bert. On the part of the defendants, it was admitted that this was not an exemption. But it was said that from a possession of two hundred and fifty years, a conveyance from the dean and chapter of Rochester prior to 13 Eliz. would be presumed: and that the general words were sufficient to convey the tithes, as profits of the lands. Lord Kenyon, before whom the abstract and all the opinions. taken on both sides had been laid, said,—“ All objections are admitted to be removed, except that which relates to the tithes. A court of equity, in these cases, has a discretion which I, sitting here, cannot exercise; as I am bound to tell the jury that the plaintiff cannot recover his deposit, if there be a good title to these tithes; and on all the circumstances, I think there is such good title. Here is possession of them for two hundred and fifty years. Who can disturb the title? The rector cannot. These tithes have been severed from the rectory ever since the Conquest. If these tithes had been part of the rectorial tithes, no time would have barred the rector. Where is there any other right? The dean and chapter of Rochester might before the 13 Eliz. have alienated them. I am very clear, that on a possession of two centuries and a half, I must tell the jury that they should presume any conveyance from the dean and chapter." The plaintiff was nonsuited. COMMON is a right or privilege which one or more persons have, Nature of. to take or use some part or portion of that which another person's lands, waters, woods, &c. produce. It commenced in some agreement between the lords of manors and their tenants, for valuable purposes; and being continued by usage, is good and valid at present, though there be no deed or instrument in writing to prove the original grant. 2. The most general and valuable kind of common is that of pasture; which is a right of feeding one's beasts in another's land; for in those waste grounds which are called commons, the property of the soil is generally in the lord of the manor, This kind of common is either appendant, appurtenant, because of vicinage, or in gross. Common of pasture. Inst. 122 a. 3. Common appendant is a right annexed to the possession of Appendant. (a) [See the stat. 2 & 3 Will. 4. c. 71.] 2 Inst. 85. 1 Roll. Ab.396. Gateward's case, 6 Rep. 59. 4 Rep. 37 a. Emerton v. Hollinshead v. 1 Inst. 122 a. land, by which the owner thereof is entitled to feed his beasts on the wastes of the manor. The origin of which is thus described by Lord Coke. "When a lord of a manor, wherein was great waste grounds, did enfeoff others of some parcels of arable land, the feoffees, ad manutenendum servitium soca, should have common in the said wastes of the lord, for two causes; first, as incident to the feoffment; for the feoffee could not plough and manure his ground without beasts, and they could not be sustained without pasture; and by consequence the tenant should have common in the wastes of the lord for his beasts, which do plough and manure his tenancy, as appendant to his tenancy; and this was the beginning of common appendant. The second reason was for maintenance and advancement of agriculture and tillage, which was much favoured in law." 4. Common appendant must be time out of mind, and can only be claimed by prescription; so that it cannot be pleaded by way of custom. Thus where a person alleged a custom, that every inhabitant of a certain town had common of pasture in a particular place; it was resolved that such custom was against law, and therefore void. 5. Common appendant is regularly annexed to arable land only; yet it may be claimed as appendant to a manor, farm, or carve of land, though it contain pasture, meadow, and wood; for it will be presumed to have all been originally arable: but a prescription to have common appendant to a house, meadow, or pasture is void. 6. Common of pasture may be appendant to a cottage, for a cottage has at least a curtilage annexed to it; nor is it deemed in law to be a cottage, unless there are four acres of land belonging to it. 7. It was resolved by the Court of King's Bench, in a modern case, that the owner of a tenement may have two distinct rights of common for his cattle, upon different wastes, in different manors, under several lords: though it might be otherwise if the different wastes had appeared to have been originally held under the same lord. 8. Common appendant can only be claimed for such cattle as are necessary to tillage; as horses and oxen to plough the land, and cows and sheep to manure it. 397-8. Bennet v. Ab. 583. Reeve, 4 Vin. 9. Common appendant may by usage be limited to any certain 1 Roll. Ab. number of cattle: but where there is no such usage, it is restrained to cattle levant and couchant upon the land, to which the right of common is appendant; and the number of cattle which are allowed to be levant and couchant shall be ascertained Chester, by the number of cattle which can be maintained on the land during the winter. Benson v. 8 Term R. 396. 