might abate the hedges; for thereby he did not meddle with the soil, but only pulled down the erection. of Common. 2 Inst. 85. 59. By the common law, the lord of a manor could Approvement not appropriate to himself, by inclosure or otherwise, any part of his wastes, in which his tenants enjoyed a right of common; because the common issued out of the whole and every part thereof. This inconvenience produced an article in the Statute of Merton, 20 Hen. 3. c. 4. by which it was enacted that when any of the tenants of a manor brought an assise of novel disseisin for their common of pasture, and it was therein recognised by the justices that they had as much pasture as sufficed to their tenements, together with free egress and regress from their tenements unto the pasture, they should be contented therewith; and they of whom it was complained should go quit of as much as they had made their profit of their lands, wastes, woods, and pastures. If they alleged that they had not sufficient pasture, or sufficient ingress and egress, according to their hold, the truth thereof was to be enquired into by the assise; if it was found as alleged, they were to recover their seisin by view of the inquest, and the disseisors were to be amerced as in other cases. 60. This statute extended only to common appendant: 2 Inst. 473. but by the statute of Westminster 2. c. 46. it was enacted that the Statute of Merton should bind neighbours, and such as claimed common of pasture, appurtenant to their tenements; but not such as claimed common by special grant or feoffment for a certain number, or otherwise. And Lord Coke observes that the word vicinus in this act is taken for a neighbour, though he 1.474. dwell in another town, so as the towns and commons be adjoining to each other. And if the lord has common in the tenant's ground, the tenant may approve within this act, for there the lord is vicinus. 61. The statute of Westminster 2. also provides that, by occasion of windmills, sheepcotes, dairies, enlarging of a court, necessary curtilage, none shall be 2 Inst. 476. Idem. Nevill v. Hammerton, Sid. 79. 2 Inst. 87. Grant v. Gunner, 1 Taunt. 435. Duberly v. R. 39. grieved by assise of novel disseisin for common of pasture. And Lord Coke says, there were five kinds of improvement expressed, that, both between lord and tenant, and neighbour and neighbour, may be done without leaving sufficient common to them that have it; any thing either herein or in the statute of Merton to the contrary notwithstanding. And these five are put but for examples; for the lord may erect a house for the dwelling of a beast-keeper; and yet it is not within the letter of the law. 62. Lord Coke also observes on the words, necessary curtilage, that they shall not be taken according to the quantity of freehold the lord has there, but according to his person, estate, or degree, and for his necessary "dwelling and abode; for if he have no freehold in that town, but his house only, yet may he make a necessary enlargement of his curtilage. 63. In a subsequent case it was held that the lord cannot by the Statute of Merton erect a house, unless it be for his own habitation or that of his shepherd; and he must allege that he built it for one of these purposes: otherwise he might build a great house to let to a nobleman, which might require a greater curtilage than the lord's or his herdsman's. 64. The words of the Statute of Merton are, pastura et communia pastura; so that it does not extend to common of turbary, estovers, piscary, or the like. And Page, 2 Term in a modern case it was held, that the lord of a manor has no right, under the Statute of Merton, to inclose and approve the wastes of a manor, where the tenants have a right to dig gravel on the waste, or to take estovers there. Anon. 4. 65. By the statute 3 & 4 Ed. 6. c. 3. the statutes of Merton and Westminster are confirmed; and it is further enacted that where judgment is given for the plaintiffs, in an assise, upon any branch of these statutes, the Court shall award treble damages. 66. It was formerly doubted whether, in the case of a common appurtenant without number, the lord might approve for not being admeasureable, it was not approveable, because the common being without number, sufficiency could not be proved. Dyer and Manwood held, that although the common were without number, yet it might be reduced to a certainty, being by prescription as the number of cattle which the best and most substantial tenant of the said tenement, at any time within the memory of man, had kept upon the waste; and then the lord might approve, leaving sufficient common according to such rate. Smith v. How, 67. In the case of common because of vicinage, one 1 Inst. 122. a. may inclose against the other; and in 27 Eliz. it was resolved, where two