monable beasts are either beasts of the plough, or such as manure the ground. This is a matter of most universal right: and it was originally permitted, (c) not only for the encouragement of agriculture, but for the necessity of the thing. For, when lords of manors granted out parcels of lands to tenants, for services either done or to be done, these tenants could not plough or manure the land without beasts: these beasts could not be sustained without pasture: and pasture could not be had but in the lords' wastes, and in the uninclosed fallow grounds of themselves and the other tenants. The law therefore annexed this right of common, as inseparably incident to the grant of the lands; and this was the original of common appendant: which obtains in Sweden, and the other northern kingdoms, much in the same manner as in England. (d) Common appurtenant ariseth from no connexion of tenure, nor from any absolute necessity: but may be annexed to lands in other lordships, (e) or extended to other beasts, besides such as are generally commonable; as hogs, goats, or the like, which neither plough nor manure the ground. This not arising from any natural propriety or necessity, like common appendant, is therefore not of general right; but can only be claimed by immemorial usage and prescription, (ƒ) which the law esteems sufficient proof of a special grant or agreement for this purpose. Common because of vicinage, or neighbourhood, 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 is indeed only a permissive right, intended to excuse what in strictness is a trespass in both, and to prevent a multiplicity of suits: and therefore either township may enclose and bar out the other, though they have intercommoned time out of mind. Neither hath any person of one town a right to put his beasts originally into the other's common: but if [ 34 ] they escape, and stray thither of themselves, the law winks at the trespass. (g) 20 Common in gross, or at large, is such as is neither appendant nor appurtenant to land, but is annexed to a man's person; being grant 19 c 2 Inst. 86. d Stiernh. de jure, Sueonum, 1. 2. c. 6. e Cro. Car. 482. 1 Jon. 397. (19) In 2 Wooddes. 78. this description as a definition of the right of common par cause de vicinage is objected to as being a descriptive example or illustration rather than a definition. The lords of the contiguous manors may enclose the adjacent waste. 4 Co. 38. C. Co. Litt. 122. a. 2 Mod. 105. But if an open passage be left between the two commons sufficient for an highway, then as the separation was not complete so as to prevent the cattle from straying from one to the other by means of the highway, the common by vicinage still continues. 13 East, 348. In case of open field lands, the owner of any particular spot, may by custom exclude the other from right of pasture there by enclosing his own land. 2 Wils. 269. Chitty. (20) Levancy and couchancy is not essential. 5 Taunt. 244. A right of common in gross, "as the going of two head of cattle on a common," is a tenement within the statute 13 & 14 Car. II., and a precipe will lie for it; and therefore a person renting such a right of the annual value of 101. thereby gains a settlement. 7 T. R. 671. 2 Nol. P. L. ch. 23. s. 2. As to cattlegates, (which are common in the north) they are not like common of pasture, for they are conveyed by lease and release, and must be devised according to the statute of frauds. The owners of them have a joint possession and a several inheritance. They have an interest in the soil itself, and a cattle-gate is a tenement within the 13 & 14 Car. II. c. 12. for the purpose of gaining a settlement. IT. R. 137. An ejectment will lie for a beast-gate in Suffolk, (signifying land and common for one beast) 2 Stra. 1084.; and so for a cattle-gate. 2 T. R. 452. 2 Stra. 1084. Rep. T. Hardw. 167. Sel. N. P. Ejectment, 3. note 8. If A. and all those whose estate he has in the manor of D. have had from time immemorial a fold-course, that is, common of pasture for any number of sheep not exceeding 300, in a certain field as appurtenant to the manor, he may grant over to another this fold-course, and so make it in gross, because the common is for a certain number, and by the prescription the sheep are not to be levant and couchant on the manor. 1 Rol. Ab. 402. pl. 3. Cro. Car. 432. Sir W. Jones, 375: Chitty. VOL. I. 53 ed to him and his heirs by deed; or it may be claimed by prescriptive right, as by a parson of a church, or the like corporation sole. This is a separate inheritance, entirely distinct from any landed property, and may be vested in one who has not a foot of ground in the manor. 