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 EIGHTS OF COMMON 
 
 AND 
 
 OTHEK PRESCRirXIVE RIGHTS. 
 
 ^^9;iV^
 
 EIGHTS OF COMMON 
 
 OTHER PRESCRIPTIVE RIGHTS; 
 
 DELIVERED IN GRAY'S INN HALL 
 
 IN THE YEAE 
 
 1877. 
 
 i 
 
 BY 
 
 JOSHUA WILLIAMS, Esq., 
 
 OF Lincoln's inn, one of her majesty's counsel, 
 
 PROFESSOR OF THE LAW OF REAL AND PERSONAL PROPERTY TO THE COUNCIL OF LEGAL EDUCATION. 
 
 LONDON: 
 
 H. SWEET, 3, CHANCERY LANE, 
 
 C. F. MAXWELL, MELBOUBNE AND SYDNEY. 
 1880.
 
 T 
 
 \U0 
 
 LONDON : 
 FEINTED BY C. F. EOWOETH, BREAJl's BUILDINGS, CHANCEEY LANE, E.G.
 
 PREFACE. 
 
 These Lectures are many of them printed nearly 
 verbatim as tliey were delivered. But the Author 
 has not scrupled to amend where necessary. In 
 some cases the law has been modified by recent 
 decisions. In these cases the text has been altered 
 in accordance with the altered state of the law. 
 In making these amendments and alterations, 
 and in the preparation of these Lectures for the 
 press, the Author has received valuable assist- 
 ance from his son, Mr. T. Cyprian Williams, 
 of Lincoln's Inn, barrister-at-law, to whom also 
 he is indebted for the Index. 
 
 7, Stone Buildings, Lincoln's Inn, 
 Ith February, 1880. 
 
 i\t^(\
 
 ( vii ) 
 
 TABLE OF CONTENTS. 
 
 Lecture I. 
 
 PAGE 
 
 Prescriptive Eights. — Difference between Prescription and 
 Custom. — No Prescription for Land. — Tenants in Com- 
 mon.— No Prescription for Things not had without 
 Eecord. — -All Things presumed to be rightly done. — 
 Prescription implies a Grant. — Legal Memory. — 1st 
 Richard I. — Proof of Prescription. — Bex v. Joliffe, 2 B. & 
 C. oi.—Addi7igt(m v. Clode, 2 Sir Wm. Black. 989.— 
 Prescription of Enjoyment by a Man and his Ancestors. — 
 Welcome v. Upton, 6 M. & W. 536. — Several Pasture. — 
 Shuttleworth v. Le Fleming, 19 C. B., N. S. 687. — Corpora- 
 tions. — Johnson v. Barnes, L. P., 7 C. P. 592; 8 C. P. 
 527. — Inhabitants cannot prescribe for Common. — Oate- 
 ward's case, 6 Rep. 59. — Tenants and Inhabitants . . 1 
 
 Lecture II. 
 Que Estate. — Prescription in Name of Tenant of Fee. — Gate- 
 ward's case, 6 Rep. 60 a.— Copyholder, custom. — Profit a 
 prendre. — Dominant Tenement, Servient Tenement. — 
 Several Vesture or Herbage, Thorns, Prima tonsura, 
 may be held by Copy of Court Roll. — Sole or several 
 Pasture. — Potter \. North, 1 Wms. Saund. 347. — Hoskins 
 V. Bobins, 2 Wms. Saund. 323. — Jones v. Bichards, 6 A. & 
 E. 530. — ■ PoUexfen's Report of HosMns v. Bobins, Pol- 
 lexfen, pp. 13— 23.— Oox v. Glue, 5 C. B. 533.— Coa; v. 
 MousUy, ibid. — Rights of several Herbage and Pasture, 
 though Tenements, are not corporeal . . . .16 
 
 Lecture III. 
 Common of Pasture. — Common Appendant. — Commonable 
 Cattle. — Evidence of Enjoyment. — Manifold v. Penniny-
 
 Vlll TABLE OF CONTENTS. 
 
 PAGE 
 
 ton, 4 B. & C. 161. — Levant and Couchant. — Arable 
 Land.— Carr v. Lambert, 3 H. & Colt. 499; L. E., 1 Ex. 
 168. — Messuage — Land built over. — Common Appendant is 
 of Common Eight. — Earl Dunraven v. Llewellyn, 15 Q. B. 
 791.— Explained by Sir E. Pahner, L. E., 10 Eq. 119.— 
 Origin of Common Appendant. — Tyrringham^s case, 4 Eep. 
 38. — Vills. — Sir Henry Maine on Village Communities. — 
 Importance of Yills. — The Statute of Additions, 1 Hen. V. 
 c. 5. — Gibson v. Clark, 1 Jac. & W. 159. — Stork v. l<'ox, 
 Cro. Jac. 120. — A Till has or had a Church; a Constable. 
 — Blackstono's Account of Vills 31 
 
 Lecture IV. 
 
 Common of Pasture belonging to .Vills. — Bracton's form of 
 "Writ of Novel Disseisin. — Form in Fitzherbert's Natura 
 Brevium. — Bracton's Form of Writ of Admeasurement of 
 Pasture. — Explanation of Note to Fitzherbert's Natura 
 Brevium. — Ilollingshead v. Walton, 7 East, 492. — Year 
 Books, U Hen. VII. 14 a, 21 Hen. VII. 40 \>.— Corbet's 
 case, 7 Eep. 5G; Vin. Abr. Common (K), par. 9 — 14; Com. 
 Dig. Common (E); Blackstone's Com. Vol. 2, c. 3, p. 33; 
 Co. Litt. 110 h.—Ellard v. Hill, Sid. 22Q.— Pate v. Brown- 
 low, 1 Keb. 876.— Lord of a ViU.— Stat. 27 Hen. VIII. 
 c. 6, s. 5. — Forest of Bemewood.-r/« re Hainault Forest 
 Act, 9 C. B.,N. S. 648. — Commissioners of Sewers v. Olasse, 
 L. E., 19 Eq. 134.— Forest Marks mentioned in Stat. 27 
 Hen. 8, c. 7, also in Fitzherbert's Surveying . . .44 
 
 Lecture V. 
 Village Communities.- Stubb's Constitutional History, Vol. 1, 
 pp. 48— 51.— The Mark System.— The Village Court.— 
 Kemble's Saxons in England, Vol. 1, c. 2. — Meaning of 
 word " mark."— Court of the Marksmen.— Milman's 
 Political Geography of Wales.— The Marches of Mercia 
 and Wales.— Olfa's Dyke.— Marches formerly no Parcel 
 of any Shires.— Stat. 27 Hon. VIII. c. 26.— Common 
 fields.- Common Cultivation. — Common of Shack. — Sir 
 Miles Corbet's case, 7 Eep. 5.— Fitzherbert's Proposal for 
 Enclosure of Common Fields 57
 
 table of contents. ix 
 
 Lecture VI. 
 
 PAGE 
 
 Custom to enclose Common Field Land. — Cheeseinan v. Hard- 
 ing, 1 B. & A. 712. — Sir Miles Corbefs case, 1 Eep. 5. — 
 Barker v. Dixon, 1 Wils. 44. — Iloiue v. Strode, 2 Wils. 
 269.— Stat. 24 Geo. II. c. 23, s. 5.— Stat. 13 Geo. III. 
 c. 81, Eegulation of Common Fields ; Field Eeeves. — 
 Exchange of Lands in ^Common Fields; Stat. 4 & 5 
 "Will. IV. c. 30.— Inclosure of Common Fields ; Stat. 6 & 
 7 Will. IV. c. 115; Stat. 3 & 4 Vict. c. 31.— General 
 Inclosure Act, Stat. 8 & 9 Vict. c. 118, s. 11. — Common 
 Meadows. — Lot Meads. — Livery of Seisin of Lot Meads. — 
 Lammas Meadows. — OiDening and shutting of Common 
 Pastui-es. — Cattle or Beast Gates. — Bex v. Inhahitants of 
 WMxley, 1 T. Rep. 137. — Earl of Lonsdale y. Bigg, 11 Ex. 
 6o4 ; 1 H. & N. 923 71 
 
 Lecture VII. 
 The Vill of Aston and Hamlet of Coate, Oxon. — A Hide. — Yard 
 Land. — Customs of the Town — Archgeologia, Vol. 35, 
 p. 472.— Marks— Archseologia, Vol. 37, p. 383; Vol. 33, 
 p. 275. — Allotment of Common Meadows. — Duties of 
 Grass Stewards — Lot Meads — Hams. — The Lord's attempt 
 to destroy the Custom. — Case for Opinion of Sir O. Bridg- 
 man. — Warden of the Fleet. — 12 Jur., N. S., pt. 2, p. 103. 
 — The Lord submits to the Custom. — Sir H. Maine on 
 Village Communities, Lecture IV. — Customs as to Trades. 86 
 
 Lecture VIII. 
 Statute of Merton, 20 Hen. III. c. 4. — Coke's Commentary, 2 
 Inst. pt. 1, p. 85. — Bracton, Book 4, c. 38, par. 17 — Whether 
 Statute of Merton was in affirmance of the Common Law. 
 — Procter v. MaUorie, 1 Eolle, 365. — Inclosure of j^art 
 approved. — Statute of Westminster the Second. — Mis- 
 translation of this Statute. — Stat. 3 & 4 Edw. VI. c. 3. — 
 Bracton, Book 4, c. 38, par. 17. — Glover v. Lane, 3 T. Eep. 
 445. — Statutes do not extend to Common in Gross; ex- 
 tend to Common Appurtenant. — Windmill, &c. — Necessary 
 Curtilage.— 32 Ass., par. 5.— Patrick v. Stubbs, 9 M. & W. 
 330. — Adjacent Towns 103
 
 X TABLE OF CONTENTS. 
 
 Lecture IX. 
 
