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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.(h)
[*34 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.22 This is a separate inheritance, entirely distinct from any landed property, and may be vested in one who has not å foot of ground in the manor. 33
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. By the statute of Merton, however, and other subsequent statutes,(i) the lord of the manor may enclose so much of the waste as he pleases for tillage or woodground, provided he leaves common sufficient for such as are entitled thereto. This enclosure, when justifiable, is called in law "approving," an ancient expression signifying the same as “improving." ()2 The lord hath the (*) Ibid. 122. ) 20 Hen. III. C. 4. 29 Geo. II. c. 36, and 31 Geo. II. C. 41.
2 Inst 474.
Levancy and couchancy is not essential. 5 Taunt. 244. A right of common in gross, as the going of two head of cattle on a common," is a tenement within the statute 13 & 14 Car. II., and a precipe will lie for it; and therefore a person renting such a right of the annual value of 101. thereby gains a settlement. 7 T. R. 671. 2 Nol. Pl. ch. 23, 6. 2. As to cattle-gates, (which are common in the north,) they are not like common of pasture, for they are conveyed by lease and release, and must be devised according to the statute of frauds. The owners of them have a joint possession and a several inheritance. They have an interest in the soil itself, and a cattle-gate is a tenement within the 13 & 14 Car. II. c. 12, for the purpose of gaining a settlement. 1 T. R. 137. An ejectment will lie for a beast-gate in Suffolk, (signifying land and common for one beast) (2 Stra. 1804,) and so for a cattle-gate. 2 T. R. 452. 2 Stra. 1804. Rep. T. Hardw. 167. Sel. N. P. Ejectment, 3, note 8.
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 three hundred, in a certain field as appurtenant to the manor, he may grant over to another this fold-course, and so make it in gross, because the common is for a certain number, and by the prescription the sheep are to be levant and couchant on the manor. 1 Roll. Abr. 402, pl. 3. Cro. Car. 432. Sir W. Jones, 375.—CAITTY.
z3 Common appendant and appurtenant are limited as to the number of cattle either to an express number, or by levancy and couchancy, sometimes termed common without number. Willes, 232. By common without number is not meant common for any number of beasts which the commoner shall think fit to put into the common, but it is limited to his own commonable cattle levant and couchant upon his land, (by which is to be understood as many cattle as the produce of the land of the commoner in the summer and autumn can keep and maintain in the winter.) And, as it is uncertain how many in number these may be, there being in some years more than in others, it is therefore called common without number, as contradistinguished from common limited to a certain number; but still is a common certain in its nature. 2 Brownl. 101. 1 Vent. 54. 5 T. R. 48. i Bar. & Ald. 706. Rogers vs. Benstead, Selw. Ni. Pri. tit. Common. There fore a plea, prescribing for common appurtenant to land for commonable cattle, without saying levant and couchant, is bad, (1 Saund. 28, b.; id. 343 ;) for it shall be intended common without number, according to the strict import of the words, without any limitation whatsoever; for there is nothing to limit it when it is not said for cattle levant and couchant. 1 Roll. Abr. 398, pl. 3. Hard. 117, 118. 2 Saund. 346, note 1. 8 Term Rep. 396. From hence it follows that where the common is limited to a certain number it is not necessary to aver that they were levant and couchant, (1 Roll. Abr, 401, pl. 3. Cro. Jac. 27. 2 Mod. 185. 1 Lord Raym. 726 ;) because it is no prejudice to the owner of the Eoil, as the number is ascertained.-Cutty.
24 The notion of this species of common is exploded. A right of common without stint cannot exist in law. Bennet vs. Reeve, Willes, 232. 8 T. R. 396.-Chitty.
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, but not otherwise, without consent of homage. 1 Stark. 102. 3 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 VOL. L-27
sole interest in the soil; but the interest of the lord and commoner, in the common, are looked upon in law 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 ground.(1) 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 further; 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.
*4. Common of éstovers or estouviers,28 that is, necessaries, (from estoffer, to furnish,) is a liberty of taking necessary wood, for the use or furniture
(*) 9 Rep. 113.
(° Co. Litt. 122.
hinder the lord from enclosing against the common of pasture, if sufficient be left, for this is a right quite distinct from the others; but if by such enclosure the tenants are interrupted in the enjoyme of their rights of turbary, piscary, &c., then the lord cannot justify the approvement in prejudice of these rights." 6 T. R. 741. Willes, 57. 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 act 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 a common, a commoner has no right to cut them down. His remedy is only by an action. 6 T. R. 483. -Christian.