21 22 All these species of pasturable common, may be and usually are limited as to number and time; but there are also commons without stint, and which last all the year. By the statute of Merton, however, and other subsequent statutes, (h) the lord of a manor may enclose so much of the waste as he pleases for tillage or woodground, provided he leaves common sufficient for such as are entitled thereto. This enclosure, when justifiable, is called in law, "approving ;" an ancient expression signifying the same as "improving." (i) 23 The lord hath the sole interest in the soil; but the interest of the lord and commoner, in the common, are looked upon in law as mutual. They may both bring actions for damage done, either against strangers, or each other; the lord for the public injury, and each commoner for his private damage. (k) 2, 3. Common of piscary is a liberty of fishing in another man's water; as common of turbary is a liberty of digging turf upon another's ground. (?) There is also a common of digging for coals, minerals, stones, and the like. All these bear a resemblance to common of pasture in many respects: though in one point they go much further; common of pasture being only a right of feeding on the herbage and vesture of the soil, which renews an h 20 Hen. III. c. 4. 29 Geo. II. c. $6. and 31 Geo. II. c. 41. 1 Co. Litt. 122. (21) Common appendant and appurtenant are limited as to the number of cattle either to an express number or by levancy and couchancy, sometimes termed common without number. Willes, 232. By common without number, is not meant common for any number of beasts which the commoner shall think fit to put into the common, but it is limited to his own commonable cattle levant and couchant upon his land (by which is to be understood as many cattle as the produce of the land of the commoner in the summer and autumn, can keep and maintain in the winter.) And as it is uncertain how many in number these may be, there being in some years more than in others, it is therefore called common without number, as contradistinguished from common limited to a certain number, but still it is a common certain in its nature. (2 Brownl. 101. 1 Vent. 54. 5 T. R. 48. 1 Bar. & Ald. 706. Rogers v. Benstead, Selw. Ni. Pri. tit. Common.) Therefore a plea, prescribing for common appurtenant to land for commonable cattle, without saying levant and couchant, is bad. 1 Saund. 28. b id $43. For it shall be intended common without number, according to the strict import of the words, without any limitation whatsoever; for there is nothing to limit it when it is not said for cattle levant and couchant. 1 Rol. Abr. 398. pl. 3. Hard. 117, 118. 2 Saund. 346. note (1). 8 Term. Rep. 396. From hence it follows, that where the common is limited to a certain number, it is not necessary to aver that they were levant and couchant, 1 Rol. Abr. 401. pl. 3. Cro. Jac. 27. 2 Mod. 185. 1 Lord Raym. 726.; because it is no prejudice to the owner of the soil, as the number is ascertained. Chitty. (22) The notion of this species of common is exploded: a right of common without stint cannot exist in law. Bennet v. Reeve, Willes, 232. 8 T. R. 396. Chitty. (23) See Com. Dig. Common; Selw. N P. Common. Any person, who is seised in fee of part of a waste, may approve, besides the lord of the manor, provided he leaves a sufficiency of common for the tenants of the manor, but not otherwise, without consent of homage, 1 Stark. 102. 3 T. R 445. It seemed to have been generally understood that the lord could not approve, where the coin. moners had a right of turbary, piscary, of digging sand, or taking any species of estovers upon the common. 2 T. R. 391 But it is now decided agreeably to the general principles of the subject, that where the tenants have such rights they will not hinder the lord from enclosing against the common of pasture, if sufficient be left, for this is a right quite distinct from the others; but if by such enclosure the tenants are interrupted in the enjoyment of their rights of turbary, piscary, &c. then the lord cannot justify the approvement in prejudice of these rights. 6 T. K. 741. Willes, 57. The right of the commoners to the pasturage may be subservient to the right of the lord; for if the lord has immemorially built houses or dug clay-pits upon the common without regard to the extent of the herbage, the immemorial exercise of such acts is evidence that the lord reserved that right to himself, when he granted the right of pasturage to the commoners. 5 T. R. 411. If a lord of a nanor plant trees upon a common, a commoner has no right to cut them down. His remedy is only by an action. 6 T. R. 483. Christian. nually; but common of turbary, and those aforementioned, are a right of carrying away the very soil itself. 4. Common of estovers or estouviers, that is, necessaries (from estoffer, to furnish), is a liberty of taking necessary wood, for the use or furniture of a house or farm, from off another's estate. The Saxon word, [35] bote, is used by us as synonymous to the French estovers: and therefore house-bote is a sufficient allowance of wood, to repair, or to burn in, the house which latter is sometimes called fire-bote: plough-bote and cart-bote are wood to be employed in making and repairing all instruments of husbandry; and hay-bote, or hedge-bote, is wood for repairing of hays, hedges, or fences. These botes or estovers must be reasonable ones; and such any tenant or lessee may take off the land let or demised to him, without waiting for any leave, assignment, or appointment of the lessor, unless he be restrained by special covenant to the contrary. (m) These several species of commons do all originally result from the same necessity as common of pasture; viz. for the maintenance and carrying on of husbandry; common of piscary being given for the sustenance of the tenant's family; common of turbary and fire-bote for his fuel; and housebote, plough-bote, cart-bote, and hedge-bote, for repairing his house, his instruments of tillage, and the necessary fences of his grounds. 