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ing 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 : for where a man hath common in gross, fans nombre or without stint, 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 1100 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 plaintiffj. But the antient and most effectual method of proceeding is by writ of admeasurement of pasture. This lies, eis ther where a common appurtenant or in gross 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 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 vicontielk, 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, fuperoneravit, 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, i , Roll. Abr. 399.
* IF. N. B. 125. j Frcem 273
oaths to ascertain, under the superintendence of the Periff, 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 sans nombren; a thing which, though possible 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 fecond surcharge, 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 pro
m Bro. Abr... prescriprion. 23. n Hardı. 117.
Lord Raym. 497..
(1) And agreeably to this rulc it has been decided, that a claim of a right of common for all commonable cattle, levant and couchant, in right of a mesluage, to which no land is appurtenant, cannot be supported. 5 T. R.46.
ceeding a great advantage over the modern method, by action on the case, 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 person, so encloses or otherwise 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 catile 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 rabbets 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 rabbers, yet the law looks upon this as an injurious ditturbance of his right, and has given him his remedy by action against the ownerr. This kind of disturbance does indeed amount to a diffeiun, and if the conimerer chufes to consider it in that light, the law has given him an ailze of novel difeilin, against the lord, to recover the posleffion of his common. Or it has given a writ of quod pernitiat, against any stranger, 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 shall be compeiled to permit the plain. tiff to enjoy his common as he ought'. But if the commoner does not chuse to bring a real action to recover seilin, or to try the right, he may (which is the easier and more usual way) bring an action on the case for his damages, instead of an assise or a quod permittatų.
· '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 Cro. Fliz. 193.
i Finch. L. 275. F. N. B. 123. Cro. Jac. 195.
u Cro. Jac. 195. *F. N. B. 179
of of husbandry, (which is a melioration or approvement) any waste grounds, woods, or pastures, in which his tenants have common apperidant to their estates; provided he leaves fufficient common to his tenants, according to the proportion [ 241 ) of their land (2). 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 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 approve ing, in like manner, against all others that have common appurtenant, or in grofs, as well as against the tenants of the lord, who have their common appendant ; and farther enacts, that no aslife of novel diffeisin, for common, shall lie against a lord for erecting on the common any windmill, sheephouse, or other necessary buildings therein specified: which, fir Ed. ward Coke says w, 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. And lastly 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.
III. The third species of disturbance, that of ways, is very similar in it’s nature to the last: it principally happening when a person, who hath 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 or way, or at least not in so commodious a manner as he might have done. If this be a
W 2 Inf. 476.
(2) See 2 vol. p. 34, n. 14.
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 nuance, for which an aslife 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 tene[ 242 ) ments) or if the obstruclion of a way belonging to an house
or land is made by a stranger, it is then in either case merely a disturbance: for the obstruction of a way in grofs is 110 detriment to any lands or tenements, and therefore does not fall under the legal notion of a nusance, which must be laid, ad niocumenti liberi tenementiy; and the obstruction of it by a Itranger can never tend to put the right of way in dispute : the remedy therefore for these disturbances is not by allise or any real action, but by the universal remedy of action on the cale to recover damages 2.
IV. The fourth species of disturbance is that of disturbance of tenure, or breaking that connexion which subsists between the lord and his tenant, and to which the law pays so high a Tegard, that it will not suffer it to be wantonly diffolved by the act of a third person. To have an estate well tenanted is an advantage that every landlord must be very senâble of; and therefore the driving away of a tenant from off his estate is an injury of no small consequence. So that if there be a tenant at will of any lands or tenements, and a stranger either by menaces and threats, or by unlawful distresses, or by fraud and circumvention, or other means, contrives to drive him away, or inveigle him to leave his tenancy, tl.is the law very justly construes to be a wrong and injury to the lord", and gives him a reparation in damages against the offender by a special action on the case.
V. The fifth and last fpecies of disturbance, but by far the most considerable; is that of disturbance of patronage;
x ch. 13. p. 2:8.
F. N. 6.183.
a Hal. Anil. c. 40. 103.