26 Common appurtenant or appendant can be apportioned. But the land which gives a right of common to the owner shall not be so alienated as to increase the charge or burden on the land out of which common is to be taken. Therefore if the owner of the land entitled to common purchase a part of the land subject to common, the common shall be extinct; and vice versa. Where the right is extinguished or gone as to a portion of the land entitled to common, it is extinct as to the whole; for in such case common appurtenant cannot be extinct in part, and be in esse for part, by the act of the parties. Livingston vs. Ten Broeck, 16 Johns. 14.-SHARSWOOD.
» Common of turbary can only be appendant or appurtenant to a house, not to lands, (Tyringham's case, 4 Řep. 37;) and the turf cut for fuel must be burned in the commoner's house, (Dean and Chapter of Ely vs. Warren, 3 Atk. 189,) not sold. Valentine vs. Penny, Noy, 145. So, it seems, an alleged custom for the tenants of the manor to be entitled to cut and carry away from the wastes therein an indefinite quantity of turf, covered with grass, fit for the pasturage of cattle, for the purpose of making and repairing grass-plots in their gardens, or other improvements and repairs of their customary tenements, cannot be supported. Wilson vs. Willes, 7 East, 127.–Chitty.
28 The liberty which every tenant for life or years has, of common right, to take necessary estovers in the lands which he holds for such estate, seems to be confounded, in most of the text-books, with right of common of estovers. Yet they appear to be essentially different. The privilege of the tenant for life or years is an exclusive privilege, not a commonable right. Right of common of estovers seems properly to mean a right appendant or appurtenant to a messuage or tenement, to be exercised in lands not occupied by the holder of the tenement. Such a right may either be prescriptive, or it may arise from modern grant. Countess of Arundel vs. Steere, Cro. Jac. 25. And though the grant be made to an individual for the repairs of his house, the right is not a personal one, but appurtenant to the house. Dean and Chapter of Windsor's case, 5 Rep. 25. Sir Henry Nevill's case, Plowd. 381. Such a grant is not destroyed by any alteration of the house to which the estovers are appurtenant, but it may be restricted within the limits originally intended, if the altered state of the premises would create a consumption of estovers greater than that contemplated when the grant was made. Luttrel's case, 4 Rep. 87.
If a right of common of estovers of wood be granted, to be taken in a certain wood, the owner of which cuts down some of the wood, the grantee cannot take the wood so cut: even if the whole be cut down, he has no remedy but an action of covenant or on the case. Basset vs. Maynard, Cro. Eliz. 820. Pomfret vs. Ricroft, 1 Saund. 322. Douglass vs. Kendal, Cro. Jac. 256; S. C. Yelv. 187; which last case illustrates the distinction between the exclusive right to the wood growing on certain land, and a right of common of estovers only. It is true that a single copyholder, or other tenant, and that one only, may be entitled to right of common of pasture, or estovers, or other profit in the land
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 suf ficient 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 hedgebote, is wood for repairing of hay, 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 house-bote, plough-bote, cartbote, and hedge-bote, for repairing his house, his instruments of tillage, and the necessary fences of his grounds.
IV. A fourth species of incorporeal hereditaments is that of ways; or the right of going over another man's ground.so 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 granted on a special permission; as when the owner of the land grants to another the 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 the grantee leaves the country, he cannot assign over his right to any other; nor can he justify taking another *person in his company.(n)si A way may be also by prescription; as if all the inhabitants of such a hamlet, or all the owners and occupiers of
[*36 (***) Co. Litt. 41.
(*) Finch, Law, 31.
of the lord of the manor; but then the lord at least must participate in the right: if tho tenant enjoyed the right solely, severally, and exclusively, it would be difficult, without a violent strain of language, to discover in such a right any commonable qualities. Foiston & Cracherode's case, 4 Rep. 32. North vs. Coe, Vaugh. 256.-Chitty.
29 Common of estovers cannot be apportioned; and, where a farm entitled to estovers is divided by the act of the parties among several tenants, neither of them can take estovers: the right to them is extinguished. But where common of estovers devolves upon several, by operation of law, though they cannot enjoy the right in severalty, yet they may, by uniting in a conveyance, vest the right in an individual. Van Rensellaer vs. Radcliffe, 10 Wend. 639. Livingston vs. Ketchum, 1 Barbour, 592.-SHARSWOOD.
30 As to highways in general, see Com. Dig. tit. Chimin; Bac. Abr. Highways; Burn, J, Highways ; Selw. N. P. Trespass, iv. 7 ; Saunders by Patterson, index, Ways; Bateman's Turnpike Acts; 3 Chitty's Crim. L. 565 to 668.