 PAGE 
 
 Notice of intended Inclosure to be given. — Onus on Lord to 
 prove Sufficiency. — Arhtt v. Ellis, 7 B. & C. 369. — Belts 
 V. Thompson, L. R., 6 Ch. 723, 74L — Proof of Sufficiency. 
 — Lake v. Plaxton, 10 Ex. 196; doubted in The Commis- 
 sioners of Servers v. Glasse, L. E., 19 Eq. 134. — LasccUes v. 
 Lord Onslow, L. E., 2 Q. B. Div. 433. — Musgrave v. In- 
 closure Commissioners, L. E., 9 Q. B. 162. — Writ of Ad- 
 measurement of Pasture. — Rohinson v. Duleej:) Singh, L. E., 
 11 Ch. Div. 798. — Eemcdies for sui'cliarge, distress, tres- 
 pass, case. — Copyholders. — Lord may approve. — Shake- 
 spear V. Peppin, 6 T. Eep. 741. — Grant of Part of Waste 
 as Copybold. — Custom to Grrant at Pleasure Void. — Custom 
 Good leaving Sufficiency.— ^rZe« v. Ellis, 7 B. & C. 346. 
 Custom to grant with Consent of Homage. — The Homage. 
 — Duherley v. Puge, 2 T. Eep. 391, 392. — Custom as set 
 out in the Pleadings did not prevent Lord's Eight to 
 approve. — Lord Northwick v. Starnoay, 3 B. & Pul. 346. 
 — Customs to inclose with Consent of Homage. — Stepney. 
 — Lady Wentworth v. Clay, Cas. temp. Finch, 263. — 
 Hampstead. — Homage can only bind Tenants of Manor. — 
 Boidcott V. Winmill, 2 Camp. 259, overruled in Commis- 
 sioners of Seivers V. Glasse, L. E., 19 Eq. 134. — Lascelles v. 
 Lord Onslow, L. C, 2 Q. B. Div. 433.— Whether Copy- 
 holder Grantee of Waste is entitled to Common. — Bracton. 
 Lord Northivick v. Starnoay, 3 B. & P. MQ.—Swayne's 
 Case, 8 Eep. 63 118 
 
 Lectuee X. 
 Commoner may break down Fence if Common insufficient. — 
 Arlett V. Ellis, 7 B. & C. 3i6.— Smith v. East Broivnlow, 
 L. E., 9 Eq. 241.— Statute of Morton extends only to 
 Common of Pasture. — Faivcett v. Strickland, Willcs, o7; 2 
 Com. 578. — Shakespear v. I^cppin, 6 T. Eep. 741; Buberley 
 v. Page, 2 T. Eep. 291.— Pica of Eight to take Gravel in 
 that Case. — Grant v. Gunner, 1 Taunt. 435. — Lord cannot 
 approve against Common of Invhaxy .—Peardon v. Under- 
 hilt, 16 Q. B. 120. — Land must produce or be capable of 
 producing Turf or Fuel.— Lord may by Custom approve 
 against Turbary, &c., leaving Sufficiency.- ^/7t'<« v. Ellis, 
 7 15. (ft ( '. li-lC).— Lascelles v. Lord Onslow, L. E., 2 Q. B. Div.
 
 TABLE OF CONTENTS. XI 
 
 PAGE 
 433. — Stat. 22 Edw. IV. c. 7. — Sir Francis Barrirujtoii's 
 case, 8 Eep. 136.— Stat. 35 Hen. VIII. c. 17.— Stat. 29 
 Geo. II. c. 36. — Inclosure for planting Trees. — Stat. 31 
 Geo. II. c. 41.— Power to lease Twelftli Part of Wastes.— 
 Stat. 13 Geo. 3, c. 81.— Stat. 43 Eliz. c. 2, s. 5.— Inclosure 
 tor nabitatious of Poor.— Stat. 51 Geo. III. c. 115, s. 2.— 
 Village Greens. — Furhes v. Ecclesiastical Commissioners, 
 L. E., 15 Eq. 51. — Custom to hold Lawful Sports. — Hall 
 V. Nottingham, L. R., 1 Ex. D. 1.— Gift of Site for School. 135 
 
 Lecture XL 
 Lord's Right to put Cattle on the Waste. — In case of Inclosure, 
 Lord has a Eight to Allotment. — Arundell v. Viscount 
 Falmouth, 2 M. & S. 440. — Musyrave v. Inclosure Com- 
 missioners, L. R., 9 Q. B. 162. — Driving the Common. — 
 Estrays. — Planting Trees. — Rabbit Burrows. — Gravel, &c. 
 — Onus on Commoner. — Bateson v. Green, 5 T. Eep. 411. — 
 Sporting. — Encroachments. — Spencer v. Smith, Exchequer 
 and in Court of Appeal, 36 L. T., N. S. 168.— Com- 
 moner barred after Twenty Years; now after Twelve Years, 
 stat. 37 & 38 Vict. c. 57 .—Tyrivhitt v. Wi/nne, 2 B. & A. 
 554. — Att.-Oen. v. Reveley, unreported. — Appropriation 
 by Tenants of Part of Common. — Hall v. Byron, 25 W. E. 
 317 ; L. E., 4 Ch. Div. 667.— Stints.— ^ZtonZ v. Hill, Sid. 
 226. — Morse and Webb's case, 13 Eep. 33. — No Common for 
 very small Parcel. — Epping Forest. — Pcdmer v. Stone, 2 
 Wils. 96.— i^ox V. Amhurst, L. E., 20 Eq. i08.— Hall v. 
 Byron. — Presentments by Homage. — Arundell v. Viscount 
 Falmouth, 2 M. & S. iiO.— Chapman v. Coivlan, 13 East, 
 10. — Bill of Peace. — Poivell v. Earl Povns, 1 You. & Jerv. 
 159. — Smith v. Earl Brownlow, L. E., 9 Eq. 241. — War- 
 rich V. Queen's College, L. E., 10 Eq. 105; 6 Ch. 716.— 
 Bttts V. Thompson, L. E., 6 Ch. 732. — Commissioners of 
 Sewers v. Glasse, L. E., 19 Eq. 134; 7 Ch. 456. — Eelease. 
 — Abandonment. — Apportionment . . . . .150 
 
 Lectuee XII. 
 Common Appurtenant. — Donkeys, Goats, Swine, Geese. — 
 Pannage. — Grant. — Appurtenants pass by Conveyance of 
 Tenement. — Creation of Common Appurtenant by Grant.
 
 XU TAHLE OF CONTENTS. 
 
 I'AGE 
 
 — Bradshaiv v. Eyre, Cro. Eliz. 570. — Worldly v. Kimjswel, 
 Cro. Eliz. 794. — Copyholder enfranchising. — Lost Grant. 
 — Cowlam V. Slack, 15 East, 108. — Tho Prescription Act, 
 stat. 2 & 3 Will. IV. c. 71, sects. 1, 4, 5, 6, 7.— Claim must 
 be lawful. — Mill v. The Commissioners of New Forest, 18 
 C. B. 60.— Att.-Gen. v. Mathias, 4 K. & J. 579.— User 
 must be by Person claiming Eight. — Warburto7i v. Parke, 
 2 H. & N. 64. — User over Part. — Cesser of User. — Carr v. 
 Foster, 3 Q. B. oSl.—Lowe v. Carpenter, G Ex. 825.— 
 Lord St. Leonards on Loive v. Carpenter, E. P. Stats. 
 177, 2nd ed. — Bailey v. Appleyard, 8 A. & E. 161. — 
 Next before some action. — Richards v. Fry, 7 A. & E. 
 698.— TTard v. RoUns, 15 M. & W. 237, 2-i2.—Fliyht v. 
 Thomas, 8 CI. & Fin. 231. — Acquiescence. — Bennison v. 
 Cartwriyht, 5 B. & S. 1. — Extinguishment of Common 
 Appurtenant. — Tyrringham' s case, 4 Eop. 38. — Apportion- 
 ment of Common Appm-tenant. — Common by reason of 
 Vicinage. — Commissioners of Sewers v. Glasse, L. E., 19 Eq. 
 159-162. — Common in Gross 168 
 
 Lecture XIII. 
 Common of other matters than Pasture : First, Things Ee- 
 newable ; Secondly, Things not Eenewable. — Common of 
 Estovers. — Ancient House. — LuttrelVs case, 4 Eep. 86, 87. 
 Coster and Wingfield's case, 2 Leo. 44, 45. — Common of 
 Turbary. — Clarkson v. Woodhouse, 5 T. Eep. 412, n. — Moss 
 dales. — Fodder, litter, &c. — Smith v. Earl Broiurdotv, 
 L. E., 9 Eq. 241. — Pannage. — Cutting Brackens. — 
 Ilollingshead v. Walton, 7 East, 485. — Warrick v. Queen^s 
 College, L. E., 6 Ch. 716. — Claims must be Eeasonable. — 
 Wilson V. Willes, 7 East, 121. — Must bo spent upon tho 
 Teuement. — Valentine v. Penny, Noy, 145. — Ilayward v. 
 Cannington, 2 Kob. 290, 311; Sid. 354; 1 Lev. 231.— 
 Bailey v. Stephens, 12 C. B., N. S. 21. — Claim of profit 
 d prendre cannot bo made by custom. — Selhy v. Robinson, 
 2 T. Eep. 758. — Poor Householders. — Exceptions. — Weekly 
 V. Wildman, 1 Ld. Eaymond, 405. — Special Custom. — 
 Dean of Ely v. Warren, 2 Atk. 189.— Eoyal Forest— 
 Ilaiuault Forest. — Willingale v. Muitland, L. E., 3 Eq. 
 103. — 4 Inst, 297. — Lord cannot approve against these 
 Eights. — Custom to approve leaving sufficiency . .186
 
 TABLE OF CONTENTS. Xlll 
 
 Lecture XIV. 
 
 PAGE 
 
 Grant. — Sym's case, 8 Eop. 54. — Grant of Estovers to be Ap- 
 purtenant to a House. — Grant in Gross. — Mountjoy's case, 
 Co. Litt. 164 b ; 1 And. 307. — The Queen v. (Jhamherlains 
 of Alnivich, 9 A. &E. 444. — Eight of common not rateable 
 to tbe poor. — Eight maybe exclusive. — Doinglass v. Kendal, 
 Cro. Jac. 250. — Things not renewable. — Claim must be 
 reasonable. — Clayton v. Corby, 5 Q. B. 415. — Must be 
 spent upon the Premises. — Peppm v. ShaJcespear, 6 T. Eep. 
 748. — Duherley v. Page, 2 T. Eep. 391. — Marquis of Salisbury 
 v. Gladstone, 9 H. of L. 692.— Duke of Portland v. Hill, 
 L. E., 2 Eq. 765. — Whether there may be a Custom for 
 the Lord to approve leaving sufficiency of Sand, &c. — 
 Grant. — Lord Mountjoy^s case, Co. Litt. 164 b. — The Queen 
 V. The Chamberlains of Alnwick, 9 A. & E. 444. — Bex v. 
 Warkiuorth, 1 M. & S. 473. — Owner may get unless licence 
 exclusive. — Carr v. Benson, L. E., 3 Ch. 524. — A Mining 
 Licence. — Licence gives no Estate in the Land. — Chetham 
 V. Williamson, 4 East, 469. — Doe d. Hanleyy. Wood, 2 B. & 
 A. 724. — Norway v. Roive, 19 Ves. 143, 158. — Exclusive 
 Licensee may maintain Trespass. — Ilarher v. Birkbeck, 1 
 Wm. Black. 481 ; 3 Bui-r. 1556.— Coa; v. Olue, 5 C. B. 553. 
 — What is taking Possession by Licensee. — Jones v. 
 Reynolds, 7 Car. & P. 335. — Eights of Lord of Manor to dig 
 Sand, &c 199 
 
 Lecture XV. 
 Mines and Minerals. — Manors. — Copyholds. — Eardley v. Oran- 
 ville, L. E., 3 Ch. D. 826, 832.— Grant of Lands excepting 
 Mines. — The Strata of Coal cannot be claimed by Pre- 
 scription. — Wilkinson v. Proud, 11 M. & W. 33. — Convey- 
 ance of Land reserving Minerals. — When Mines are re- 
 served Acts of Ownership of Surface immaterial. — Smith 
 V. Lloyd, 9 Ex. 562. — Otherwise where a Eight to get 
 Mines only is reserved. — Meaning of the word "Minerals." 
 —Bell V. Wilson, L. E., 1 Ch. 308.— Hext v. Gill, L. E., 7 
 Ch. 699. — Incidental Eight to work. — Earl of Cardigan v. 
 Armitage, 2 B. & C. 197. — Way leaves. — Instroke and 
 Outstroke. — Grantee of Mines may use vacant Spaces. — 
 Way for one Purpose gives no Eight for another Purpose. 
 — Cowling \. Higginson, 4 M. <& W. 245. — Senhouse v.
 
 xiv TABLE OF CONTENTS. 
 
