And from this original have fprung all the lands, which, being in lay hands, do at prefent claim to be tithe-free: for, if a man can shew his lands to have been fuch abbey lands, and also immemorially discharged of tithes by any of the means before-mentioned, this is now a good prefcription de non decimando (12). But he muft fhew both these requifites: for abbey lands, without a special ground of discharge, are not discharged of courfe; neither will any prescription de nen decimando avail in total discharge of tithes, unless it relates to fuch abbey lands. III. COMMON, or right of common, appears from it's 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 forts; common of pasture, of piscary, of turbary, and of eftovers. 1. COMMON of pasture is a right of feeding one's beasts on another's land: for in those waste grounds, which are ufually called commons, the property of the foil 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 grofs b. COMMON appendant is a right, belonging to the owners or [33] occupiers of arable land, to put commonable beafts upon the lord's wafte, and upon the lands of other perfons within the fame manor. Commonable beasts are either beafts of the plough, or fuch as manure the ground. This is a matter of moft univerfal right: and it was originally permitted, not only for the encouragement of agriculture, but for the necef (12) Pofterior ufage is evidence of the antecedent, and has always been allowed fo in cafes of this nature; for what other evidence can be had? Ld. Hardw. 2 Atk. 1376 fity of the thing. For, when lords of manors granted out parcels of land to tenants, for fervices either done or to be done, these tenants could not plough or manure the land without beafts; thefe beafts could not be fuftained without pafture; and pafture could not be had but in the lord's waftes, and on the uninclosed fallow grounds of themselves and the other tenants. The law therefore annexed this right of common, as infeparably 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 fame manner as in England". Common appurte nant arifeth from no connection of tenure, nor from any abfolute neceffity: but may be annexed to lands in other lordfhips, or extend to other beafts, befides fuch as are generally commonable; as hogs, goats, or the like, which neither plough nor manure the ground. This not arifing from any natural propriety or neceflity, like common appendant, is therefore not of general right; but can only be claimed by immemorial usage and prescription', which the law esteems fufficient proof of a fpecial grant or agreement for this purpofe. Common because of vicinage, or neighbourhood, is where the inhabitants of two townships, which lie contiguous to each other, have ufually intercommoned with one another; the beafts of the one ftraying mutually into the other's fields, without any moleftation from either. This is indeed only a permiffive right, intended to excufe what in ftrictness. is a trespass in both, and to prevent a multiplicity of fuits: and therefore either township may enclofe 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 ftray thither of themselves, the law winks at the trespass 8. Common in grofs, or at large, is fuch as is neither appendant nor appurtenant to land, but is annexed to a man's perfon; being granted to him and his heirs by deed; or it may be claimed by prefcriptive right, as by a parfon of a church, or d Stiernh. de jure Suconum, l. 2. c. 6. I f Co. Litt. 121, 122. the the like corporation fole. This is a feparate inheritance, entirely diftinct from any landed property, and may be vefted in one who has not a foot of ground in the manor. ALL thefe fpecies, of pafturable common, may be and usually are limited as to number and time; but there are also commons. without ftint, and which laft all the year (13). By the statute of Merton however, and other fubfequent ftatutes ", the lord of a manor may enclose so much of the waste as he pleases, for tillage or woodground, provided he leaves common fufficient for fuch as are entitled thereto. This enclosure, when juftifiable, is called in law, "approving:" an ancient expreflion fignifying the fame as "improving (14)." The lord hath the fole intereft in the foil; 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 ftrangers, or each other; the lord for the public injury, and each commoner for his private damage *. 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'. There is alfo a common of digging for coals, minerals, ftones, and the like. All these 20 Hen. III. c. 4. 29 Geo. II. c. 36, and 31 Geo. II. c. 41. i 2 Inft. 474... k 9 Rep. 113. 1 Co. Litt. 122. (13) It feems to be fully established, that upon all commons appendant or appurtenant to land, the owner of the land can only turn out his own cattle, and fuch as are levant and couchant upon the land, to which the right of common is annexed. Skin. 137. and fee the cafes referred to in 2 Woodd. 77. and Com. Dig. Common. (14) But the lord cannot approve where the commoners have a right of turbary, piscary, of digging fand, or of taking any species of eftovers upon the common. 2 Inft. 87. 2 T. R. 391. It has been determined, that any person, befides the lord of the manor, who is feifed in fee of part of a waste, may approve, provided he leaves a fufficiency of common for the tenants of the manor. 4 T. R. 445. D 4 bear [ 35 ] bear a refemblace 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 foil, which renews annually; but common of turbary, and those aforementioned, are a right of carrying away the very foil itself. 4. COMMON of eftovers or eftouviers, that is, necessaries (from eftoffer, to furnish) is a liberty of taking neceffary wood, for the ufe or furniture of a house or farm, from off another's eftate. The Saxon word, bote, is ufed by us as fynonymous to the French eftovers: and therefore house-bote is a fufficient allowance of wood, to repair, or to burn in, the house; which latter is fometimes 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 edge-bote is wood for repairing of hays, hedges, or fences. Thefe botes or eftovers must be reasonable ones; and fuch any tenant or leffee may take off the land let or demised to him, without waiting for any leave, affignment, or appointment of the leffor, unless he be restrained by special covenant to the contrary". THESE several species of commons do all originally result from the fame neceffity as common of pasture; viz. for the maintenance and carrying on of husbandry: common of pifcary being given for the fuftenance 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 inftruments of tillage, and the neceffary fences of his grounds. IV. A FOURTH fpecies 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 m Co. Litt. 41. the 35. the foil. This may be grounded on a fpecial permiffion; as when the owner of the land grants to another a liberty of paffing over his grounds, to go to church, to market, or the like in which cafe the gift or grant is particular, and confined to the grantee alone; it dies with the perfon; and, if the grantee leaves the country, he cannot affign over his right to any other; nor can he justify taking another perfon in his [ 36 ] company". A way may be alfo by prescription; as if all the inhabitants of fuch a hamlet, or all the owners and occupiers of fuch a farm, have immemorially used to cross such a ground, for fuch a particular purpose: for this immemorial ufage fupposes an original grant, whereby a right of way thus appurtenant to land or houses may clearly be created. A right of way may also arife 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 fame 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 fame”. 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 cafes, feems to correfpond with the Roman (15). n Finch. law. 31. ] q Lord Raym. 725. 1 Brownl. 212. 2 Show. 28. 1 Jon. 297. • Ibid. 63. P Co. Litt. 56. (15) Lord Mansfield took notice of the inaccuracy of this paffage, in the cafe 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 the way, he cannot justify going over the adjoining land, when the way is impaffable by the overflowing of a river; but if public highways are foundrous, passengers are justified, from principles of convenience and neceflity, in turning out upon the land next the road. V. OFFICES, |