21 IV. A fourth species of incorporeal hereditaments is that of ways: or the right of going over another man's ground. I speak not here of the m Co. Litt. 41. (24) The remedies for disturbance and injuries to rights of common are treated of post, 3 vol. 237. (25) As to highways in general, see Com. Dig. tit. Chimin; Bac. Ab. Highways; Burn J. Highways; Selw. N. P. Trespass, iv. 7.; Saunders by Patterson, index, Ways; Bateman's Turnpike Acts; 3 Chitty's Crim. L. 565 to 668. A highway may be created by the owner in fee dedicating it to the public, and even less than twenty years user may perfect the right. 11 East, 376. 1 Campb. 260. 4 Campb. 16. 5 Taunt. 125. 2 Saund. by Patterson, 175 e. n. e. But the erection of a bar or fence, in the middle or at one end, so as to prevent a thoroughfare, although it may have been knocked down, rebuts the presumption and negatives the dedication. Id. ibid. And a street made or permitted by a tenant, even for ninety-nine years, may be stopped up by the owner in fee, at the expiration of the term. 5 Bar. & Ald. 454. In case of a public way, any person who has land immediately adjoining, may make an opening through his fence into the road in any part of it, but in a private road the party entitled to use it must go in at the usual path. Per Chambre, J. in 5 Taunt. 132. Under the 13 Geo. III. c. 78. s. 19. which enables magistrates to divert an old road so as to make it nearer or more commodious to the public, it has been held, that a new way must be made in lieu of the old one to be stopped up. 8 East, 394. 3 M. & S. 459. But if a new road is substituted, partly over a new line and partly over an accustomed road, that is a sufficient compliance with the act, provided the new road convey the public to the same place as the old one did. 5 Taunt. 634. 1 Marsh. 261. And by the 55 Geo. III. c. 68. s. 2. two or more justices may stop up and sell any highway that shall appear to them to be unnecessary; but the order for that purpose must be made at a special sessions, and that fact must appear on the face of the order. S Bar. & A. 414. The commissioners under local enclosure acts generally have power to stop up such ways as they may think fit; but where such ways lead in part through old enclosures, it seems that they must have the concurrence of two or more justices. 41 Geo. III. c. 109. U. K. 9. 9 Price, 58. Burton and Logan, K. B. Tr. T. 1825. With respect to private ways, see in general Com. Dig. Chimin, D. Bac. Ab. Highways, C. Selw. N. P. Trespass, iv. 7. 1 Saunders by Patterson, 323, note 6. id. index. Ways. A private way may be claimed by grant, prescription, custom, of necessity, by express reservation, or by virtue of an enclosure act. By grant, as if A. grant that B. shall have a way from L. to M. through a close belonging to A.; so a covenant that B. shall enjoy such a way is equivalent to a grant. 3 Lev. 305. Com. Dig. Chimin, D. 3. So if A. seised of two acres, to which a way is appurtenant, grants one acre with all ways, &c. the way shall be granted. 6 Mod. 3. Plowd. 170. 1 B & P. 376. So if a way be appurtenant to land, by a lease of the land, the way passes to the lessee without an express grant. Cro. Jac. 190. So if a man seised of close B. and close W. uses a way through W. to B, and afterwards conveys B. with all ways, &c. this way through W. shall pass to the grantee. 6 Mod. 3. And though no way or other easement can in strictness subsist on land of which there is unity of seisin, yet if a lessor having used convenient ways over his own adjoining land during THE RIGHTS Воок 2. king's highways, which lead from town to town; nor yet of common ways, leading from a village into the fields; but of private ways, in which a par his occupation demises premises "with all ways and easements to the said premises lelonging Unity of seisin, as well of the land to which the way belongs, as of the close over which the way passes, extinguishes a prescriptive right, because the minor right of way, common, or other easement, being vested in the owner of the soil, merges in the higher right; and it would be absurd for him who has the absolute and entire enjoyment of the soil to claim, by prescription, a right of way or other easement over it. See Com. Dig. Suspension, B. Vin. Ab. Extinguishment, C. 1 East, 377. This unity of seisin is frequently termed "unity of possession," but improperly so, because the mere circumstance of the same person being in possession of both, without being seised in fee, will not have the same operation, for then it merely suspends, and does not extinguish the right. Thus if a man hath right of common by prescription, and taketh a lease of the land for twenty years, whereby the common is suspended, after the years ended he may claim the common generally by prescription, for the suspension was but to the possession, and not to the right, and the inheritance of the common did always remain. Co. Litt. 114. b. Vin. Ab. Extinguishment, C. pl. 32. There is however a distinction between rights which are of necessity, and those which are merely by way of easement; the former are not destroyed by unity of seisin, as a way to a church or market, 1 Rol. Ab. Extinguishment, 936. b. 1. Poph 172. 