 PAGE 
 Christian, 1 T. Eep. 560.— Support to Surface. — Rowhotham 
 V. Wihon, 8 H. of L. SiS.— Hilton v. Earl Oranville, b 
 Q. B. ~Q\.—Dul-e of Bucdemjh v. Wakefield, L. E., 4 H. of 
 L. 377. — Eight of Support as between adjacent Land- 
 owners. — Stat. 43 Eliz. c. 2. — Coal Mines rateable to tbe 
 Poor.— The Eating Act, 1874, Stat. 37 & 38 Vict. c. 54, 
 ss. 3, 7, 13. — Local Customs. — Cornwall and Devon 
 Stannary Court.— Mendipp.— Forest of Dean— Derbyshire. 
 — Mines Ees-ulation Acts 213 
 
 Lecture XVI. 
 A Franchise. — A Forest. — Man wood's Forest Law. — Chartade 
 Foresta. — Beasts of Forest. — Forest Laws. — Lawing of 
 Dogs. — Assart. — Purj^restm-es. — ^Fences aU under Four 
 Feet. — ^No Fence without Licence, — Buildings. — Common 
 of Pasture in Forests. — Horses and Cattle only. — The 
 Fence Month. — Agistors. — Pannage. — Pirrlieus. — Hunt- 
 ing by Purlieu Man. — Coiu'ts and Officers. — Forty Day 
 Court. — Com-t of Ecgardof Dogs. — Court of Swainmote. — 
 Coui-t of Justice Seat. — Mischief of Forests. — Stat. l(i 
 Car. I. c. 16. — The New Forest. — Epping Forest. — Com- 
 missioners of Sewers v. Giasse, L. E., 19 Eq. 134. — A 
 Chase. — Hampton Court Chase. — Stat. 31 Hen. 8, c. 5. — 
 A Park. — A Free Warren. — The Case of Monopolies, 11 
 Eep. 87 b. — Grants of Free Warren. — Warrener. — Warren 
 in Gross. — Trespass on Warren. — Eight of Sporting. — 
 Blackstone's Contention. — Professor Christian's View. — 
 Robinson v. Wray, L. E., 1 C. P. 490. — Lord Leconfield v. 
 Dixon, L. E., 3 Ex. 30, — Eivart v. Graham, 7 H. of L. 
 2,Z\.—Howerlij v. Smith, L. E., 8 C. P. 514; 9 C. P. 524. 
 — Eights of Sporting now rateable to the Poor . . . 228 
 
 Lecture XVII. 
 Benefits of Inclosure. — Statutes of Merton and Westminster the 
 Second insufficient. — Vill of Aston — Agreement for Inclosure 
 — Appointment of Ai'bitrators — Award. — Bill for Specific 
 Porfonnance. — Decree in Chancery confirming Agreement. 
 — Acts of Parliament. — General Inclosui-e Act, 41 Geo. 3, 
 c. 109, 8. 40. — Mines and Minerals. — Toivnley v. Gibson, 
 2 T. Eep. 701.— Stats. 4 & 5 Will. IV. c. 30.— Exchange of
 
 TABI.E OF CONTENTS. XV 
 
 PAGE 
 Common Field Lands. — 6& 7 Will. IV. c. 115. — Inclosuro 
 of Common Fields. — 3 & 4 Vict. c. 31, s. 4. — General In- 
 closuro Act, Stat. 8 & 9 Vict. c. 118: Inclosure Commis- 
 sioners: Sect. 11: Sect. 12: Sect. 15, Village Greens: 
 Sect. 30, Exercise and Eecreation : Sect. 31, Allotments 
 for Labouring Poor : Sect. 152, Remedying Defects in 
 Awards : Sect. 147, Exchanges. — Common Lands taken 
 by Eailways, &c.— Stats. 29 & 30 Vict. c. 122, and 32 & 33 
 Vict. c. 107 (Metropolitan Commons) : Sect. 5 : Sect. 6 : 
 Sect. 18: Sect. 22.— Tlie Commons Act, 1876 (stat. 39&40 
 Vict. c. 56): Sects. 2, 3, Regulation of Commons: Sect.~7, 
 Commons within Six Miles of a Town : Sect. 8, Defi- 
 nition of a Town for purposes of Act : Sect. 12, sub-s. 10, 
 Provisional Order to be confirmed by Parliament . . 245 
 
 Lecture XVIII. 
 Fishing. — Common of Piscary. — A Several Fishery. — Marshall 
 V. Ulleswater Steam Navigation Co., 3 B. & S. 732. — Judg- 
 ment of Cockburn, C. J. — Trespass. — Holford v. Bailey, 
 13 Q. B. 426. — ^Several Fishery may be Appurtenant. — 
 Duhe of Somerset v. Fogiuell, 5 B. & C. 875. — Fishery in 
 Gross not within Prescription Act. — Shuttleioorth v. Le 
 Fleming, 19 C. B., N. S. 687. — Fishery not formerly 
 rateable to the Voow—Bex y- Ellis, 1 M. & S. 652.— The 
 Rating Act, 1874 (stat. 37 & 38 Vict. c. 54, s. 3).— The 
 Sea.^ — Grant of Foreshore. — Ancient Grants explained by 
 Modern user. — Duke of Beat fort v. Mayor, &c. of Sivansea, 
 3 Ex. 413.—Calmady v. Bou'e, 6 C. B. 861.— When High- 
 water Mark gradually alters. — Be Hull and Selby Bail. 
 Co., 5 M. & W. 327, 332.— Sudden Advance or Recession. 
 — Grant by Crown of Several Fishery. — Magna Charta, 
 c. 16. — No Public Right in Private Waters. — Hudson v. 
 Macrae, 4 Best & Smith, 585. — Hargreaves v. Diddams, 
 L. R., 10 Q. B. 582.— Custom for Inhabitants to fish 
 bad. — Rivers. — Mayor of Carlisle v. Oraham, L. R., 4 Ex. 
 361. — Johnson v. Bloomfield, 8 I. R. Common Law, 68. — 
 Inland Lakes 259 
 
 Lecture XIX. 
 Franchises — Court Leet, Resiants. — The King v. Joliffe, 2 B. & 
 C. 54. — Forfeitxu-e of Court by Neglect. — The King v. The
 
 XVI TAliLK OF CONTENTS. 
 
 PAGE 
 Steward, (fee. of Haver ing-atte- Bower, 5 B. & A. G91. — 
 Infangtliief and outfangtHef. — Gallows. — Stat. 1 & 2 
 Phil. & M. c. 15, s. 3. — A Hundred. — Keeping a Gaol. — 
 Frank foldage.— Suit of fold. -Lord of the ViU.— Fold- 
 coui'se. — Sharp v. Bechcnoive, Lutw. 398, 399. — Spooner v. 
 Day, Cro. Car. 432 ; S. C. Day v. Spoone, Sir Wm. Jones, 
 llo.—Ivatt V. Man, 3 M. & G. 691.— Town flock.— To 
 bake Bread at the Lord's Bakehouse. — Hex v. Oardiner, 
 2 Bulst. 195. — To grind Corn at the Lord's Mill.— Pre- 
 scription and Custom. — Treasure trove. — Waifs. — Stolon 
 Goods. — Lee v. Bayes, 18 C. B. 599. — WeJls v. Abraham, 
 L. E., 7 Q. B. 554.— Market Overt.- Stat. 24 & 25 Vict. 
 c. 96, s. 100.— Stat. 30 & 31 Vict. c. 35, s. 9 . . .271 
 
 Lecture XX. 
 Estrays. — Swans. — Distress of Cattle Damage Feasant. — Com- 
 moner may distrain Cattle Damage Feasant. — Stat. 12 & 
 13 Vict. c. 92, ss. 5, 6.— Stat. 17 & 18 Vict. c. 60, s. 1.— 
 Wrecks of the Sea. — Jetsam, Flotsam, Ligan. — Eight 
 to Wreck by Grant or Prescription. — Eeceivers of Wreck. 
 — Eoyal Fishes. — Goods of Felons. — Stat. 33 & 34 Vict. c. 
 23. — Forfeitures abolished. — Deodand. — Stat. 9 & 10 Vict. 
 c. 62. — Fairs and Markets. — Tolls. — Pickage. — Stallage. — 
 Change of Site. — Ellis v. Mayor, &c. of Bridy north, 15 C. 
 B., N. S. 52. — Stallage. — Mayor, dec. of Great Yarmouth v. 
 Groom, 1 H. & C. 102. — Stallage rateable. — Tolls not rate- 
 able.— T/ie Queen v. CasswcU, L. E., 7 Q. B. 328.— Sale by 
 Sample not Sale in Market Overt. — Crane v. London Dock 
 Co., 5 B. & S. 313. — Disturbance of Markets. — Mayor, &c. 
 of Brecon v. Edwards, 1 H. & C. 51.— Stat. 10 & 11 Vict. 
 c. 14, 8. 13.— Stat. 36 & 37 Vict. c. 37, s. 6.— Change of 
 Fair Days. — Stat. 34 & 35 Vict. c. 12. — Power to abolish 
 Fairs.— Sect. 4, Notice.— Toll Traverse.— Toll Thorough. 
 — Lawrence v. Hitch, L. E., 3 Q. B. 521. — Eankness. — 
 Bryant v. Foot, L. E., 3 Q. B. 497 286 
 
