of discharge, are not discharged of course; neither will any prescription de non decimando avail in total discharge of tithes, unless it relates to such abbey lands.

III. COMMON, or right of common, appears from its very definition to be an incorporeal hereditament: being a profit which a man hath in the land of another; as to feed his beasts, to catch fish, to dig turf, to cut wood, or the like. And hence common is chiefly of four sorts; common of pasture, of piscary, of turbary, and of estovers.

1. COMMON of pasture is a right of feeding one's beasts on another's land: for in those waste grounds, which are usually called commons, the property of the soil is generally in the lord of the manor; as in common fields it is in the particular tenants. This kind of common is either appendant, appurtenant, because of vicinage, or in gross b.

COMMON appendant is a right belonging to the owners [33] or occupiers of arable land, to put commonable beasts upon the lord's waste, and upon the lands of other persons within the same manor. Commonable beasts are either beasts of the plough, or such as manure the ground. This is a matter of most universal right: and it 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

a Finch. law. 157.

b Co. Litt. 122.

e 2 Inst. 86.

(12) Posterior usage is evidence of the antecedent, and has always been allowed so in cases of this nature; for what other evidence can be had? Ld. Hardw. 2 Atk. 137.

It has been argued in the court of exchequer, that a grant of the tithes might be presumed from a lay-impropriator; but the court held that there was no distinction between a spiritual and a lay rector, and that no grant could be presumed, which would amount to a prescription de nan decimando. 3 Anstr. 702.

pasture; and pasture could not be had but in the lord's wastes, and on 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; and this was the original of common appendant: which obtains in Sweden, and the other northern kingdoms, much in the same manner as in Englandd. Common appurtenant ariseth from no connection of tenure, nor from any absolute necessity but may be annexed to lands in other lordships, or extend to other beasts, besides such as are generally commonable; as hogs, goats, or the like, which neither plough nor manure the ground. This not arising from any natural propriety or necessity, like common appendant, is therefore not of general right; but can only be claimed by immemorial usage and prescription f, which the law esteems sufficient proof of a special grant or agreement for this purpose. Common because of vicinage, or neighbourhood, is where the inhabitants of two townships, which lie contiguous to each other, have usually intercommoned with one another; the beasts of the one straying mutually into the other's fields, without any molestation from either. This is indeed only a permissive right, intended to excuse what in strictness is a trespass in both, and to prevent a multiplicity of suits and therefore either township may inclose and bar out the other, though they have intercommoned time out of mind. [34] 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 themselves, the law winks at the trespass. Common in gross, or at large, is such as is neither appendant nor appurtenant to land, but is annexed to a man's person; being granted to 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. This is a separate inheritance, entirely distinct from any landed property, and may be vested in one who has not a foot of ground in the manor.

d Stiernh, de jure Suronum, 1. 2. c. 6.

e Cro. Car. 482. 1 Jon. 397.

f Co. Litt. 121, 122.
g Ibid. 122.

:

ALL these species, of pasturable common, may be and usually are limited as to number and time; but there are also commons without stint, and which last all the year (13). By the statute of Merton, however, and other subsequent statutes, the lord of a manor may inclose so much of the waste as he pleases, for tillage or woodground, provided he leaves common sufficient for such as are entitled thereto. This inclosure, when justifiable, is called in law, "approving:"an ancient expression signifying the same as "improvingi (14).” The lord hath the sole interest in the soil; but the interest of the lord and commoner, in the common, are looked upon in law

h 20 Hen. III. c. 4. 29 Geo. II. c. 36. and 31 Geo. II. c. 41.

i 2 Inst. 474.

(13) A person, who has a house, but no land annexed to it, cannot claim a right of common for cattle levant and couchant; for no levancy and couchancy in such a case can be proved, for they imply the possession of so much land as will support the cattle, for which the right of common is claimed, during the winter; for such cattle only are levant and couchant as the land will maintain throughout the winter. 5 T. R. 46. 2 Woodd. 77.

(14) Any person, who is seised in fee of part of a waste, may approve, besides the lord of the manor, provided he leaves a sufficiency of common for the tenants of the manor. 4 T. R. 445.

