II. Thus far of the remedies for subtraction of rents or other services due by tenure. There are also other services, due by ancient custom and prescription only. Such is that of doing suit to another's mill where the persons, resident in a particular place, by usage time out of mind have been accustomed to grind their corn at a certain mill; and afterwards any of them go to another mill, and withdraw their suit, their secta, a sequendo, from the ancient mill. This is not only a damage, but an injury to the owner; because this prescription might have a very reasonable foundation; viz., upon the erection of such mill by the ancestors of the owner for the convenience of the inhabitants, on condition, that when erected, they should all grind their corn there only. For this injury the owner formerly had a writ de sectâ ad molendinum, commanding the defendant to do his suit at that mill, quam ad illud facere debet, et solet, or show good cause to the contrary: in which action the validity of the prescription might be tried, and if it were found for the owner, he recovered damages against the defendant. In like manner, and for like reasons, a man might have had a writ of secta ad furnum, secta ad torrale, et ad omnia alia hujusmodi; for suit due to his furnum, his public oven or bakehouse: or to his torrale, his kiln or malthouse; when a person's ancestors had erected a convenience of that sort for the benefit of the neighbourhood, upon an agreement, proved by immemorial custom, that all the inhabitants should use and resort to it when erected. But these special remedies for subtractions, to compel the specific performance of services due by custom, 'or prescription, have been abolished; and the only mode of redress which can now be resorted to, is the universal remedy of' an action to repair the party injured in damages. And thus much for the injury of subtraction.

208

CHAPTER XVI.

OF DISTURBANCE.

THE sixth and last species of real injuries is that of disturbance ; which is usually a wrong done to some incorporeal hereditament, by hindering or disquieting the owners in their regular and lawful enjoyment of it. I shall consider five sorts of this injury; viz., 1. Disturbance of franchise. 2. Disturbance of common. 3. Disturbance of ways. 4. Disturbance of tenure. 5. Disturbance of patronage.

I. Disturbance of franchise happens when a man has the franchise of holding a court-leet, of keeping a fair or market, of freewarren, of taking toll, of seizing waifs or estrays, or, in short, any other species of franchise whatsoever; and he is disturbed or incommoded in the lawful exercise thereof. As if another, by distress, menaces, or persuasions, prevails upon the suitors not to appear at my court; or obstructs the passage to my fair or market; or hunts in my free-warren; or refuses to pay me the accustomed toll; or hinders me from seizing the waif or estray, whereby it escapes or is carried out of my liberty; in every case of this kind, all which it is impossible here to recite or suggest, there is an injury done to the legal owner; his property is damnified, and the profits arising from such his franchise are diminished. To remedy which, as the law has given no other writ, he is therefore entitled to sue for damages by an action; or, in case of toll, may take a distress if he pleases.

a

II. The disturbance of common comes next to be considered; where any act is done, by which the right of another to his common is incommoded or diminished. This may happen, in the first place, where one who has no right of common, puts his cattle upon the land; and thereby robs the cattle of the commoners of their respective shares of the pasture. Or, if one, who has a right Mayor of Macclesfield v. Pedley, 4 B. & Ad. 337.

a

of common, puts in cattle which are not commonable, as hogs and goats; which amounts to the same inconvenience. But the lord of the soil may, by custom or prescription, but not without, put a stranger's cattle into the common; and also, by a like prescription for common appurtenant, cattle that are not commonable may be put into the common. The lord also of the soil may justify making burrows therein, and putting in rabbits, so as they do not increase to so large a number as totally to destroy the common. But in general, in case the beasts of a stranger, or the uncommonable cattle of a commoner, be found upon the land, the lord or any of the commoners may either distrain them damage-feasant; or bring an action to recover damages for the entry and trespass committed.b

Another disturbance of common is by surcharging it; or putting more cattle therein than the pasture and herbage will sustain, or the party has a right to do. In this case he that surcharges does an injury to the rest of the owners, by depriving them of their respective portions, or at least contracting them into a smaller compass. This injury by surcharging can properly speaking only happen, where the common is appendant or appurtenant, and of course limitable by law; or where, when, in gross, it is expressly limited and certain; 'and' the usual remedies are either by distraining so many of the beasts as are above the number allowed, or else by an action of trespass, both which may be had by the lord; or lastly, by an action for damages; in which any commoner may be plaintiff.e

There is yet another disturbance of common, when the owner of the land, or other person, so encloses or otherwise obstructs it, that the commoner is precluded from enjoying the benefit to which

b Wells v. Watling, 2 W. Bl. 1233; Pindar v. Wadsworth, 2 East, 154.