 Lecture XXI. 
 Easements, Definition of. — No Easements in Gross. — Personal 
 Privilege. — Easement must relate to the Land. — Ackroyd 
 v. Smith, 10 C. B. 104. — Eemarks on Ackroyd \. Synith in
 
 TABLE OF CO>'TEJ\TS. XVU 
 
 PAGE 
 Thorpe v. Brtimfitt, L. E., 8 Ch. 650, 655, 657. — Affirma- 
 tive and Negative Easements. — Continuous and Discon- 
 tinuous Easements. — Title by Prescription. — Immemorial 
 EnjojTuent. — Aynslexj v. Olover, L. E., 18 Eq. 544; 10 Ch. 
 283. — Lost grant. — Cowlam v. Slack, 15 East, 108. — Stat. 
 2 & 3 Will. 4, c. 71, s. 2.— Defeat of Claim raised by 
 Twenty Years' Enjoyment. — Baron Parke in Bright v. 
 Walker, 1 C, M. & E. 211, 219.— Sects. 4, 5, 6.— Meaning 
 of Sect. 6. — Lord Westbury in Hanmer y. Chance, 4 De G., 
 J. & S. 626, 631.— Sect. 7.— Sect. S.—Palk v. Skinner, 18 
 Q. B. 568 301 
 
 Lecture XXII. 
 Grants. — General Words. — Easements pass by Conveyance of 
 Dominant Tenement. — Skull v. Olenister, 16 C. B., N. S. 
 81. — Parol Demise. — Easements extinguisbed. — Eegrant 
 by general Words. — Creation of new Easement by general 
 . Words.— Tra«s \. Kelson, L. E., 6 Ch. IQQ.—Kay v. Oxley, 
 L. E., 10 Q. B. 360. — Implied Grant. — Easements neces- 
 sary and continuous. — Erie, C. J., in Pollen v. Bastard, 
 L. E., 1 Q. B. 150, l%\.— Wheeldon v. Bicrroivs, L. E., 12 
 Ch. D. 31. — Judgment of Thesiger, L. J. — Exceptions to 
 Eule. — Way of Necessity. — Necessary Eepairs. — Ease- 
 ments not necessary and continuous. — Worthington v. 
 Gimson, 2 E. & E. 618.— Ways, different Kinds of.— 
 Wimhledon and Putney Commons Conservators v. Dixon, 
 L. E., 1 Ch. D. S62.— Br adhurn v. Morris, L. E., 3 Ch. D. 
 812. — Division of Dominant Tenement. — Neivcomen v. 
 Coidson, L. E., 5 Ch. D. 133. — Way to one Close cannot 
 be used to another Close. — Skull v. Olenister, 16 C. B., 
 N. S. 81.- — Eepairs of Eoad. — Grantee may repair. — No 
 Eight to deviate. — Arnold v. Holhrook, L. E., 8 Q. B. 96. 
 — When Way not defined. — Lord Justice Mellish in 
 Wimhledon and Putney Commons Conservators v. Dixon, 
 L. E., 1 Ch. D. 362, 369 315 
 
 Lecture XXIII. 
 Watercourses, use, pollution. — Wright v. Howard, 1 Sim. & 
 Stu. 190, 203.— Baron Parke in Emhrey v. Owen, 6 Ex. 
 353, 371. — Irrigation. — Medwaij Co. v. Earl of Romney, 9 
 W.P. l>
 
 Xviil TAHLE OF CONTENTS. 
 
 PAGE 
 C. B., N. S. 575. — Wilts and Berks Canal (Jo. v. Swindon 
 Waterworks Co., L. R., 9 Ch. 451'. — Pollution. — Baxendale 
 V. M' Murray, L. R., 2 Ch. 790.— Gradual Pollution.— 
 Lord Chelmsford in Crossley v. Lightowler, L. R., 2 Ch. 
 478. — Natural Streams, what are. — Jlolker Y.Poritt, L. R., 
 8 Ex. 107. — Discharging Refuse "Water. — Wright v. Wil- 
 liams, 1 M. & W. 77. — Right to Surplus Water. — Ark- 
 tvright v. Cell, 5 M. & W. 2m.—Magor v. Chadwick, 11 
 A. & E. oil.— Wood V. Waud, 3 Ex. 748.— Percolation of 
 Water. — Chasemore v. Richards, 1 H. of L. 349. — The 
 Queen v. Metropolitan Board of Works, 3 B. & S. 710. — 
 Grand Junction Canal Co. v. Shugar, L. R., 6 Ch. 483 . 331 
 
 Lecture XXIV. 
 Ught— A Tjnsleij v. Olooer, L. R., 18 Eq. 544; 10 Ch. 283.— 
 Twenty Years' Enjojonent. — Stat. 2 & 3 "Will. I'V. c. 71, 
 ss. 3, 4. — Sects. 7 and 8 do not apply. — Windows over- 
 looking. — Tajjling v. Jones, 11 H. of L. 290. — Staight v. 
 Burn, L. R., 5 Ch. 163. — Remedies. — Damages. — Injunc- 
 tion. — Mandatory Inj unction. —Fortj'^-five Degrees. — Lord 
 Selborno in City of London Brewery Co. v. Tenitant, L. R., 
 9 Ch. 212, 220.— Tlackett v. Baiss, L. R., 20 Eq. 494.— 
 Air. — Right to Air not an Easement. — Windmill. — Webh 
 V. Bird, 13 C. B., N. S. 841.— Noise and Vibration.— 
 Nuisance. — f>eni v. Auction Mart Co., L. R., 2 Eq. 238. — 
 Pew : Faculty, Prescription, Evidence, Repairs. — Crisji 
 V. Martin, L. R., 2 P. D. 15.— 'Whether within Pro- 
 scription Act. — Right of Bui-ial in a Vault. — Bryan v. 
 Whistler, 8 B. & C. 288. — Eaves. — Signboard. — Prescrip- 
 tive Liabilities: Bridge, Highway, Sea AVall. — Keighley's 
 case, 10 Rop. 139.— TAe Queen v. Leigh, 10 A. & E. 398.— 
 Hudson V. Tabor, L. R., 2 Q. B. Div. 290. . . .348 
 
 TN1»1-:X 365
 
 INDEX TO CASES CITED. 
 
 A. 
 
 PAGE 
 
 Abbot V. Weekly 149 
 
 Abraham, Wells v 282 
 
 Ackroyd v. Smith 302—304 
 
 Adams, Lord E-ivera v. . .195, 196 
 
 Addington v. Clode 7 
 
 Allen, Rogers v 264 
 
 Alnwick, The Chamberlains of, 
 
 n. V 201, 208 
 
 Ambergate, &c. Rail. Co. v. 
 
 Midland Rail. Co 287 
 
 Amhurst, Fox v 158 
 
 Angus V. Dalton 225 
 
 Appleyard, Bailey v 181 
 
 Arkwright v. GeU 340 
 
 Arlettt;. Ellis.. 119, 124, 131, 135, 
 
 141, 151 
 
 Armitage, Earl of Cardigan v. 221 
 
 Arnold V. Holbrook 329 
 
 Arundell v. Viscount Falmouth 150, 
 
 158 
 
 Ashford Union, Percy v 295 
 
 Aspden v. Seddon 223 
 
 Attorney - General v . Chambers 265 
 
 r. Mathias.. 177 
 
 f. Mayor, 
 
 &c. of Ports- 
 mouth .... 266 
 
 ?'. Reveley.. 155 
 
 Auction Mart Co., Dent r. . . 360 
 Ayusley r. Glover . . 306—308, 348 
 
 B. 
 
 jer V. Ford 124 
 
 Bagott V. Orr 266 
 
 Bailey v. Appleyard 181 
 
 , Holford V 263, 264 
 
 V. Stephens 193 
 
 Baiss, Hackett v 358 
 
 Barker r. Dixon 72 
 
 Barnes, Johnson r 12 
 
 PAGE 
 
 Barnes v. Loach 320 
 
 V. Peterson 82 
 
 Barrington's case (Sir Francis) 143 
 —145 
 
 Bastard, Polden v 319 
 
 Bateson v. Green 152 
 
 Baxendale v. McMurray 336 
 
 Bayes, Lee v 282 
 
 Beauchamp (Earl) v. Winn . . 239 
 Beaufort (Duke of) v. Mayor, 
 
 &c. of Swansea 266 
 
 Bechenowe, Sharp v 277 
 
 Bell V. Wilson 220 
 
 Bennington v. Goodtitle .... 82 
 
 Bennison v. Cartwright 182 
 
 Benson, Carr v 208 
 
 Betts V. Thompson 119, 162 
 
 Bird, Webb v 359 
 
 Birkbeck, Harker v 211 
 
 Bland v. Lipscombe 269 
 
 Bloomfield, Johnson v 270 
 
 Bolton V. Bolton 323 
 
 Boulcott V. Winmill 132 
 
 Bradburn v. Morris 326 
 
 Bradshaw v. Eyre 169 
 
 Brecon, Mayor, &c. of, v. Ed- 
 wards 296 
 
 Bridgman, Sturges v 300 
 
 Bridgnorth, Mayor, &c. of, 
 
 EUis V 294 
 
 Bright «;. Walker ..310, 311, 312, 
 
 313, 314 
 
 Brownlow (Earl), Smith v. .. 135, 
 
 161, 189 
 
 Brownlow, Pate r 50 
 
 Brumfitt, Thorpe r 304 
 
 Bryan v. Whistler 362 
 
 Bryant v. Foot 300 
 
 V. Lefe\Te 359 
 
 Bucoleuch (Duke of) v. Wake- 
 field 223, 224 
 
 Bum, Staight v 356 
 
 Burrows, Wheeldofit). 319, 320—322 
 Byron, HaUf...l52, 156, 158, 170, 
 
 223 
 
 b 2
 
 INDEX TO OASES Ol'lED. 
 
 C. 
 
 PAGE 
 
 Calmady r. Rowe 266 
 
 Cauuiuprton, Haywai-d r. 192, 193, 
 
 199 
 
 Caper. Scott 122, 183 
 
 Cardigan (Earl of) r. Armitage 221 
 Carlisle, Mayor of, v. Graham 270 
 
 Carpenter, Lowe v 180 
 
 Carr v. Benson 208 
 
 V. Foster 178 
 
 V. Lambert 32 
 
 Carter, Pyer v. 320, 322 
 
 Cartwright, Bennisou v 182 
 
 Casswell, H. v 295 
 
 Chadwick, Magor r 341 
 
 Cliambers, Att.-Gen. v 265 
 
 Chance, Hannier v 311 
 
 Chapman v. Cowlan 159 
 
 Chasemore v. Richards, 342 — 345, 
 
 347 
 
 Cheesemau r. Harding 71 
 
 Chctham v. Williamson 210 
 
 Cheveley, Goodwin v 287 
 
 Chilton V. Corporationof Lon- 
 don 194, 196 
 
 Christian, Seuhouse v 222 
 
 Chui-cliill, H.v 202 
 
 City of London Brewery Co. v. 
 
