CHAPTER THE SIXTEENTH. OF DISTURBANCE. HE fixth and laft fpecies of real injuries is that of difturbance; which is ufually a wrong done to fome incorporeal hereditament, by hindering or difquieting the owners in their regular and lawful enjoyment of it'. I fhall confider five forts of this injury; viz. 1. Disturbance of franchifes. 2. Diflurbance of common. 3. Disturbance of ways. 4. Disturbance of tenure. 5. Disturbance of patronage. I. DISTURBANCE of franchifes happens, when a man has the franchise of holding a court-leet, of keeping a fair or market, of free-warren, of taking toll, of feifing waifs or eftrays, or (in fhort) any other fpecies of franchife whatfoeyer; and he is difturbed or incommoded in the lawful exercife thereof. As if another by distress, menaces, or perfuafions, prevails upon the fuitors not to appear at my court; or obftructs the paffage to my fair or market; or hunts in my freewarren; or refufes to pay me the accustomed toll; or hinders me from feifing the waif or eftray, whereby it escapes or is carried out of my liberty: in every cafe of this kind, all which it is impoffible here to recite or fuggeft, there is an injury done to the legal owner; his property is damnified; and the profits arifing from fuch his franchife are diminished. To remedy which, as the law has given no other writ, he is a Finch. L. 187. therefore therefore entitled to fue for damages by a fpecial action on the cafe: or, in cafe of toll, may take a distress if he pleases". II. THE disturbance of common comes next to be confidered; 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 hath no right of common, puts his cattle into the land; and thereby robs the cattle of the commoners of their respective shares of the paiture. Or if one, who hath a right of common, puts in cattle which are not commonable, as hogs and goats; which amounts to the fame inconvenience. But the lord of the foil may (by custom or prefcription, but not without) put a ftranger's cattle into the common; and alfo, by a like prefcription for common appurtenant, cattle that are not commonable may be put into the common. The lord alfo of the foil may justify making burrows therein, and putting in rabbets, fo as they do not encrease to fo large a number as totally to destroy the common. But in general, in cafe the beafts of a stranger, or the uncommonable cattle of a commoner, be found upon the land, the lord or any of the commoners may diftrein them damage-feafant f: or the commoner may bring an action on the cafe to recover damages, provided the injury done be any thing confiderable: so that he may lay his action with a per quod, or allege that thereby he was deprived of his common. But for a trivial trefpafs the commoner has no action; but the lord of the foil only for the entry and trefpafs committed. ANOTHER disturbance of common is by furcharging it; or putting more cattle therein than the pafture and herbage will fuftain, or the party hath a right to do. In this cafe he that furcharges does an injury to the rest of the owners, by depriving them of their refpective portions, or at least contract b Cro. Eliz. 558. e Cro. Eliz. 876. Cro. Jac. 195. Luxw. 108. f 9 Rep. 112. g Ibid. $ 4 ing BOOK III. ing them into a fmaller compafs. This injury by furcharging can properly speaking only happen, where the common is appendant or appurtenant", and of courfe limitable by law; or where, when in grefs, it is exprefsly limited and certain: for where a man hath common in grofs, fans nombre or without fint, he cannot be a surcharger. However, even where a man is faid to have common without stint, still there must be left fufficient for the lord's own beafts : for the law will not fuppofe that, at the original grant of the common, the lord meant to exclude himself. THE ufual remedies, for furcharging the common, are ei ther by diftreining fo many of the beafts as are above the number allowed, or elfe by an action of trefpafs; both which may be had by the lord: or laftly, by a fpecial action on the cafe for damages; in which any commoner may be plaintiffi. But the antient and most effectual method of proceeding is by writ of admeasurement of pafture. This lies, either where a common appurtenant or in grofs is certain as to number, or where a man has common appendant or appur tenant to his land, the quantity of which common has never yet been ascertained, In either of these cafes, as well the lord, as any of the commoners, is entitled to this writ of admeasurement; which is one of thofe writs, that are called vicontiel, being directed to the sheriff, (vice comiti) and not to be returned to any fuperior court, till finally executed by him. It recites a complaint, that the