II. Of Common of Pasture: and herein of Common appendant, Common appurtenant, and Common in gross.

Common of pasture is, where one person has, in common with other persons, the right of taking by the mouths of his cattle, the herbage growing on land of which some other person is the owner. Common of pasture is either common appendant, common appurtenant, or common in gross. With respect to two other kinds of common of pasture, which are sometimes mentioned in the books, viz. common of vicinage, and common in gross sans nombre, or without stint; it may be observed, that the former cannot, strictly speaking, be a right of common, for if it were, it would prevent an inclosure, which it has been always holden that it will not. The truth is, it is only an excuse for a trespass. Where there is a partial inclosuref, common by vicinage still continues. As to common in gross sans nombre, it has been truly said, that the notion of this species of common, in the latitude in which it was formerly understood, has been exploded long ago (5), and it cannot have any rational meaning, but in contradistinction to stinted common, where a man has right to put on the common a certain number of cattle only.

Common appendant is of common right (and therefore a man need not prescribe for it') (6), for beasts commonable, that is, that serve for the maintenance of the plough, as horse and oxen, and for kine and sheep to manure the land, and is appendant to ancient arable land only*. It must have existed from time immemorial'. It must be claimed in the

e Musgrave v. Cave, Willes, 322. h 1 Inst. 122. a. Bro. Abr. Comon. 1. 1 Inst. 122 a. i Bro. Abr. Comon. pl. 11. 35. k 4 Rep. 37. b. Willes, 322. 1 26 H. 4.a.

f Gullet v. Lopes, 13 East, 348. g Bennett v. Reeve, Willes, 232.

(5) In Mellor v. Spateman, 1 Saund. p. 346. c. Serj. Wms. edition, Kelynge, C. J. said positively, that there could not be any common in gross sans nombre. See also Benson v. Chester, 8 T. R. 396. where it was holden, that a claim of a right of common, without stint, as annexed to an ancient messuage, without land, could not be supported, such a right of common not existing in law.

(6) Common appendant must have existed from time immemorial, but it ought not to be claimed by prescription. The proper way of pleading it is, that the party was seized in fee of certain arable land, to which he had common appendant in the locus. See 4 H. 6.

13. a.

waste of the lord, not for a certain number of cattle, but for such only as are levant and couchant on the land, and therefore it cannot be severed, not even for a moment, nor turned into common in gross. The reason for common appendant appears to be this; that as the tenant would necessarily have occasion for cattle", not only to plough, but likewise to manure his own land, he must have some place to keep such cattle in, while the corn is growing on his own arable land; and therefore of right (if the lord had any waste) the tenant might put his cattle there, when they could not go on his own arable land; hence it is plain, that levancy and couchancy (7) are incident to common appendant", namely, that the tenant can only have a right of common for such cattle as are levant and couchant on his estate, that is, for such and so many as he has occasion for to plough and manure his land, in proportion to the quantity thereof (8). Common appendant, being of common right, may be apportioned, by alienation of part of the land to which the common is appendant; and if the land be divided ever so often P, each parcel of land is entitled to common appendant. Although the commoner purchases part of the land in which he is entitled to common, yet the common shall be apportioned, because common appendant is of common right'; but otherwise it is of common appurtenant'.

Common appurtenant is a right of common founded on a grant', or prescription", (which supposes a grant,) annexed to the enjoyment of land. This species of common may be granted for all manner of cattle, that is, not only for those which serve for the maintenance of the plough, and to manure the land, but for swine, goats, and the like; it may be granted for an unlimited number, or for a certain number of

m Bennett v. Reeve, Willes, 231. n 1 Roll. Abr. 328. 1. 1.

o 1 Inst. 122. a.

p Per Willes, C. J. Willes, 230, 231. q 8 Rep. 79. a.

r 1 Inst. 122. a.
s ib.

t Cro. Car. 482.
u 1 Inst. 122. a.
x Ib.

(7) Levancy and couchancy mean the possession of such land as will keep the cattle claimed to be commoned during the winter, and as many as the land will maintain during the winter, shall be said to be levant and couchant. Per Buller, J. in Scholes v. Hargreaves, 5 T. R. 48, 49. But see Rogers v. Benstead, post, tit. Evidence.

(8) "It is plain that a person cannot have a right of common appendant for cattle which he borrows, unless he make use of them all the year to plough or manure his land." Per Willes, C. J. in Bennet v. Reeve, Willes, 231, 2.

cattle. Where common appurtenant is granted for an unlimited number of cattle, the measure of profit which the commoner is to have, is, as in the case of common appendant, levancy, and couchancy; and, consequently, like common appendant, such common appurtenant cannot be converted into common in gross. But common appurtenant for a certain number of cattle may be granted over, and so become common in gross.

Common appurtenant may be granted at this day, and may be apportioned by a conveyance of part of the land to which the right is appurtenant (9).