 Tennant 357 
 
 City of London's case 276, 278, 279 
 
 Clarke, Gibson v 41 
 
 Clarkson v. Woodhouse 187 
 
 Clay, Lady "Wentworth r 130 
 
 Clayton v. Corby 176, 203 
 
 Clode, Addington v 7 
 
 Commissioners of Sewers v. 
 Glasse ..54, 120. 132, 157, 158, 
 162—165, 183, 236 
 Commissioners of the New 
 
 Forest, Mill v 176 
 
 Compton V. Richards 320 
 
 Cook, Morland v 364 
 
 Cooper V. Marshall 151 
 
 Corbet's case, Sir Miles, 47, 68, 69, 
 71, 72 
 
 Corby, Clayton v 176, 203 
 
 Corporation of London, Chil- 
 ton t' 194, 196 
 
 Coster and Wingficld's case . . 187 
 
 Coulson, Newcomen r 326 
 
 Coventry, Swansborough v. . . 320 
 
 Cowlam V. Slack 171, 308 
 
 Cowlan, Chapman f 159 
 
 Cowling V. Higgiusou 222 
 
 Cox V. Glue 26,211 
 
 , V. Mousley 29 
 
 Crane r. Loudon Dock Co. . . 290 
 
 PAGE 
 
 Creswell, Ward r 266 
 
 Crisp r. Martin 361 
 
 Crossley v. Lightowler 337 
 
 D. 
 
 Dalton, Angus v 225 
 
 Daniel v. Hanslip 184 
 
 Davies v. Sear 322 
 
 Day V. Spoone 184, 278 
 
 , Spoonerv 184,278 
 
 Dent r. Auction Mart Co. . . 360 
 Devonshire (Duke of) v. Lodge 239 
 
 Diddams, Hargreaves v 269 
 
 Dixon, Barker v 72 
 
 , Lord Leconfield v. . . 241 
 
 , Stammers v 20 
 
 , Wimbledon and Putney 
 
 Commons Conservators V. 325,329 
 
 Doe d. Hanley v. Wood 210 
 
 Dowglass V. Kendal. . 20, 187, 202 
 
 Dnuy V. Kent 184 
 
 Duberley t'. Page, 126—129, 138— 
 140, 205 
 Duleep Singh (the Maharajah) 
 
 Robinson r 113,152,277 
 
 Dunraven (Earl) v. Llewellyn 
 
 36, 38, 39 
 
 E. 
 
 Eardley v. Granville 213—215 
 
 Ecclesiastical Commissioners, 
 
 Forbes v 148 
 
 , Whidbomer. 220 
 
 Edwards, Mayor, &c. of Bre- 
 con V 296 
 
 EUard v. Hill 49, 157 
 
 Elliot V. North Eastern Rail- 
 way 225 
 
 Ellis, Arlett v. 119, 124, 131, 135, 
 141, 151 
 
 «'. Manchester Carriage 
 
 Co 320 
 
 V. Mayor, &c. of Bridg- 
 north 294 
 
 , B. V 265 
 
 V. Rowles 122 
 
 Elwcs r. Payne 294 
 
 Ely, Dean and Chapter of, 
 
 V. Warren 196 
 
 Embrey v. Owen 332, 344 
 
 Epping Forest case. — See 
 Commissioners of Sewers v. 
 Glasse.
 
 IXDKX TO CASES CITED. 
 
 XXI 
 
 PAGE 
 
 Eve, Lancaster r 363 
 
 Ewart r. Graliain 241, 243 
 
 Eyre, Bradsliaw r 169 
 
 F. 
 
 Falmouth (Viscount), Ai-uu- 
 
 dellt; 150, 158 
 
 Fawcett v. Strickland 137, 140 
 
 Fay V. Prentice 362 
 
 Fielding v. Wren 277 
 
 Finch V. Great Western Rail. 
 
 Co 326 
 
 Fish, Waggoner v 276 
 
 Flight r. Thomas 182 
 
 Fogwell, Duke of Somerset v. 264 
 
 Folkard v. Hemmett 130, 131 
 
 Foot, Bryant v 300 
 
 Forbes v. Ecclesiastical Com- 
 missioners 148 
 
 Ford, Badger v 124 
 
 , Yard v 294 
 
 Foster, Carr r 178 
 
 r. Wright 270 
 
 Fox V. Amhurst 158 
 
 — — , Stork V 41 
 
 Fiy, Richards v 181 
 
 G. 
 
 Galland, Pinnington v 322 
 
 Gardiner, Hex i' 279 
 
 Gateward's case, 13,16,164,269 
 
 Gauly V. Ledwidge 297 
 
 Gave, Musgrave v 277 
 
 Gaved v. Martyn 341 
 
 Gell, Arkwright v 340 
 
 Gibson r. Clarke 41 
 
 ■ , Townley v 250 
 
 GifEord v. Lord Yarborough . . 267 
 
 Gill, Hext V 220 
 
 Gimson, Worthington r 323 
 
 Gladstone, Marquis of Salis- 
 bury V 206 
 
 Glasse, Commissioners of 
 Sewers v.. .54, 120, 132, 157, 158, 
 162—165, 183, 230 
 
 Glenister, Skull v 315, 327, 328 
 
 Glover, Aynsley «).. .306— 308, 348 
 
 V. Lane 113 
 
 Glue, Cox V 26, 21 1 
 
 Goodtitle, Bennington v 82 
 
 Goodwin v. Cheveley 287 
 
 Graham, Mayor of Carlisle v.. 270 
 , Ewart V 241, 243 
 
 I'AGK 
 
 Grand Junction Canal Co. r. 
 
 Shugar 346, 347 
 
 Grant v. Gunner 140 
 
 Granville, Eardley v 213 — 215 
 
 (Earl), Hilton r 223 
 
 Great Western Rail. Co., 
 
 Finch r 326 
 
 Green, Bateson v 152 
 
 Groom, Mayor, &c. of Great 
 
 Yai-mouth v 295 
 
 Grj-mes v. Peacock 170 
 
 Gunner, Grant r 140 
 
 H. 
 
 Hackett v. Baiss 358 
 
 Hainault Forest Act, 1858, In 
 
 the matter of the 52 
 
 Hallt'. Byron.. 152, 156, 158, 170, 
 
 223 
 
 V. Harding 122 
 
 r. Nottingham 149 
 
 Hancerton, Nevill v 117 
 
 Hanmer v. Chance 311 
 
 Hanslip, Daniel v 184 
 
 Harding, Cheeseman v 71 
 
 , Hall ^' 122 
 
 Hardman v. Noith Eastern 
 
 Rail. Co 340 
 
 Hargreaves v. Diddams 269 
 
 Harker v. Bu-kbeck 211 
 
 Havering - atte - Bower, The 
 
 Steward, &c. of, H. v 273 
 
 Hayward v. Caimington. . 192,193, 
 
 199 
 
 Henamett, Folkard v 130, 131 
 
 Hewett, Wood v 363 
 
 Hex i\ Gardiner 279 
 
 Hext V. Gill 220 
 
 Hiatt, Magdalen College, Ox- 
 ford V 149 
 
 Higginson, Cowling v 222 
 
 HiU, Ellard v 49, 157 
 
 , Duke of Portland v 207 
 
 Hilton I'. Earl Granville 223 
 
 Hitch, Lawrence v 299, 303 
 
 Hoare v. Metropolitan Board 
 
 of Works 363 
 
 Hoe V. Taylor 20 
 
 Holbrook, Arnold v 329 
 
 HoKord V. Bailey 263, 264 
 
 Holker r. Porritt 339 
 
 HoUingshead v. Walton .... 46, 190 
 
 HoUiugtou luhab., R. r 30,82 
 
 Hopkins v. Robinson 21, 23 
 
 Hoskins v. Robins. .10,21,23,25,26 
 How V. Strode 72
 
 xxu 
 
 INDEX TO CASES CITED. 
 
 PAUE 
 
 Howard, Wright v 331, 332 
 
 Hutisou V. Macrae 2G8, 269 
 
 V. Tiibor 3G4 
 
 Hull ami Selby Railway, lu 
 
 the matter of the 2C7 
 
 Hunter, Marsham v 170 
 
 luclosure Commissioners, Mus- 
 
 grave v 120, 151 
 
 Ivatt V. Man 278 
 
 Johnson v. Barnes 12 
 
 v. Bloomfield 270 
 
 Joliffe, n.r 0, 272 
 
 Jones V. Richards 25 
 
 r. Robin 184 
 
 , Tapling v 350—356 
 
 V. Williams 362 
 
 K. 
 
 Kay p. Oxley 318 
 
 Keighley's case 363 
 
 Kelson, Watts v 317 
 
 Kendal, Dowglass v. . . 20, 187, 202 
 
 Kent, Drurj^ v 184 
 
 Kenyon, West Cumberland 
 
 Iron and Steel Co. v 340 
 
 King, The. See R. 
 
 Kiugswel, Worledg v 170 
 
 Kirby r. Sadgrovc 151 
 
 KoGuj Behari Pattuck, Ranie- 
 
 shui- PershadNarein Singh t'. 341 
 
 L. 
 
 Laker. Plaxton 119 
 
 Lambert, Carr v 32 
 
 Lancaster r. Eve 363 
 
 Lane, Glover v. 113 
 
 Lascelles v. Lord Onslow .... 120, 
 132, 142 
 
 Lawrence v. Hitch 299, 300 
 
 Leconfiold (Lord) v. Dixon . . 241 
 
 Ledwidge, Gauly v 297 
 
 Loe r. Baycs 282 
 
 Lefevrc, Bryant v 359 
 
 Lo Fleming, Shuttle worth v. . .11, 
 
 265 
 Leigh, R.r 364 
 
 PAGE 
 
 Liford'.s case, Richard 323 
 
 Lightowler, Cros.sley v 337 
 
 Lipscombe, Bland ?> 269 
 
 Llewellyn, Earl Dunra\eji r. . . 36, 
 38, 39 
 
 Lloyd V. Lord Powis 151 
 
 , Smith V 218 
 
 Loach, Barnes v 320 
 
 Lodge, Duke of Devonshire r. 239 
 London and Brighton Rail. Co., 
 
 Stoneham v 254 
 
 London Dock Co., Crane v. . . 296 
 London's case. The City of . . 276, 
 278, 279 
 LondondeiTy (Mayor of) v. 
 
