Tit. 33. increasing tillage and agriculture; it was enacted by: the statute 29 Geo. 2. c. 36. s. 1., that it should be lawful for his majesty, his heirs and successors, and all other owners of wastes, woods, and pastures, wherein any persons or bodies politic have right of common of pasture, by and with the assent of the major part in number and value of the owners and occupiers of the tenements to which such right of pasture doth belong; and to and for the major part in number and value of the owners and occupiers of such tenements, by and with the assent of the owner or owners of the said wastes, woods, and pastures; and to or for any other person or persons, or bodies politic, by and with the assent and grant of the owner or owners of such wastes, woods, and pastures, and the major part in number and value of the owners and occupiers of such tenements, to inclose, for the growth and preservation of timber and underwood, any part of such wastes, woods, and pastures. 79. By the statute 31 Geo. 2. c. 41., it is provided, that if any recompence be agreed to be given for such inclosure, it shall be made to the persons interested in the right of common, in proportion to their respective rights, and not to the overseers of the poor, as was directed by the second section of the preceding act. And the powers given to owners by that act may be exercised by tenants for life, or years, during their respective interests; with a proviso, that nothing done by them shall have effect after the determination of their estates. 80. Commons have frequently, in modern times, been entirely inclosed, and allotted to the persons having rights of common, in proportion to the number. of cattle they were entitled to put on the common. But this is usually effected by means of a private act of parliament; of which an account will be given in a subsequent Title. And by the stat. 13 Geo. 3. c. 81. s. 15., lords of manors, with the consent of threefourths of the persons having right of common, are enabled to lease for four years any part of the said commons, not exceeding a twelfth part thereof; and to apply the rent in draining, fencing, or otherwise improving the residue of the said wastes... ment of common. 81. A right to common may be extinguished, 1. By Extinguisha release of it to the owner of the land. 2. By unity of possession of the land. 3. By severance of the right of common. And, 4. By enfranchisement of a copyhold to which a right of common is annexed. 82. Every right of common may be extinguished by I. By release. a release of it to the owner of the soil wherein such Rotheram v. right is exercisable. And as a right to common is en- Eliz. 593. Green, Cro. tire throughout the whole of the land subject to it, if 5 Vin. Ab. 17. the commoner releases any part of the land from his right of common, it will operate as an extinguishment of the right in every other part. possession. 4 Rep. 38 a. 83. Common appendant and appurtenant become II. By unity of extinguished by unity of possession of the land, to which the right of common was annexed, with the land in which the common was; for where a person has as high and perdurable estate in the land as in the common, there the common becomes extinct. 84. In trespass for breaking his close in Abney, the defendant pleaded, that long before, &c., one Bradshaw was seised of the place where, &c. in fee; that one Fuljamb was seised in fee of a house and twenty acres of land in Abney aforesaid; that the said Fuljamb, and all those whose estate, &c. had common in the said place where, &c. and the said Fuljamb enfeoffed of the said tenement the said Bradshaw; that afterwards the said Bradshaw let unto the defendant the said house and twenty acres of land, with all commons, profits, and commodities thereto appertaining, or used with the said messuage; and thereby justified putting in his cattle to use the common, &c. Upon demurrer, it was held clearly that this common was extinguished by the unity of possession, and could Bradshaw v. Nelson's case, 3 Leon. 128. The King v. Anon. Godb. 4. not be revived again. Gawdy, Just. said it was the same of common appendant. 85. Where the abbot of D. was seised of a common out of the abbey of S., as appurtenant to certain lands of the abbey of D.; afterwards both these abbeys were dissolved, and the possessions of both were given to the King, to hold in as ample a manner as the abbots held them. Afterwards, the King granted the lands of one abbey to A., and those of the other abbey to B. It was determined that the words " in as ample a manner, &c." were to be construed according to law, and no further and that the unity of possession of the King had extinguished the common. 86. To constitute such an unity of possession as will extinguish a right of common, the person must have an estate in the lands to which the common is annexed, and in those where the right of common exists; equal in duration, and all other circumstances of right. 