It seemed to have been generally understood that the lord could not approve, where the commoners had a right of turbary, piscary, of digging sand, or of taking any species of estovers upon the common. 2 T. R. 391. But it is now decided agreeably to the general principles of the subject, that where the tenants have such rights, they will not hinder the lord from inclosing against the common of pasture, if sufficient be left, for this is a right quite distinct from the others; but if by such inclosure the tenants are interrupted in the enjoyment of their rights of turbary, piscary, &c. then the lord cannot justify the approvement in prejudice of these rights. Shakespear v. Peppin, 6 T. R. 741. The right of the commoners to the pasturage may be subservient to the right of the lord; for if the lord has immemorially built houses or dug clay-pits upon the common without any regard to the extent of the herbage, the immemorial exercise of such acts is evidence that the lord reserved that right to himself, when he granted the right of pasturage to the commoners. 5 T. R. 411. If a lord of a manor plant trees upon the common, a commoner has no right to cut them down. His remedy is only by an action. 6 T. R. 483. Bas. 14.

as mutual. They may both bring actions for damage done, either against strangers, or each other; the lord for the public injury, and each commoner for his private damage k.

2, 3. COMMON of piscary is a liberty of fishing in another man's water; as common of turbary is a liberty of digging turf upon another's ground1. There is also a common of digging for coals, minerals, stones, and the like. All these bear a resemblance to common of pasture in many respects; though in one point they go much farther; common of pasture being only a right of feeding on the herbage and vesture of the soil, which renews annually; but common of turbary, and those aforementioned, are a right of carrying away the very soil itself.

[35]

4. COMMON of estovers or estouviers, that is, necessaries, (from estoffer, 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 firebote; plough-bote and cart-bote are wood to be employed in making and repairing all instruments of husbandry and hay-bote or edge-bote is wood for repairing of hays, hedges, or fences. These botes or estovers must be reasonable ones; and such any tenant or lessee 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

m.

THESE Several species of commons do all originally result from the same necessity as common of pasture; viz. for the maintenance and carrying on of husbandry: common of piscary being given for the sustenance of the tenant's family; common of turbary and fire-bote for his fuel; and housebote, plough-bote, cart-bote, and hedge-bote, for repairing his house, his instruments of tillage, and the necessary fences of his grounds.

k 9 Rep. 113.

I Co. Litt, 122.

m Co. Litt. 41

IV. A FOURTH species of incorporeal hereditaments is that of ways; or the right of going over another man's ground. I speak not here of the king's highways, which lead from town to town; nor yet of common ways, leading from a village into the fields; but of private ways, in which a particular man may have an interest and a right, though another be owner of the soil. This may be grounded on a special permission; as when the owner of the land grants to another a liberty of passing over his grounds, to go to church, to market, or the like: in which case the gift or grant is particular, and confined to the grantee alone; it dies with the person; and, if [36] the grantee leaves the country, he cannot assign over his right to any other; nor can he justify taking another person in his company". A way may be also by prescription; as if all the inhabitants of such a hamlet, or all the owners and occupiers of such a farm, have immemorially used to cross such a ground, for such a particular purpose: for this immemorial usage supposes an original grant, whereby a right of way thus appurtenant to land or houses may clearly be created. A right of way may also arise by act and operation of law for, if a man grants me a piece of ground in the middle of his field, he at the same time tacitly and impliedly gives me a way to come at it; and I may cross his land for that purpose without trespass. For when the law doth give any thing to one, it giveth impliedly whatsoever is necessary for enjoying the same P. By the law of the twelve tables at Rome, where a man had the right of way over another's land, and the road was out of repair, he who had the right of way might go over any part of the land he pleased: which was the established rule in public as well as private ways. And the law of England, in both cases, seems to correspond with the Roman 9 (15).

n Finch. law. 31. o Ibid. 63.

p Co. Litt. 56.

q Lord Raym. 725. 1 Brownl. 212. 2 Show. 28. 1 Jon. 297.

(15) Lord Mansfield took notice of the inaccuracy of this passage, in the case of Taylor v. Whitehead, Doug. 716. in which it was determined, that if a man has a right of way over another's land, unless the owner of the land is bound by prescription or his own grant to repair