 McElhiuey 297 
 
 Lonsdale (Earl of) r. Prigg . . 83 
 
 Lowe V. Carpenter 180 
 
 Luttrel's case 186 
 
 M. 
 
 Mace v. Philcox 266 
 
 McMurray, Baxendale v 336 
 
 McElhiney, Mayor of Lon- 
 donderry «' 297 
 
 Macrae, Hudson v 268, 269 
 
 Magdalen College, Oxford r. 
 
 Hiatt 149 
 
 Magor V. Chadwick 34 1 
 
 Maitland, Willingale v 196 
 
 Malcomson v. O'Dea 259, 268 
 
 Mallorie, Proctor v 107 
 
 Man, Ivatt v 278 
 
 Manchester Carriage Co., Ellis 
 
 V 320 
 
 Manifold v. Pennington .... 31 
 
 Marshall, Cooper v 151 
 
 V. The Ulleswater 
 
 Steam Navigation 
 Co. (Limited) . . 260-264 
 
 Marsham v. Hunter 170 
 
 Martin, Crisp v 361 
 
 MartjTj, Gaved v 34 1 
 
 Mathias, Attoraey- General v. 177 
 Med way Co. t'. Earl of Romney 333 
 Metropolitan Board of Works, 
 
 Hoare v 363 
 
 H. V. 346 
 
 Midland Rail. Co. , Ambergate 
 &c. Rail. 
 Co. r. . . 287 
 
 , Rangeley 
 
 y 301 
 
 Mill V. Commissioners of the 
 
 New Forest 176 
 
 , Pannell r 243
 
 INDEX TO CASES CITED. 
 
 XXUl 
 
 PAGE 
 
 Monopolies, the case of . . 238, 239 
 
 Moody V. Steggles 3(33 
 
 Morland v. Cook 364 
 
 Morris, Bradbmii v 326 
 
 Morris's case 287 
 
 Morse and Webb's case 157 
 
 Mouutjoy's (Lord) case.. 200, 207, 
 
 208 
 
 Mousloy, Cox v 29 
 
 Musgrave v. Gave 277 
 
 V. Inclosure Commis- 
 
 siouers 120, 151 
 
 N. 
 
 Nevill IK Hancerton 117 
 
 Newcomen v. Coulson 326 
 
 North Eastern Railway, Elliott 
 
 V. . . 225 
 
 Co., 
 
 Hardruan v 340 
 
 North, Potter v 10, 21, 24 
 
 Northwick (Lord) v. Stanway . 129, 
 
 133 
 
 Norway v. Rowe 210 
 
 Nottingham, Hall r 149 
 
 0. 
 
 O'Dea, Malcomson r 259, 268 
 
 Onslow (Lord), LasceUes v. . . 120, 
 132, 142 
 
 Orr, Bagott v 266 
 
 Owen, Embrey v 332, 344 
 
 Oxley, Kay V 318 
 
 P. 
 
 Page, Duberley v. . . 126—129, 138 
 —140, 205 
 
 Palk v. Skinner 312—314 
 
 Palmer v. Stone 158 
 
 Pannell v. Mill 243 
 
 Parke, Warbiu-ton v 177 
 
 Pate V. Brownlow 50 
 
 Patrick v. Stubbs 113, 117 
 
 Payne, Elwes v 294 
 
 Peacock, Grymes v 170 
 
 Peardon v. Underbill . . 141, 178, 
 
 197 
 
 Pearson v. Spencer 320 
 
 Pennington, Manifold p 31 
 
 Penny, Valentine V 192 
 
 Pcnruddock's case 362 
 
 PAGE 
 
 Pcppin, Shakespear v. . . 123, 138, 
 140, 205 
 
 Percy v. Ashford Union 295 
 
 Peterson, Barnes v 82 
 
 Petifer, Ward r 20 
 
 Philcox, Mace v 2G6 
 
 Piddletrenthide Inhab., R. j^. . 30 
 
 Pinnington v. Galland 322 
 
 Plaxtou, Lake v 119 
 
 Polden V. Bastard 319 
 
 Pomfret v. Ricroft 323 
 
 Porritt, Holker v 339 
 
 Portland (Duke of) v. Hill . . 207 
 Portsmouth, Mayor, &c. of, 
 
 Att.-Gen. v 266 
 
 Potter V. North 10, 21, 24 
 
 Powell V. Earl of Powis 160 
 
 Powis (Earl of), Powell v 160 
 
 (Lord), Lloyd v 151 
 
 Prentice, Fay v 362 
 
 Proctor V. Mallorie 107 
 
 Proud, Wilkmson v 216 
 
 Pyer v. Carter 320, 322 
 
 Q. 
 
 Queen, The. See R. 
 Queen's College, Oxford, War- 
 rick j? 36, 38, 161, 190 
 
 R. 
 
 R. V. CasswoU 295 
 
 — V. Churchill 202 
 
 — V. Ellis 265 
 
 — v. Hollingtou Inhab 30, 82 
 
 — V. Inhabitants of Sheffield . 363 
 
 — V. Wlaixley . 82 
 
 — V. Johffe 5, 272 
 
 — V. Leigh 364 
 
 — V. Metropohtan Board of 
 
 Works 346 
 
 — V. Piddletrenthide Inliab. . . 30 
 
 — ('. Stoke Inliab 30 
 
 — V. The Chamberlains of Aln- 
 
 wick 201,208 
 
 — V. The Steward, &c. of Ha- 
 
 veriug'-atte-Bower . . 273 
 
 — r. Tolpuddle Inhab 30 
 
 — v. Warkworth 208 
 
 Race ('. Ward 18, 305 
 
 Rameshiu" Pershad Narein 
 
 Singh v. Koonj Behari Pat- 
 tuck 341
 
 XXIV 
 
 INDEX TO CAiSES CITED. 
 
 PAGE 
 
 Raugeley c. Midlaud Rail. Co. 301 
 Regina. Sec R. 
 
 Reveley, Att.-Geu. r 155 
 
 Rex. See R. 
 
 Richards, Chasemore v. . 842 — 345, 
 
 347 
 
 , Compton (' 320 
 
 V. Fry 181 
 
 , Jones V 25 
 
 V. Rose 322 
 
 Ricroft, Pomfret c 323 
 
 Rigg, Earl of Lousdale v 83 
 
 Rivers (Lord) v. Adams . . 195, 196 
 
 Robin, Jones v 184 
 
 Robins, Hoskins r. . . 10, 21, 23, 25, 
 
 2G 
 
 , Wardr 182 
 
 Robinson, Hopkins v 21, 23 
 
 , Selby V 194 
 
 V. The Maharajah 
 
 Duleep Singh. 11 3, 
 152, 277 
 
 V. Wray 240 
 
 Rogers v. Allen 264 
 
 Romney (Earl of), Medway 
 
 Co. !■ ■. 333 
 
 Rose, Richards v 322 
 
 Rowbotliam v. "Wilson 223 
 
 Rowe, Calmady v 266 
 
 -, Norway v 210 
 
 Rowles, Ellis v 122 
 
 Sadgrove, Kiiby r 151 
 
 Salisbury (Marquis of), r. 
 
 Gladstone 206 
 
 Scott, Cape v 122, 183 
 
 Sear, Davics v 322 
 
 Seddon, Aspden v 223 
 
 V. Smith 152—154 
 
 Selby V. Robinson 194 
 
 Senhouso v. Christian 222 
 
 Shakespear v. Peppiu . . 123, 138, 
 140, 205 
 
 Sharp V. Bechcnowo 277 
 
 Sheffield, Inhabitants of, R. v. . 363 
 Shugar, Grand Junction Canal 
 
 Co. r 346, 347 
 
 Shuttleworth v. Le Fleming. . 11, 
 
 265 
 
 Singleton v. Williamson .... 287 
 
 Skinner, Palk /• 312—314 
 
 Skull V. Glenistcr . .315, 327, 328 
 black, Cowlam c 171, 308 
 
 PAGE 
 
 Smith, Ackruyd v 302—304 
 
 c. Earl Brownlow .... 135, 
 
 161, 180 
 
 V. Lloyd 218 
 
 , Seddon v 152—154 
 
 , Sowerby v 242, 243 
 
 Somerset (Duke of), v. Fog- 
 well 264 
 
 Sowerby v. Smith 242, 243 
 
 Sparke's Prescription, Sir 
 
 George 19 
 
 Spencer, Pearson v 320 
 
 Spoone, Dayv 184,278 
 
 Spooner v. Day 184, 278 
 
 Staight V. Biu'n 356 
 
 Staker, Styant v 170 
 
 Stammers v. Dixon 20 
 
 Stan way. Lord North wick r. . . 129, 
 
 133 
 
 Steggles, Moody v 363 
 
 Stephens, Bailey v 193 
 
 Stoke Inhab., R. ?' 30 
 
 Stone, Palmer v 158 
 
 Stoneham r. London and 
 
 Brighton Rail. Co 254 
 
 Stork t'. Fox 41 
 
 Strickland, Fawcett v. . . 137, 140 
 
 Strode, How v 72 
 
 Stubbs, Patrick r 113,117 
 
 Sttu'ges r. Bridgman 360 
 
 Styant v. Staker 170 
 
 Swansborough v. Coventry . . 320 
 Swansea (Mayor, &c. of), 
 
 Duke of Beaufort v 266 
 
 Swayne's case 134 
 
 Swindon Waterworks Co., 
 Wilts and Berks Canal 
 
 Navigation Co. v 334—336 
 
 Sym's case 199 
 
 Tabor, Hudson v 364 
 
 Tapley r. Wainwright 154 
 
 Tapling r. Jones 350 — 356 
 
 Taylor, Hoe v 220 
 
 Tennant, City of London 
 
 Brewery Co. v 357 
 
 Thomas, Flight r 182 
 
 Thompson, Bctts v 119, 162 
 
 Thorpe v. Brumfitt 304 
 
 Tolpuddlo Inhab., R. ;• 30 
 
 Toulson, Wlieelcr v 20 
 
 Townley v. Gibson 250 
 
 Tyrringham's ease 37, 182 
 
 Tyrwhitt v. Wynne 154
 
 INDEX TO CASES CITED. 
 
 XXV 
 
 U. 
 
 PAOE 
 
 UUeswater Steam Navigatiou 
 Co. (Limited), MarshalU'. ..260 
 —264 
 Uuderhill, Peardon v. .. 141, 178, 
 
 197 
 Upton, Welcome v 9 
 
 Valentine r. Penny 192 
 
 W. 
 