'Sir W. Blackstone adds,' for where a man has common in gross, sans nombre or without stint, he cannot be a surcharger. 'But a common without stint, if it ever had, has no longer any legal existence.'

d The ancient method of proceeding was by writ of admeasurement of pasture, which was one of those writs called vicontiel, being directed to the sheriff, vicecomiti, and not to be returned to any

VOL. III.

superior court, till executed by him. It recited a complaint, that the defendant had surcharged, superoneravit, the common; and therefore commanded the sheriff to admeasure and apportion it; that the defendant might not have more than belonged to him, and that the plaintiff might have his rightful share. This writ was abolished by stat. 3 & 4 Will. IV. c. 27, s. 36.

Atkinson v. Teasdale, 2 W. Bl. 817.

P

6

he is by law entitled. Thus, if the lord erect a wall, hedge, or fence round the common, so as to prevent the commoner's cattle from going into it, the commoner may abate the enclosure because it is inconsistent with the grant. And disturbance may be done, not only by erecting fences, but also by driving the cattle off the land, or by ploughing up the soil of the common. Or it may be done by erecting a warren therein, and stocking it with rabbits in such quantities, that they devour the whole herbage, and thereby destroy the common. For in such case, though the commoner may not destroy the rabbits, yet the law looks upon this as an injurious disturbance of his right, and has given him his remedy by action against the owner. There is, indeed, in this case no remedy but by action, for the commoner cannot fill up the cony burrows, as that would be meddling with the soil, and itself a trespass. Formerly' this kind of disturbance amounted to a disseisin, and if the commoner chose to consider it in that light, the law gave him an assize of novel-disseisin against the lord, to recover the possession of his common. Or it gave a writ of quod permittat against any stranger, as well as the owner of the land, in case of such a disturbance to the plaintiff as amounted to a total deprivation of his common, whereby the defendant was compelled to permit the plaintiff to enjoy his common as he ought. But if the commoner did not choose to bring a real action to recover seisin, or to try the right, he might, which was always the easier and more usual way, bring an action for his damages, instead of an assize or a quod permittat; and these real actions being now both abolished, the easier and more usual has now become the only remedy.'

There are cases, indeed, in which the lord may enclose and abridge the common; for which, as they are no injury to any one, so no one is entitled to any remedy. For it is provided by the statute of Merton, 20 Hen. III. c. 4, that the lord may approve, that is, enclose and convert to the uses of husbandry, which is a melioration or improvement, any waste grounds, woods, or pastures, in which his tenants have common appendant to their estates; provided he leaves sufficient common to his tenants, according to the proportion of their land. And this is extremely reasonable; for it would be very hard if the lord, whose ancestors granted out these estates to which the commons are appendant, should be Arlett v. Ellis, 7 B. & C. 346. * Cooper v. Marshal, 1 Burr. 259.

precluded from making what advantage he can of the rest of his manor; provided such advantage and improvement be no way derogatory from the former grants. The statute Westm. 2, 13 Edw. I. c. 46, extends this liberty of approving, in like manner, against all others that have common appurtenant, or in gross, as well as against the tenants of the lord, who have their common appendant; and farther enacts, that no assize of novel-disseisin, for common, shall lie against a lord for erecting on the common any windmill, sheep-house, or other necessary buildings therein specified: which, Sir Edward Coke says," are only put as examples; and that any other necessary improvements may be made by the lord, though in reality they abridge the common, and make it less sufficient for the commoners. By statute 29 Geo. II. c. 36, and 31 Geo. II. c. 41, it is particularly enacted that any lords of wastes and commons, with the consent of the major part, in number and value, of the commoners, may enclose any part thereof, for the growth of timber and underwood; and by statute 13 Geo. III. c. 81, the lord, with the consent of three-fourths of the commoners, may lease any part, not exceeding a twelfth, of the wastes and commons of a manor, and apply the rent in draining, fencing, or otherwise improving the residue. There were many difficulties, some risk, and considerable expense in acting upon these statutes, which led to enclosures being effected under private acts of parliament; the result being that ultimately, by the General Inclosure Acts, the provisions usually inserted in such privilegia were consolidated, and the obtaining of enclosures thereby much facilitated.'

III. The third species of disturbance, that of ways, is very similar in its nature to the last: it principally happening when a person who has a right to a way over another's grounds, by grant or prescription, is obstructed by enclosures, or other obstacles, or by ploughing across it; by which means he cannot enjoy his right of way, or at least cannot in so commodious a manner as he might have done. If this be a way annexed to his estate, and the obstruction is made by the tenant of the land, this brings it to another species of injury; for it is then a nuisance, for which an action will lie, as mentioned in a former chapter. But if the right of way, thus obstructed by the tenant, be only in gross, that is, annexed to a man's person and unconnected with any lands or tenements, or if the obstruction of a way belonging to a house or

h 2 Inst. 476.