1 Bar. & Ald. 709. 10. Common appurtenant does not arise from any connexion Appurtenant. of tenure, but must be claimed by grant or prescription; and may be annexed to lands lying in different manors from those in which it is claimed. This species of common, though frequently 1 Roll. Ab.399. confounded with common appendant, differs from it in many cir cumstances. It may be created by grant, whereas common 3 B. & Cr. 339. appendant can only arise from prescription. It may be claimed 6 East. 214. as annexed to any kind of land, whereas common appendant can only be claimed on account of ancient arable land. It may be not only for beasts usually commonable, such as horses, oxen, and sheep but likewise for goats, swine, &c. 180. n. 11. Common appurtenant may be for cattle without number, Fitz. N. B. or for a certain number only; and may be appurtenant to a manor by prescription, or by grant, made since time of memory; and that as well for a certain number of cattle, as without num- 1 Roll. Ab. 398. ber: where it is without number, it is restrained to cattle levant and couchant on the land to which it is annexed. Therefore, if a person claims common by prescription on the land of another, for all manner of commonable cattle, as belonging to a tenement, this is a void prescription; because he does not say that it is for cattle levant and couchant on the land. 12. It has been determined in a modern case, that common for cattle levant and couchant cannot be claimed by prescription, as appurtenant to a house, without any curtilage or land. And Mr. Justice Buller said, the only question was, what was meant in former cases by the words messuage and cottage, annexed to which was the right of common claimed; for in all of them, the Court said, they would intend that land was included therein. And that it was necessary there should be some land annexed to the house was clear, from considering what was meant by levancy and couchancy: it meant the possession of such land as would keep the cattle claimed to be commoned, during the Stevens v. Scholes v. 1 Roll. Ab. 398. Drury v. Kent, W. Jones 375. Because of vicinage. 1 Inst. 122 a. 11 Mod. 72. 4 Rep. 38 a. 1 Inst. 122 a. Corbet's case, 7 Rep. 5. winter; and as many as the land would maintain during the winter, so many should be said to be levant and couchant. 13. Persons entitled to common appendant or appurtenant cannot in general use the common but with their own cattle. If, however, they take the cattle of a stranger, and keep them on their own land, being there levant and couchant, they may use the common with such cattle: for they have a special property in them. 14. Common appendant or appurtenant for all beasts levant and couchant cannot be granted over; but common appurtenant for a limited number of beasts may be granted over: and it is said, that in a case of this kind, the commoner may grant over part of the right of common, and reserve the rest to himself. 15. Common because of vicinage is where the inhabitants of two townships, which lie contiguous to each other, have usually intercommoned with one another; the beasts of the one straying mutually into the other's fields, without any molestation from either. This species of common is in fact only a permissive right, intended to excuse what in strictness is a trespass in both; and to prevent a multiplicity of suits. It can only exist between two townships or manors adjoining one another; not where there is intermediate land. 16. Common because of vicinage is not common appendant: but inasmuch as it ought to be by prescription, from time immemorial, as common appendant, it is in this respect similar to that species of common. 17. This right of common does not authorize an inhabitant of of one township or manor to put his cattle upon the wastes of the other township or manor: but he must put them upon the wastes of his own township or manor, from whence they may into the wastes of the other. escape 18. Common because of vicinage can only be used by cattle levant and couchant upon the lands to which such right of common is annexed and if the commons of the towns of A. and B. are adjoining, and there are fifty acres of common in the town of A. and one hundred acres in the town of B., the inhabitants of the town of A. cannot put more cattle on their common than it will feed, without any respect to the extent of the common in the town of B., nec è converso. |