 Waddell, Wilson v. , 340 
 
 Waggoner v. Fish 276 
 
 Wain Wright, Tapley v 154 
 
 Wakefield, Duke of Buccleuch 
 
 V 223, 224 
 
 Walker, Bright v. ..310, 311, 312, 
 
 313, 314 
 
 Walton, Hollingshead r. . .46, 190 
 
 Warburton v. Parke 177 
 
 Ward V. Cresswell 266 
 
 ^w. Petifer 20 
 
 , Race V 18, 305 
 
 V. Robins 182 
 
 V. Ward 166 
 
 Warkworth, H. v 208 
 
 Warren, Dean and Chapter of 
 
 Ely V 196 
 
 Warrick v. Queen's College, 
 
 Oxford 36, 38, 161, 190 
 
 Watts:;. Kelson 317 
 
 Waud, Wood v 341 
 
 Webb V. Bird 359 
 
 Webb's case, Morse and .... 157 
 
 Weekly, Abbot v 149 
 
 V. Wildmau 195 
 
 Welcome v. Upton 9 
 
 Wells V. Abraham 282 
 
 Wentworth (Lady) v. Clay . . 130 
 West Cumberland Iron and 
 
 Steel Co. V. Kenyon 340 
 
 Wheeldon v. Burrows . . 319, 320— 
 
 322 
 
 VMiK 
 
 Wheeler v. Toulson 20 
 
 Wliidbome v. Ecclesiastical 
 
 Commissioners 220 
 
 Whistler, Bryan v 362 
 
 Whixley, Inhabitants of, R. 
 
 V 82 
 
 Wilcox, Williams v 260 
 
 Wildman, Weekly v 195 
 
 Wilkinson v. Proud 216 
 
 Willes, Wilson v 190 
 
 Williams, Jones v 362 
 
 V. Wilcox 266 
 
 , Wright f 340 
 
 WilHamsou, Chetham r 210 
 
 ■ , Sino-letou r 287 
 
 Willingale v. Maitlaud 196 
 
 Wilson, BeU v 220 
 
 , Rowbotham r 223 
 
 ^ V. WaddeU 340 
 
 • • V. WiUes 190 
 
 Wilts and Berks Canal Navi- 
 gation Co. V. Swindon Water- 
 works Co 334—336 
 
 Wimbledon and Putney Com- 
 mons Conservators v. Dixon 
 
 325, 329 
 Wingfield's case, Coster and. . 187 
 
 Winmill, Boulcott v 132 
 
 Winn, Earl Beauchamp v. . . 239 
 
 Wood, Doe d. Hanley r 210 
 
 V. Hewett 363 
 
 V. Waud 341 
 
 Woodhouse, Clarkson v 187 
 
 Worledg v. Kingswel 170 
 
 Worthington v. Gimson .... 323 
 
 Wray, Robinson v 240 
 
 Wren, Fielding v 277 
 
 Wright, Foster v 270 
 
 V. Howard 331, 332 
 
 V. WiUiams 340 
 
 Wynne, Tyrwhitt v 154 
 
 Yarborough (Lord), Gilford v. 267 
 
 Yard v. Ford 294 
 
 Yarmouth, Mayor, &c. of 
 Great, v. Groom 295 
 
 W.P.
 
 ( xxvi ) 
 
 EEEATA AND ADDENDA. 
 
 Pajros 20, note (/;), 21, note (s). Lord Coke does not distinctly say that 
 the gi-antee of herbagium terrce shall have the underwood, and 
 the ordinary meaning of the tei-m does not go beyond herbs 
 whicli may be cut with a scythe. See Du Cange, voce 
 Herbagium. 
 
 Page 21, note (?<). A right of common of pasture may by custom in- 
 clude a right to cut rushes for litter {Beau v. Bloom, 3 Wils. 
 456 ; S. C. nom. Bean v. Bloom, 2 Sir Wm. Black. 926), also 
 a right to cut branches from oak trees in a park to feed the 
 cattle in time of deep snow (1 RoUe's Abr. Cu-stomes (E) 12). 
 
 Page 78, note (>•), add a reference to stat. 41 & 42 Vict. c. 56. 
 
 Page 151, note {f),for Arktt v. Ellis, read — Arlett v. Ellis. 
 
 Page 161, line 6 from bottom and in margin, for Warivick v. Queen^t 
 College, read— Warrick v. Queen'' s College. 
 
 Page 187, note {d),for Doivglass v. Kindal, read — Dowglass v. Ke>idal. 
 
 Page 195, note («), add a reference to stat. 43 Eliz. c. 11. 
 
 Page 244, note (o), add a reference to Kenrick v. The Overseers of Guilsjield, 
 L. R., 5 C. P. D. 41. 
 
 Page 256, note (/«)> add a reference to stat. 41 «& 42 Vict. c. 56.
 
 PEESCEIPTIVE RIGHTS. 
 
 LECTUEE I. 
 
 The subject of tlie present course of Lectures is the Prescriptive 
 Law of Commons and other prescriptive rights. If any ^^° ^ ^* 
 person claims that he and his ancestors, whose heir he 
 is, have, from time immemorial, or, in legal phrase, 
 from time whereof the memory of man runneth not to 
 the contrary, openly, uninterruptedly and as of right, 
 used and enjoyed any incorporeal hereditament, he 
 claims such hereditament by prescripfion, and the right 
 which he claims is called a prescriptive right. In like 
 manner, if any person is seised in fee of freehold lands 
 or hereditaments, and should claim that he and all those 
 whose estate he hath, from time whereof the memory of 
 man runneth not to the contrary, have used and en- 
 joyed, openly, uninterruptedly and as of right [a), a 
 certain incorporeal hereditament as to such freehold 
 lands and hereditaments belonging or appertaining, he 
 claims a prescriptive right, and the title by which he 
 claims is said to be a title hg prescription. 
 
 A prescription differs from a custom in this — that a Difference 
 custom is local, is alleged in no person, but laid within scri^tion^^ud 
 some manor or other place. For example, as Lord Coke custom. 
 remarks {b) : " I. S., seised of the manor of D. in fee, Example, 
 prescribeth thus, that I. S., his ancestors, and all those 
 whose estate he hath in the said manor, have time out 
 of mind of man had and used to have common of 
 
 {a) "JVi?c per vim, nee clam, nee par. 1, fol. 222 b. 
 precario." Bract, lib. 4, c. 38, (i) Co. Litt. 113 b. 
 
 W.P. B
 
 PRESCRirnVK RIGHTS. 
 
 pasture, &c., in sueli a place, &c.,l3eing the land of some 
 other, as pertaining to the said manor. This properly 
 wo call a prescription. A cnstom is in this manner: 
 A copyholder of the manor of D. doth plead that, 
 within the same manor, there is and hath been such a 
 custom, time out of mind of man used, that all the 
 copyholders of the said manor have had and used to 
 have common of pasture, &c. in such a waste of the lord, 
 parcel of the said manor ; where the person neither doth 
 nor can prescribe but ailed geth the custom within the 
 manor." 
 
 No prescrip- 
 tion for land. 
 
 Exception. 
 
 Touauts in 
 common. 
 
 A title by prescription can only be made to incorpo- 
 real hereditaments. A man cannot by prescription 
 make a title to land; nor can land be appendant or 
 appurtenant, strictly speaking, to other land: though, 
 no doubt, popularly speaking, a certain field may 
 belong, and in this sense may be said to be appurtenant 
 to, a certain farm {c). Still this is popular language 
 only. In law that which is appendant or appmienant 
 to land may be claimed by prescription, and must be 
 incorporeal in its natm^e. An exception to this rule is 
 mentioned by Littleton (r/). lie says that tenants in 
 common may be by title of prescription, as if the one 
 and his ancestors, or they whose estate he hath in one 
 moiety, have holden in common the same moiety with 
 the other tenant, which hath the other moiety, and with 
 his ancestors, or with those whose estate he hath, un- 
 divided, time out of mind of man. This is an exception 
 which can hardly arise at the present day ; and I have 
 only noted it because it is contained in Littleton's 
 Tenures. 
 
 No prescrip- 
 tion for 
 tliiiiK'M not 
 had witlioiit 
 record. 
 
 There are certain incorporeal hereditaments to which 
 a title cannot be made by prescription. For it is laid 
 down in Coke upon Littleton (c), tliat no man can make 
 
 (r) riowdeii, 170, 171. 
 {(I) Sect. 310. 
 
 {<■) Co. Lilt. 114 a.
 
 PRESCRIPTIVE RIGHTS. 
 
 a title by prescription to sucli franchises and liberties as . 
 cannot be seized as forfeited, before the cause of for- 
 feiture appear of record ; because that prescription being 
 but an usage in pais, it cannot extend to such things as 
 cannot be seized nor had n-ithout niaffcr of record, as to 
 the goods and chattels of traitors, felons, felons of them- 
 selves, fugitives, of those that be put in exigent, deo- 
 dands, cognizance of pleas, to make a corporation, to 
 have a sanctuary, to make a coroner, and to make con- 
 servators of the peace. Most of these are ancient fran- 
 chises, the law respecting which is of very little practical 
 use at the present time. All these matters require 
 record both for their grant and their forfeiture, and 
 cannot, therefore, be gained merely by constant and 
 uninterrupted usage. 
 
 It is a maxim of law that all things are presumed to All things 
 be rightly done. "When the law finds a person in the {lo^riglitiy ° 
 undisturbed exercise of any right, it presumes that he <ioiie. 
 has a good title, or rather it does not presume that he 
 came to possession by an unlawful act. In accordance 
 with this principle it is, that fraud is never presumed, 
 but always must be proved. When a person, therefore, 
 is found in the undisturbed enjoyment of some incorpo- 
 real hereditament, and has been in such enjoyment 
 uninterruptedly, as far as memory can extend, the law 
 will presume that he came rightly to it, by some ancient 
 grant which, in the lapse of time, must have been lost. 
 Prescription, therefore, is said to imply a grant; and Prescription 
 nothing can be gained by prescription but such incor- !^ant!^ ^ 
 poreal hereditaments as have always, in legal phrase, 
 lain in grant and not in livery. You will remember 
 that, before the passing of the Act to amend the law of 
 real property (/), corporeal hereditaments did not lie in 
 grant, but were conveyed by other means. 
 
 (/) Stat. 8 & 9 Vict. c. lOG. See Lectures on the Seisin of the 
 Freehold, p. 105. 
 
 B 2
 
 PRESCRirTlVE RIGHTS. 
 
 Legal 
 memoiy. 
 
 Writ of 
 ris-lit. 
 