Common appurtenant, as well as common appendant, may become extinct by unity of possession. And where common appurtenant has been extinguished by unity of possession, a new right of common is not created by a deed granting a messuage and land, with all common thereto belonging; although the occupiers of the tenement have used the common since the extinguishment. Otherwise, if the language of the deed had been, "all commons used therewith." Clements v. Lambert, 1 Taunt. 205. To an action of trespass defendant pleaded a prescriptive right of common for all his cattle, levant and couchant, upon a messuage, cum pertinentiis: on demurrer, it was insisted, that the prescription was not good, for the cattle could not be levant and couchant on a messuage. Holt, in support of the plea, contended, that a messuage comprehended a curtilage, which might be an acre or more, upon which the cattle might be levant and couchant; the court being of this opinion, adjudged the prescription to be good. In an action on the case for disturbing the plaintiff's right of common, it appeared that the plaintiff (who claimed the common in respect of a messuage for all commonable cattle, levaut and couchant,) was the owner of a small house, wherein he carried on the trade of a butcher. The house had neither land, curtilage, nor stable belonging

y 1 Rol. Abr. 398. (1) pl. 1 Drury v.
Kent, Cro. Jac. 15.

z Cowlam v. Slack, 15 East, 108.
a Adjudged, Hob. 235. 1 Inst. 122. a.

b Bradshaw v. Eyre, Cro. Eliz. 570.

c Scamler v. Johnson, T. Jon. 227. 2 Show. 248. S. C.

d Scholes v. Hargreaves, 5 T. R. 46.

(9) This point was determined also in Sacheverill v. Porter, Cro. Car. 482. where a right of common in a waste having been granted to A., (who was seised of lands in S.) and all his tenants in S., for all commonable cattle, and A. conveyed parcel of the lands in S.; it was holden, that the alienee was entitled to common for all his commonable cattle, levant and couchant, on the parcel of the lands conveyed.

to it, but under the shop-window was a sheep-hold, which would contain four or five sheep at a time, but neither horse nor bullock could be kept there: Lord Kenyon, C. J. at the trial, on the northern circuit, being of opinion, that levancy and couchancy was not proved, as the plaintiff had not shewn that he was in possession of land whereon the cattle might be levant and couchant, nonsuited the plaintiff. The court of B. R. afterwards concurred in opinion with the chief justice.

Common of pasture, without land, for a certain number of sheep may be parcel of a manor, and demised and demisable by copy of court-roll; and, if it be thus claimed in pleading by the lord of the manor, the plea will be good, although he does not describe the common as common appendant, appurtenant, or in gross, since it must be taken to be common appurtenant; for, not being claimed as incident to arable land, but to the manor, for a certain number of sheep in the soil of another, it cannot be common appendant; nor can it be taken to be common in gross, being stated in the plea to be parcel of a manor; then it must be common appurtenant, the only remaining sort of common. Common in gross is so called, because it does not appertain to any land, and it must be by grant or prescription.-This species of common may be granted for all manner of cattle, and for an unlimited number, or for a certain number of cattle. If granted for an unlimited number, it seems that the grantee may put on any number of cattle, provided he leaves sufficient common for the lord; if granted for a certain number, the enjoyment of the right is of course limited by the number specified in the grant. A corporation may prescribe for common in gross, for cattle levant and couchant within the town, but not for common in gross sans nombre. A right of common in gross is a tenement within the stat. 13 and 14 Car. 2. c. 12. s. 1. A copyholder who has common in a waste, without the manor of which his copyhold is parcel, has it annexed to the land, and not to his customary estate, and must prescribe in a que estate through his lord, for him and all his customary tenants thereof. And such common without the manor is not extinct by enfranchisement of the copyhold, though there be no words of re-grant. And after enfranchisement, the feoffee must prescribe in a que estate of his lord for himself and his customary tenants, till the time of the enfranchisement, and since that time for the feoffee and his heirs, as appurtenant to the enfranchised tenement1.

e Musgrave v. Cave, Willes, 319.

f Inst. 122. a.

g Mellor v. Spateman, 1 Saund. 343.

h R. v. Dersingham, 7 T. R. 671.

i Barwick v. Matthews, 5 Taunt. 365.

III. Of the Interest of the Owner of the Soil subject to Right of Common; and herein of Approvement and Inclo

sure.

In land subject to a right of common, the right of the lord or owner of the soil (10) ought to be so exercised as not to injure the right of common. But the right of the commoners may be subservient to the right of the lord in the soil, so that the lord may dig clay-pits there, or empower others to do so, without leaving sufficient herbage for the commoners, if it can be proved that such a right has been constantly exercised by the lord. So the lord may1, with the consent of the homage, grant part of the soil for building, if he has immemorially exercised such right. The immemorial exercise of such right by the lord is evidence that he reserved that right to himself, when he granted the right of common to the commoners. In like manner, there may be a valid custom in a manor, within the limits of an ancient forest belonging to the crown, for the lord, with the assent of the homage, to grant parcels of the waste to be holden by copy of court-roll, and for the grantees to inclose the same, and to hold them in severalty against the commoners, and in exclusion of their rights. If a commoner, having a right of common for one beast, put on two", the lord can only distrain the one put on last, unless they were both put on together; and it must be shewn in a plea (justifying the taking as a surcharge,) whether they were put on together or separately, and if the latter, which was put on first (11).

k Bateson v. Green, 5 T. R. 411.
1 Folkard v. Hemmett, 5 T. R. 417. n.
(a)

m Boulcot v. Winmill, 2 Campb. 261. n Ellis v. Rowles, Willes, 638.

(10) The customary tenants of a manor may allege a custom to have the sole and several pasture in the soil of the lord for the whole year, and thereby exclude the lord. Hoskins v. Robins, 2 Saund. 324. But even in this case the lord may distrain, for other damage in his soil, the cattle of any who have no right to put in their cattle, although he has not any interest in the soil. Per Hale, C. J. S. C. for he has an interest in the mines, trees, bushes, &c. Per Cur. 1 Vent. 164.

(11) In replevin for taking the plaintiff's sheep on Whitemanslie Down, the defendant avowed taking the cattle doing damage to his right of common; the plaintiff in his plea in bar claimed a right of common for himself as tenant of eight acres of land, for two sheep