defendant hath furcharged, fupercneravit, the common: and therefore commands the sheriff to admeafure and apportion it; that the defendant may not have more than belongs to him, and that the plaintiff may have his rightful fhare, And upon this fuit all the commoners fhall be admeasured, as well those who have not, as thofe who have, furcharged the common; as well the plaintiff, as the defendant. The execution of this writ must be by a jury of twelve men, who are upon their See book II. ch. 3. i1 Roll. Abr. 399. j Freem 273. k 2 Init. 369. Finch. L. 314. oaths oaths to ascertain, under the fuperintendence of the sheriff, what and how many cattle each commoner is entitled to feed. And the rule for this admeasurement is generally understood to be, that the commoner fhall not turn more cattle upon the common, than are fufficient to manure and stock the land to which his right of common is annexed; or, as our antient law expressed it, such cattle only as are levant and couchant upon his tenement "(1): which being a thing uncertain before admeasurement, has frequently, though erroneoufly, occafioned this unmeasured right of common to be called a common without flint or fans nombren; a thing which, though poffible in law, does in fact very rarely exist. IF, after the admeasurement has thus afcertained the right, the fame defendant furcharges the common again, the plaintiff may have a writ of fecond furcharge, de fecunda fuperoneratione, which is given by the ftatute Westm. 2. 13 Edw. I. c. 8. and thereby the sheriff is directed to inquire by a jury, whether the defendant has in fact again furcharged the common contrary to the tenor of the laft admeafurement: and if he has, he fhall then forfeit to the king the fupernumerary cattle put in, and alfo fhall pay damages to the plaintiff P. This process feems highly equitable: for the firft offence is held to be committed through mere inadvertence, and therefore there are no damages or forfeiture on the firft writ, which was only to afcertain the right which was difputed: but the fecond offence is a wilful contempt and injuftice; and therefore punished very properly with not only damages, but also forfeiture. And herein the right, being once fettled, is never again difputed; but only the fact is tried, whether there be any fecond furcharge or no: which gives this neglected pro m Bro. Abr.1. prefcription. 28. n Hardr. 117. O Lord Raym. 407. p F. N. B. 126. 2 Ink. 370. (1) And agreeably to this rule it has been decided, that a claim of a right of common for all commonable cattle, levant and couchant, in right of a meffuage, to which no land is appurtenant, cannot be fupported. 5. R. 46. ceeding ceeding a great advantage over the modern method, by action on the cafe, wherein the quantum of common belonging to the defendant must be proved upon every fresh trial, for every repeated offence. [240] THERE is yet another disturbance of common, when the owner of the land, or other perfon, fo enclofes or otherwife obstructs it, that the commoner is precluded from enjoying the benefit, to which he is by law entitled. This may be done, either by erecting fences, or by driving the cattle off the land, or by ploughing up the foil of the common ". Or it may be done by erecting a warren therein, and flocking it with rabbets in fuch quantities, that they devour the whole herbage, and thereby deftroy the common. For in such case, though the commoner may not deftroy the rabbets, yet the law looks upon this as an injurious difturbance of his right, and has given him his remedy by action against the owners. This kind of difturbance does indeed amount to a diffeifin, and if the commoner chufes to confider it in that light, the law has given him an athize of novel diffeifin, against the lord, to recover the poffeffion of his commons. Or it has given a writ of qued permittat, against any ftranger, as well as the owner of the land, in case of such a disturbance to the plaintiff as amounts to a total deprivation of his common; whereby the defendant fhall be compelled to permit the plaintiff to enjoy his common as he cught'. But if the commoner does not chufe to bring a real action to recover feilin, or to try the right, he may (which is the easier and more ufual way) bring an action on the cafe for his damages, instead of an aflife or a quod permittat ". THERE are cafes indeed, in which the lord may enclofe and abridge the common; for which, as they are no injury to any one, fo no one is entitled to any remedy. For it is provided by the ftatute of Merton, 20 Hen. III. c. 4. that the lord may approve, that is, enclose and convert to the uses q Crn. Fliz. 193. F. N. B. 179. Finch. L. 275. F. N. B. 123. u Cro. Jac. 195. of |