lords of two several manors, had Rep. 38. &. two wastes, adjoining parcels of their manors, without inclosure, but the bounds of each were well known, in which wastes the tenants of each manor had reciprocally common because of vicinage, that one might inclose against the other. Strickland, 68. It is laid down by Lord Chief Justice Willes, Fawcett v. and the other judges of the Court of Common Pleas, Com. Rep. 577. that although a lord of a manor cannot, by virtue of 6 Term R. 747. the statute of Merton, inclose and improve against common of turbary; yet that where there is common of pasture and common of turbary in the same waste, the common of turbary will not hinder the lord from inclosing against the common of pasture; for they are two distinct rights. 69. Although the custom of a manor authorizes 2 Term Rep. the commoners to inclose a part of the waste, under 391, 392. n. certain circumstances, yet this does not take away the lord's right of approving, under the statute of Merton; provided he leave sufficient common for the tenants. 70. In a modern case, the Court of King's Bench Clarkson v. held that a custom, authorizing the owners of ancient Term R. 412 n. messuages within a manor, to have certain portions of the common called moss dales assigned to them in Folk hard v. severalty, for digging turves, and after clearing them of turves, to approve them, and hold them in severalty, discharged from all right of common, was good in law. 71. In another modern case it was held by the Term R. 417. n. same Court, that the lord may, with the consent of Shakespear v. Grant v. Ganner, 1 Taunt. 435. Glover v. Lane, 3 Term R. 445. Weekes v. Slake, 2 Vern. 301. the homage, grant part of the soil of the common for building, if such a right has been immemorially exercised. 72. Where commoners have some other right on the common beside that of pasture, as of digging sand, &c. the lord may notwithstanding approve, if he leave sufficient common of pasture; and if such inclosure be no interruption to the enjoyment of the other kind of comIt was, however, laid down in a modern case, that there can be no approver in derogation of a right of common turbary. mon. 73. Although the statutes of Merton and Westminster speak of the lords of manors, as the only persons enabled to approve of commons, yet it has been held, in a modern case, that any person who is seised in fee of a waste within a manor, may approve, leaving a sufficiency of common; for otherwise not half the wastes in the kingdom could be approved; as many of the places that are called manors, would not be found such in point of law, if the matter were strictly examined. And Lord Kenyon observed, that though in the statutes of Merton and Westminster 2, only the lord is mentioned, yet in those days there was a paucity of expression in acts of parliament; for the lord of the manor is put as the owner of the soil, where they stand in the same predicament. And a contrary decision would be ruinous indeed, and extremely prejudicial to the public. 74. The Court of Chancery will assist and protect a lord of a manor in approving a common under the statute of Merton. 75. There having been an inclosure made out of a common, with 76. The lord of a manor having inclosed part of a common, and the tenants by force throwing open the inclosures, brought his bill to quiet him in possession; surmising he had only improved according to the statute of Merton, and had left a sufficiency of common; but that some of the defendants, although they pretended to have a right, were not entitled to inter-common upon the waste in question. Upon the hearing, two issues were directed to be tried at law:-1. As to some of the defendants, whether they had a right of common. 2. Whether there was sufficient common left, beyond what was inclosed. But the injunction was continued in the mean time, although it was a new inclosure, and made not above two years before the bill exhibited. Arthington v. Tawkes, 2 5 Vin. Ab. 7. 77. Upon a bill brought in Chancery by the tenants —v. Palmer, of a manor, against the lessee of the lord, to establish their right of common of pasture, and for an injunction against the defendant, for enclosing part of the common, Lord King, assisted by Sir Joseph Jekyll, denied the motion; for, by the statute of Merton, the lord might inclose part of the waste, leaving sufficient common. That at common law, in an action brought against the lord, the tenant must allege in the declaration, that there is not sufficient common left, or he cannot maintain the action: and if that should be the case, the tenants might have their remedy at common law; and it was too soon for an injunction before answer. Commons. 78. The approvement of commons having been Inclosure of found to be extremely beneficial to the public, by |