With respect to private ways, see in general Com. Dig. Chimin, D. Bac. Abr. Highways, C. Selw. N. P. Trespass, iv. 7. 1 Saunders by Patterson, 323, note 6, id, index, Ways.-Chitty.
81 The way by grant also includes a reservation, which is in effect a granting back of the right of way by the grantee. The grant or reservation assures the right of way, as appurtenant to every part of the land to which it is attached, and the grantee of any part is entitled to it. Watson vs. Bioren, 1 S. & R. 227. Underwood vs. Carney, 1 Cushing, 285. Unless every person to whom any part is conveyed has a right to the way, the right is totally extinguished by an alienation of part of the premises to which it is appurtenant, because it cannot be said that the owner of one part has better right than the owner of the other: consequently, if both could not have the right, the whole would be gone. The grantee of a right of way, however, has no title to use it as a passage to other land than that to which it was attached; nor can the owner of the soil, who had granted the right of way to a stranger, use it for such a purpose. The use of a way must be according to the grant or occasion of it, and not exceed it: so that a right of way over another's ground to a particular place will not justify the use of it to go beyond that prace Kirkham vs. Sharp, 1 Whart. 323. The grantee of a right of way is bound to keep it in repair. Wynekoop vs. Burger, 12 Johnson, 222. The grant of a right of way may be implied as well as expressed. If one sells to another a lot carved out of a larger lot belonging to the vendor, agreeably to a plan upon which are laid out certain space-ways
such a farm, have immemorially used to cross such a ground for such a par. ticular purpose: for this immemorial usage supposes an original grant where by a right of way thus appurtenant to land or houses may clearly be creatod.» 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 to it; and I may cross his land for that pur. pose without trespass.co) 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 iand, 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.(2)
V. Offices, which are a right to exercise a public or private employment, and to take the fees and emoluments thereunto belonging, are also incorporeal
(?) Lord Raym. 725. 1 Brownl. 212. 2 Show. 28. 1 Jon.
(0) Ibid. 63.
or passages over the proprietor's ground adjacent to the lot, contemplating at the same time that the vendee will erect brick buildings, to which such space-ways and passages are immediately necessary or useful, it must be considered as intending the grant of the right to the vendee to use those space-ways in common with the proprietor of the adjacent lot. Selden vs. Williams, 9 Watts, 13. Van Metz vs. Nankinson, 6 Whart. 307.SHARSWOOD.
2 Prescription rests upon the presumption of a grant. But, to authorize such a pre sumption, the user must be adverse and under a claim of right. The period of twenty years has been adopted in England, in analogy to the statute of limitation in relation to land, which bars an entry after twenty years' adverse possession. In Pennsylvania the period of limitation is twenty-one; and the same period has been adopted to give rise to the presumption. Dyer vs. Depui, 5 Whart. 584. So where a way has originally existed, it may be rebutted by evidence of non-user for the same period which gives rise to a presumption of extinguishment. But where it has been acquired expressly by grant or reservation, it will not be lost by non-user, unless there were a denial of title or other act on the adverse part to quicken the owner in the assertion of his right. Ihrie, 1 Rawle, 218. Twenty-one years' actual occupation of land, adverse to a right of way and inconsistent with it, bars the right. Yeakle vs. Nace, 2 Whart. 123.ŠHARS
83 These are termed ways of necessity. It is always of strict necessity; and this necessity must not be created by the party claiming the right of way. It never exists where a man can get to his property through his own land. That a road through his neigh bour's would be a better road, more convenient, or less expensive, is not to the purpose. That the passage through his own land is too steep or too narrow does not alter the case. It is only where there is no way through his own land that the right of way over the land of another can exist. A right of way from necessity only extends to a single way. That a person claiming a way of necessity has already one way is a good plea, and bars the plaintiff. McDonald vs. Lindall, 3 Rawle, 492. İt is founded on an implied grant, according to the legal maxim, quando lest aliquid alicui concedit, concedere videtur et id sine quo res ipsa esse non potest. Nichols vs. Luce, 24 Pick. 102. But whereabouts shall be the way? The owner of the land over which it exists has a right to locate it in the first instance, with this limitation, that it must be a convenient way. If he fails or refuses to locate, or makes an inconvenient or unreasonable location, the right devolves upon the grantee of the way. Russell vs. Jackson, 2 Pick. 274. The right of way of necessity ceases with the necessity which gave rise to it; so that if a public road is opened, or the grantee purchases other land which gives him a way over his own land, the first right of way ceases. Collins vs. Prentice, 15 Conn. 39. Pierce vs. Selleck, 18 Conn. 321. New York Life Ins. & Trust Co. vs. Milnor, 1 Barbour Ch. Rep. 353. SAARSWOOD.
