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CHAPTER THE SIXTEENTH.
T HE sixth and last species of real injuries is that of
1 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 franchises. 2. Dis urbance of common. 3. Disturbance of ways. 4. Disturbance of tenure, 5. Disturbance of patronage.
I. DISTURBANCE of franchises 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 feising waiss 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 obstruēts the passage to my fair or market; or hunts in my freewarren; or refuses to pay me the accustomed toll; or hinders me from feising 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 a special action on the case : or, in case of toll, may take a distress if he pleases b.
a Finch. L. 187,
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 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 same inconvenience. But tlie lord of the soil may (by custom or prescription, but not without) put a stranger's cattle into the common c; and also, by a like prescription for common appurtenant, cattle that are not commonable may be put into the commond. The lord also of the foil may jusțify making burrows therein, and putting in rabbets, so as they do not encrease 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 distreiu them damage-feasant: or the commoner may bring an action on the case to recover damages, provided the injury done be any thing considerable : 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 trespass the commoner has no action ; but the lord of the soil only for the entry and trespass committed 6.
ANOTHER disturbance of common is by surcharging it; or putting more cattle therein than the pasture and herbage will fustain, or the party hath 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 contract
b Cro. Eliz. 538. ci Roll. Abr. 396. & Co. Litt. 122.
e Cro. Eliz. 876. Cro. Jac. 195. Lw. 108.
ing them into a smaller compass. This injury by surcharging can properly speaking only happen, where the commion is appendant or appurtenant", and of course limitable by law; or where, when in gross, it is expressly limited and certain : for where a man hath common in gross, fans nombre or without fint, he cannot be a surcharger. However, even where a man is said to have common without stint, still there must be left fufficient for the lord's own beasts i: for the law will not suppose that, at the original grant of the common, the lord meant to exclude himself.
The usual remedies, for surcharging the common, are ei, ther by distreining 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 a special action on the case for damages; in which any commoner may be plaintiffi. But the antient and most effectual method of proceeding is by writ of admeasurement of pasture. This lies, either where a common appurtenant or in gross is certain as to number, or where a man has common appendant or appurtenant to his land, the quantity of which common has never yet been ascertained, In either of these cases, as well the lord, as any of the commoners, is entitled to this writ of admeasurement; which is one of those writs, that are called vicentielk, being directed to the sheriff, ( vice comiti) and not to be returned to any superior court, till finally executed by him. It recites a complaint, that the defendant hath surcharged, superoneravit, the common: and therefore commands the sheriff to admeasure and apportion it; that the defendant may not have more than belongs to him, and that the plaintiff may have his rightful share. And upon this suit all the commoners shall be admeasured, as well those who have not, as those who have, surcharged 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
no Sce book II. ch. 3.
k 2 Init. 369. Finch. L. 314,
oaths to ascertain, under the superintendence of the Neriff, 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 shall not turn more cattle upon the common, than are sufficient 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 erroneously, occasioned this unmeasured right of common to be called a common without stint or fans nombren; a thing which, though poflible in law", does in fact very rarely exist.
IF, after the admeasurement has thus ascertained the right, the same defendant surcharges the common again, the plaintiff may have a writ of second furcharge, de fecunda fuperoneratione, which is given by the statute 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 surcharged the common contrary to the tenor of the last admeasurement: and if he has, he shall then forfeit to the king the supernumerary cattle put in, and also shall pay damages to the plaintiff P. This process seems highly equitable: for the first offence is held to be committed through mere inadvertence, and therefore there are no damages or forfeiture on the first writ, which was only to ascertain the right which was disputed: but the second offence is a wilful contempt and injustice; and therefore punilhed very properly with not only damages, but also forfeiture. And herein the right, being once settled, is never again disputed; but only the fact is tried, whether there be any second surcharge or no : which gives this neglected prom Bro. Abr... prescription. 28. O Lord Raym. 407. n Hardr. 117
PF. N. B. 126. 2 Ink. 37).
(1) And agreeably to this rule it has been decided, that a clajin of a right of common for all commonable cattle, levant and couchant, in right of a mesuage, to which no land is appurtenant, cannot be supported. 57. R. 46.
ceeding a great advantage over the modern method, by action
[ 240 ] THERE is yet another disturbance of common, when the
owner of the land, or other person, so encloses or otherwise
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 9 Crn. Fliz. 198.
e Finch. L. 275. F. N. B. 123. Cro. Jac. 195.
u Cro. Jac. 195. .F. N. B. 179.