3 Bulst. 340. Noy, 84. or a gutter carried through an adjoining tenement, 11 H. 7. 25. or a watercourse running over the adjoining lands, Poph. 166. Latch. 153. 3 Bulst. 340. Palm. 446.: another reason assigned is because it hath its being not by prescription, but ex jure naturæ. 1 Bos. & P. 374. n. a. Vin. Ab. Extinguishment, C. When there is reason to apprehend that it may appear in evidence, that there was at some time since the beginning of the reign of Richard the First, a unity of seisin which would defeat the claim of a way, &c. by prescription, it is then advisable to claim the way and plead it by way of non-existing grant. 3 East, 294. 1 Saund. 325. a. 2 Saund. 175. a. And the proper course is to ascertain who were the respective owners in fee of the land to which the way belongs, and of the land over which it passes, upwards of twenty years before the trespass, and to plead the fictitious grant from one to the other, for it will not suffice to plead the supposed grant without stating the date and names of the supposed grantor and grantee. 10 East, 55. See form of plea, 3 Chitty on Pl. 4 ed. 1122. As to the mode of using a way by grant, it has been held, that under the grant of a free and convenient way for the purpose of carrying coals, the grantee has a right to lay a framed waggon way, and under a grant of a way from A. in, through, and along a particular way, the grantee is not justified in making a traverse road across the same. 1 Term R. 560.; and under a grant to B. the occupier of a house, of a liberty to use adjoining land, as a foot or carriage way, with all other liberties, powers, and authorities, incident or appurtenant, needful or necessary, to the enjoyment of the way, it was held that B. had a right to put a flag-stone on this land in front of a door opened by him out of his house into this piece of land, 2 New. R, 109.; and if A. grant to B. land of unequal width, described as abutting on a road on his own soil, and in parts there was a narrow ship of land intervening, the grantee has a right to come out into the mad over this slip of land, 1 Tanot 495 though in general a private way can only be used at the usual opening. 5 Taunt. 132. If a person has a way through a close in a particular direction, and he afterwards purchases other closes adjoining, he cannot extend the way to those closes. 1 Rol. 391. 1. 50. 1 Mod. 190 The right to repair a way by grant is an incident, 1 Saund. 333. 322. a. n. 3. 2 Saund 114. a. 2 New. R. 109.; but if the grantor be bound to repair by express stipulation, he may be sued for the neglect. 1 Saund. 322. a. Com. Dig. Chimin. D. 6. A person having a private way over the land of another, cannot, when the way has become impassable, even by the overflowing of a river, justify going on the adjoining land, although such land, together with that over which the way passes, both belong to the grantor of the way, unless the owner of the land was by express contract bound to repair the way and neglected to do so. Highways are governed by a different principle; they are for the public service, and if the usual track is impassable, it is for the general good that people should be entitled to pass on another line. Taylor v. Whitehead, Dougl. 744. 4 M. & S. 387. But if the owner of a close obstruct or plough up the way, and especially if he set out a new one, the person entitled to the way may use the new one until the old one is restored, but no longer. Yelv. 141. Willes, 282. Prescription, which supposes a grant before time of legal memory, is the most usual mode of claiming a private way. The instance in the text of a right of way for all inhabitants is more properly a way by custom. Inessaage or close, claims that he and all those whose estate he hath in the same, have, from time A way by prescription is where a person, who is seised in fee of a ticular man may have an interest and a right, though another be owner of the soil. This may be granted on a special permission; as when the own immemorial, had a carriage-way, foot-way, &c. from the same into some highway, &c. over the land of another. A right of way being an easement merely, and not an interest, it is not proper to lay the way as appendant or appurtenant. It is otherwise of a common, for that is an interest, and may be of several natures, appurtenant, appendant, or in gross; but a way cannot be so. Yelv. 159. 1 Bulst. 47. Alleging a seisin in fee virtually includes an occupation, unless the contrary be shewn; and therefore, when the owner in fee prescribes, he need only allege that he was seised, without stating that he was possessed. 4 M & S. 392. 16 East, $43. A person who is a particular tenant, as tenant for years under a person who is entitled to a way by prescription, must, in pleading, set forth the seisin in fee, the prescription, and the demise from the tenant in fee. Salk. 562. Carth. 