34 Lord Mansfield took notice of the inaccuracy of this passage in the case of Taylor vs. 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 the way, he cannot justify going over the adjoining land when the way is impassable by the overflowing of a river ; but if public highways are foundrous, passengers are justified, from principles of convenience and necessity, in turning out upon the land next the road. - CHRISTIAN.
The same law is laid down in Miller vs. Bristol, 12 Pick. 550. Williams vs. Safford, 7 Barbour, 309.-SHARSWOOD.
hereditaments; whether public, as those of magistrates; or private, as of bailiffs, receivers, and the like. For a man may have an estate in them, either to him and his heirs, or for life, or for a term of years, or during pleasure only: save only that offices of public trust cannot be granted for a term of years, especially if they concern the administration of justice, for then they might perhaps vest in executors or administrators.(r) Neither can any judicial office be granted in reversion: because though the grantee may be able to perform it at the time of the grant, yet before the office falls he may become unable and insufficient: but ministerial offices may be so granted;(s) for those may be executed by deputy:35 Also by statute 5 & 6 Edw. VI. c. 16, no public office (a few only excepted) shall be sold, under pain of disability to dispose of or hold it For the law presumes that *he who buys an office will, by bribery, extortion, or other unlawful means, make his purchase good, to the manifest
[*37 detriment of the public.36
VI. Dignities bear a near relation to offices. Of the nature of these we treated at large in the former book;(t) it will therefore be here sufficient to mention them as a species of incorporeal hereditaments, wherein a man may have a property or estate. 37
VII. Franchises are a seventh species. Franchise and liberty are used as synonymous terms; and their definition is(u) a royal privilege, or branch of the king's prerogative, subsisting in the hands of a subject. Being therefore derived from the crown, they must arise from the king's grant; or in some cases may be held by prescription, which, as has been frequently said, presupposes a grant. The kinds of them are various, and almost infinite: I will here briefly touch upon some of the principal; premising only, that they may be vested in either natural persons or bodies politic; in one man or in many; bus the same identical franchise that has before been granted to ono, cannot be bestowed on another, for that would prejudice the former grant.(w)
To be a county palatine is a franchise, vested in a number of persons. It is likewise a franchise for a number of persons to be incorporated, and subsist as a body politic; with a power to maintain perpetual succession, and do other corporate acts: and each individual member of such corporation is also said to have a franchise or freedom. Other franchises are, to hold a court-leet: to have a manor or lordship; or, at least, to have a lordship paramount: to have waits, wrecks, estrays, treasure-trove, royal fish, forfeitures, and deodands: to have a court of one's own, or liberty of holding pleas and trying causes: to have the cognizance of pleas; which is a still greater liberty, being an exclusivo right, so that no other court shall try causes arising within that jurisdiction : 9 Rep. 97.
(*) Finch, i. 164. 11 Rep. 4.
(W) 2 Roll. Abr. 191. Keilw. 196. () See book i. ch. 12. 35 If two offices are incompatible, by the acceptance of the latter the first is relin quished and vacant, even if it should be a superior office. 2 T. R. 81.-CHRISTIAN.
The 49 Geo. III. c. 126 extends the provisions of this statute to other offices.-CHITTY,
Dignities were originally annexed to the possession of certain estates in land, and created by a grant of those estates; or, at all events, that was the most usual course. Rex vs. Knollys, 1 L. Raym. 13. And although dignities are now become little moro than personal distinctions, they are still classed under the head of real property, and, as having relation to land, in theory at least, may be entailed by the crown, within the statute de donis, or limited in remainder, to commence after the determination of a preceding estate tail in the same dignity. Nevill's case, 7 Rep. 122. And if a tenant in tail of a dignity should be attainted for felony, the dignity would be only forfeited during his life, but after his decease would vest in the person entitled to it per formam doni. Stat. 54 Geo. III. c. 145. Even if a man in the line of entail of a dignity, but not actually possessed of it, were attainted of treason, his son, surviving him, might claim from tho first acquirer, without being affected by the attainder of his father. 2 Hale's Pl. Cr. 356. But if the father was in possession of the dignity at the time of such attainder, then his corruption of blood would be fatal to the claim of the son; and in the case of a dignity descendible to heirs general, the attainder for treason of any ancestor through whom the claimant of such dignity must derive his tit!ą, though the person attaintea nerer was possessed of the dignity, will bar such claim. Rex *. Purbeck. Show. P. C. 1. Law of Forfeiture, 86, 87. -Cuitty.