87. A right of common was appendant to certain tenements, which were parcel of the abbey of Sarum, in a common that was parcel of the Duchy of Cornwall. Upon the dissolution of the abbey of Sarum, these tenements became vested in King Henry VIII. in fee, in whom the Duchy of Cornwall was ther vested, for want of a Duke of Cornwall. Resolved, by Lord Holt and the rest of the Judges, that this was not such an unity of possession as would destroy, the right of common, because King Henry VIII. had not as perdurable an estate in the one as in the other; for in the Duchy of Cornwall the King had only a fee determinable on the birth of a Duke of Cornwall, which was a base fee; but in the tenements in question he had a pure fee simple, indeterminable, jure corona. 88. A parson had common appendant to his parsonage, in the lands of an abbey; afterwards the abbot had the parsonage appropriated to him and his successors. It was held by Wyndham and Meade contra Dyer, that the abbot had not as perdurable an estate in the one as in the other; for the parsonage might be disappropriated, and then the parson would have the common again. 45. 89. Where the lord approves a part of the waste, Dyer 339. pl. and afterwards one of the commoners purchases the part so approved, this will not extinguish his right of common; because, by the approvement, the land was utterly discharged of common. 90. It has been stated, that where a person having Ante, § 44. common appurtenant, purchases part of the lands, wherein the common is to be had; the whole right of common shall be extinct. It has also been held, 8 Rep. 79 a. that where a person having common appurtenant, takes a lease of part of the land, in which he has such right of common, all his common shall be suspended during the continuance of the lease; because it was the folly of the commoner to intermeddle with the land, over which he had a right of common. 91. Common appendant or appurtenant for cattle levant and couchant may also be extinguished by severance. As where a person having common of this kind annexed to a messuage or tenement, conveys away the messuage or tenement, excepting the common, this will create an extinguishment of the common. 1 ance. III. By sever- 4 O. pl. 1. chisement of Marsham v. Jac. 253. 92. Where a right of common is annexed to a copy- IV. By enfranhold estate, and the lord grants the land to the copy-copyholds. holder and his heirs, cum pertinentiis, the common is Tit. 10. c. 6. extinguished; because it was annexed to the customary Hunter, Cro. estate, which being destroyed, the right of common is Gilb. Ten, 224. gone. And the words cum pertinentiis cannot have the effect of continuing it; because the right of common was not appurtenant to the freehold estate granted by the lord. 93. This doctrine does not appear to be allowed in equity; for where the lord of a manor enfranchised a Styant r. Walker, 6 Mod. 20. Common may be revived. Ante, § 84. Sandys ". Oliff, Sawyer's case, W. Jones 285. copyhold, with all common thereto belonging or ap-. pertaining; afterwards bought in all the copyholds, and then disputed the right of common with the copyholder he had enfranchised, and recovered against him; the Court decreed that he should hold and enjoy the same right of common which belonged to the copyhold. 94. It is said by Lord Holt, that if a copyholder of one manor has common in the wastes of another manor, an enfranchisement of the copyhold does not extinguish the common; for it is a derivative right which the copyholder has. So, if it be taken as appendant to land, enfranchisement will not extinguish it. 95. A right of common, which has been extinguished by unity of possession, may be revived by a new grant. For 96. Thus, in the case of Bradshaw v. Eyre, the Court held that the words of the lease, "all commons, profits, &e. occupied or used with the said messuage, &c." operated as a grant of a new right of common. although it was not common in the purchaser's hands, yet it was quasi common, used therewith; and though not the same common as was used before, yet it was the like common. 97. Where common appurtenant to a messuage was extinguished by unity of possession in the lord's hands; it was held, that a grant by the lord of the messuage, with all common appurtenant, did not pass the common extinct. But that a grant of all commons usually occupied with the said messuage would have passed such common as the first was. r 98. Where a person had common in gross, derived from the abbot of W., which was destroyed by unity of possession in the crown, with the lands in which the common was; and the crown granted the lands to which the common belonged, with the words, Tot, tanta, talia, libertates, privilegia, et franchis, &c. quot, &c. aliquis, &c. Resolved, that being common in gross, |