445. Ld. Raym 331. 3 Wils. 72. Twenty years uninterrupted user of a way is prima facie evidence of a prescriptive right, and should be so pleaded; though if there be reason to apprehend that there has been an unity of seisin, then a plea of way by grant should be added. 1 Saund. 323, a. A claim of a prescriptive way from A. over the defendant's close unto D. is not supported by proof that a close called C. over which the way once led and which adjoins D., was formerly possessed by the owner of A., and was by him conveyed in fee to another person without reserving the right of way, for thereby it appears that the prescriptive right of way does not, as claimed, extend unto D., but stops short at C., 1 East, 377.; but if the claim had been for a prescriptive way over the close towards D. it would have sufficed. Id. ibid. So where in trespass the defendant prescribed for a way from his own close over the locus in quo to and unto a certain highway, &c. it was holden that such plea was sustained, though it appeared that one out of several intervening closes, was in possession of the defendant himself, for the party had a right to go the whole length of way, and the prescription to and unto was proved. Jackson v. Shillito, 1 East, 381, 2. Palm. 588. 2 Rol. R. 398. Bac. Ab. Highways, C. A person may prescribe for a private way in the same line as a public way. 8 East, 4. 6. Noy, 9. The prescription must be for a way, and not a passage, which is properly over water and not land, and a party ought to observe the usual words, and those which are known in the law as a prescription and usage for a way, and not for a passage. Yelv. 169. It must also be shown what manner of way it is, as whether on foot or horse, or cart-way, Yelv. 164.; though in stating a public way it is otherwise, 8 East, 4. R. T. Hardw. 315. and the termini from, and to which the way leads must be stated, Yelv. 164. though it is otherwise in pleading highways. 1 Hen. B. 355. It is better to lay the prescription so as only to cover the trespass complained of, for the proof of a prescriptive way for all purposes will not negative a plea claiming a way only on foot. Fount ain v. Cook, Selw. N. P. Trespass, iv. 7. 1 Chitty on Pl. 4 ed. 328. And evidence of a prescriptive right of way for all manner of carriages, does not necessarily prove a right of way for all manner of cattle, though in many cases it would justify a jury in finding it. 1 Taunt. 279. A way by custom-As that every inhabitant of such a vill shall have a way over such land, either to church or to market, is valid, because it is but an easement and not a profit. Cro. Jac. Cro. Car. 419. 2 Hen. Bla. 393. Bac. Ab. Highways, A. 152. A way of necessity, when the nature of it is considered, will be found to be nothing else but a way by grant. It derives its origin from a grant, for there seems to be no difference where a thing is granted by express words, and where by operation of law it pass as incident to the grant; and of course it is as necessary to set forth the title to a way of necessity as it is to a way by express grant. 2 Lutw. 1487. 1 Saand. 323. a. And it follows that there cannot exist, in point of law, a general way of necessity without specifying the manner whereby the land, over which the way is claimed, became charged with the burden. 4 M. & S. 387. 1 Saund. 323. 323 a note 6. Where a man, having a close surrounded with his own land, grants the close to another in fee for life or years, the grantee shall have a way to the close over the grantor's land as incident to the grant, for without it he cannot derive any benefit from the grant; so it is where he grants the land and reserves the close to himself. 2 Rol. Ab. 60. pl. 17, 18. Cro. J. 170. Owen, 122. 6 Mod. 3. 8 T. R. 56. Willes, 72, 3. note 6. If the origin of a way of necessity cannot any longer be traced, but the way has been used without interruption, it must then be claimed as a way either by grant or prescription. 1 Saund. 323. a. note 6. The proper mode of pleading is to state that the same person was seised in fee of both closes simul et semel, and being so seised, he granted one of them. 1 Saund. 323. a. note 6. See form, 3 Chitty on Pl. 1125 4th ed. It has been considered, that a way of necessity is not extinguished by unity of seisin, 5 Taunt. 311. 1 Saund. 323 a. ; but it hath since been held, that such a way is limited by the necessity which created it, and ceases if at any subsequent period the party entitled to it can approach the place to which it led by passing over his own land. Holmes v Gorley, 2 Bingh. 76. A rector or other tithe owner is entitled without express grant, and, as a matter of necessity, to make use of the road ordinarily used for the usual occupation of the close in which the tithe is taken, 2 New. R. 463. 1 Bulst 108.; but he cannot justify carrying his tithes home by any other road, although the farmer himself may have used it for the more convenient occupation of his farm. Id. ibid. 1 Saund. 323. a. b. 323. b. a. (i). See form of plea, 3 Chitty on Pl. 1128. By express reservation a right of way may be secured, as where A. grants land to another, re |