 1 Ricli. I. 
 
 A right, in order to be gained by prescription, must, 
 until the reign of King William IV., have existed from 
 time whereof the memory of man runneth not to the 
 contrary. And such is still the law as regard all cases 
 of prescription which do not fall within an Act, to which 
 I shall hereafter have to call your attention, commonly 
 called the Prescription Act. It is statute 2 & 3 Will. 
 lY. c. 71. The memory of man originally was, as 
 long as the oldest person in the neighbourhood could 
 remember; but in early times, in order to prevent title 
 by prescription from being recj[uired to be carried too 
 far back, the time of legal memory was limited to certain 
 fixed periods. The time of legal memory was fixed in 
 accordance with the time of limitation in a writ of right. 
 The time of limitation in a writ of right was a certain 
 time prescribed by statute, within which the demandant 
 in the action must prove himself or some of his ancestors 
 to have been seised. Anciently the limitation in a writ 
 of right was from the time of Henry I. After that, 
 by the Statute of Merton (g), the limitation was from 
 the time of Henry II. Afterwards, by the Statute of 
 Westminster the 1st (//), the limitation was from the 
 time of Richard I., or, strictly speaking, from the first 
 year of the reign of llichard I. And, as time passed 
 on, although the limitation of time in writs of right was 
 subsequently reduced to sixty years, yet, so far as pre- 
 scriptive rights were concerned, no alteration was made 
 in the law; and, consequently, the date of legal pre- 
 scription or memory continued to be reckoned from an 
 ODra so very antiquated (as Blackstone remarks (/)) as 
 the first year of the reign of Richard I. 
 
 Proof of pre- Of coursc, in most cases, it would be impossible to 
 
 scnption. prove by direct evidence that any right of common, 
 
 right of way, or other prescriptive right, had been 
 
 (y) Stat. 20 lien. III. c. 8. 
 {h) Stat. 3 Edw. I. c. 39. 
 
 (0 2 Bl. Com. 31, note.
 
 PRESCRIPTIVE RIGHTS. 
 
 enjoyed continuously ever since the fii'st year of the 
 reign of Richard I. And, accordingly, before the 
 Prescription Act, and even now with respect to matters 
 not included in the Prescription Act, the course of 
 evidence used to be, and is as follows : — If it could be Usage for 
 proved that the usage had lasted for the preceding ^^^ ^ ^ 
 twenty years, this was considered ^^yiiim facie evidence 
 of the usage as far as legal memory would extend ; and 
 it thi'ew on the party contesting the prescription the 
 onus of showing that the right had arisen within some 
 period later than the first year of the reign of King 
 Pichard I. But, however long the prescription may 
 have been enjoyed, if clear evidence could be produced 
 that it began at some period later than the first year of 
 the reign of Pichard L, there was an end of the pre- 
 scription. The rule upon this subject was laid down 
 by the Court of King's Bench in the case of The King v. Rcxy. JoUffc. 
 Joliffe (A-). That was a case of quo warranto, calling 
 upon the defendant to show upon what authority he 
 claimed to exercise the office of mayor of the borough 
 of Petersfield. And the defendant pleaded in answer, 
 that Petersfield was an ancient borough, and that from 
 time immemorial there had been a Court leet, or view 
 of frankpledge holden in and for the borough ; and 
 that the juiy sworn and serving at that Court had 
 presented a fit person to be mayor of the borough for 
 one whole year, and that the person so presented had 
 always been sworn in at that Com't before the steward ; 
 and, being so presented and sworn, had executed the 
 ofiice of mayor for one year ; and that, at the Court 
 leet duly holden on such day, certain persons, naming 
 them, good and lawful men, were then and there duly 
 sworn as and for the jury, then and there to serve as 
 the jury, and did serve as the jmy of the said Court ; 
 and, being so sworn and serving, presented the defendant 
 
 (A-) 2 Barn. & Cress. 54.
 
 PRESCRIPTIVE RIGHTS. 
 
 to be iiniyor ; and that he, being so presented, was duly 
 sworn before the steward, and by virtue of the premises 
 claimed to be mayor. To this it was replied, amongst 
 other things, that the Court leet of the borough had 
 immemorially presented a fit person to be bailiff, who 
 is always attendant upon the Court ; that, at the Court 
 mentioned in the pl'ea, the steward nominated the four- 
 teen persons mentioned in the plea, who served on the 
 jury, and issued his precept to the bailiff to summon 
 those persons, and that the Ijailiff did accordingly simi- 
 mon them ; whereas, by the law of the land, the steward 
 should have issued his precept to the bailiff to summon 
 a jury ; and the particular persons should have been 
 selected by the bailiff. To this it was rejoined that, 
 from time immemorial, the steward had been used to 
 nominate the jurors. And issue was joined thereon. 
 At the trial, before Mr. Justice Burrough, the defendant 
 proved that, for more than twenty years, the precept to 
 the bailiff had always contained a list of persons, whom 
 the steward directed him to summon as jurors. No 
 evidence was given for the crown to show that any 
 other practice had ever prevailed in the borough. The 
 learned judge told the jmy that slight evidence, if 
 uncontradicted, became cogent proof ; and they found 
 a verdict for the defendant. And this ruling was 
 upheld by the Court of King's Bench. Chief Justice 
 Abbott was of opinion that a rule which had been 
 obtained for a new trial must be discharged. He said, 
 " Upon the evidence given, uncontradicted and unex- 
 plained, I think the learned judge did right in telling 
 the jury that it was cogent evidence upon which they 
 might find the issue in the afiirmative. If his expression 
 had gone even beyond that, and had recommended them 
 to find such a verdict, I should have thought that the 
 recommendation was fit and proper. A regular usage 
 for twenty years, not explained or contradicted, is that 
 upon which many private and public rights are held,
 
 PRESCRIPTIVE RIGHTS. 
 
 there being nothing in the usage to contravene the 
 pubhc policy. Taking, therefore, the issue to he pro- 
 perly found, we must consider that, by the immemorial 
 custom of this Court leet, the steward has been in the 
 habit of pointing out to the bailiff the persons who are 
 to be summoned on the jury. If that custom be against 
 any known rule or principle of law, it cannot stand, 
 however great its antiquity may be ; but I am of 
 opinion that it is not." Justice Holroyd also agreed 
 that the observations of the learned judge, and the 
 verdict of the jury, were well warranted by the evidence 
 in the cause. 
 
 The question, whether a right, that had long existed, Old grant 
 did or did not commence before the time of legal ^g^ent with" 
 memory, occurred in the case of Addingtoii v. Clock and prescription. 
 others (/). In that case the plaintiff Addington brought ^(^dington v. 
 an action of trespass against the defendant Clode and 
 others, for breaking and entering his close at a place 
 called Upottery. The defendants pleaded (amongst 
 other things) that the defendant Clode was seised of a 
 messuage and lands in Upottery ; and that he and all 
 those whose estate he hath for the time being, had and 
 used, and have been accustomed to have and use, and 
 so still of right ought to have and use, common of 
 pasture, in the place where the trespass was alleged to 
 have been committed, for all commonable cattle levcud 
 and coHcJutiit [m), and he thereupon justifies; and the 
 other defendants justified as his servants. The plaintiff 
 traversed or denied the right of common. And, issue 
 being joined thereon, it was tried at Exeter Summer 
 Assizes, 1774 ; when, after the plaintiff had concluded 
 his evidence, the counsel for the defendant opened two 
 ancient grants without date (copies of which were left 
 with the judges) ; by the first of which, John Beneyt 
 
 (0 2 Sii- W. Black. 989. (w) ^eapost, Lectui-e III.
 
 TRESCRIPTIVE RIGHTS. 
 
 grants to William De Verga all Ms land at Beneytishege, 
 in the manor of Uppoteiy, to have and to hold to him 
 and his heirs, of the chief lords of the fee, rendering to 
 them 6s., by even quarterly payments, annually for 
 all secular services. By the other deed Henry de la 
 Pomereye confirms to William de Verga and his heirs, 
 the same lands which he had of the gift of John Beneit, 
 in the said Henry's manor of Uppoteri, rendering to 
 the said Henry and his heirs Gs-. yearly, by even 
 quarterly payments; and then adds, "And I will and 
 grant, for me and my heirs, that the said William, his 
 heu'S or assigns, shall have with his beasts common 
 pasture on my mountain of Uppoteri." Upon which 
 Justice Nares, who tried the cause, observed to the 
 defendant's counsel, that this grant was entirely incon- 
 sistent with the plea of prescription; in which they 
 acquiesced, and a verdict was given for the plaintiff. 
 Afterwards, in Michaelmas term, the defendants moved 
 for a new trial, on the ground that the grant might 
 have only been in confirmation of an antecedent pre- 
 scriptive right, and then it was not inconsistent with it. 
 Upon this point the Court held that these grants might 
 either have been before the time of memory, or else they 
 might have been only in confirmation of a prior right ; 
 in neither of which cases would they have been incon- 
 sistent with a plea of prescription ; and that it ought to 
 have been left with the jury to decide, whether either 
 of these was the case; and, this not having been done, 
 a new trial was granted. Mr. Justice Blackstonc truly 
 observed that the tcncndioii of the chief lords of the fee 
 aiforded a strong presumption that the grants were 
 subsequent to the statute of Quia ciuptores (;/), and so 
 subsequent to the period of legal memor3% If the 
 grants were subsequent to legal memory, and were not 
 merely in confirmation of a prior right, then the title 
 
 (m) Stat. 18 Edw. I. c. 1. Sec Lectures on the Seisiu of tlie Free- 
 hold, p. 21.
 
 PRESCRIPTIVE RIGHTS. 9 
 
 clearly was not by prescription, but by viiiue of the 
 grants, and ought consequently to have been so j)leaded. 
 
 Now, with respect to the two kinds of prescription. Prescription 
 a prescription of enjoyment by a man and his ancestors, byTmSTTncl 
 and a prescription by a man, seised in fee, of enjoyment his ancestors. 
 by himself and all those whose estate he hath, the latter 
 prescription is by far the most common. A prescription 
 of the former kind is seldom made by a private person. 
 It is, however, occasionally made by corporations, that 
 they and their predecessors have from time immemorial 
 enjoyed such a right. With regard to private persons, 
 I am not aware of more than two cases, in modern 
 times, where a prescription of this kind, viz. a prescrip- 
 tion of enjoyment by a man and his ancestors, irrespec- 
 tive of the possession of land, has been set up. The 
 first of these cases is that of Welcome v. Uj^ton {o). Welcome \. 
 That was an action of trespass, for taking the plaintiff's ^•^^''''"' 
 cattle depastming in a certain open field, and impound- 
 ing the same. The defendant pleaded that, before and 
 at the time of making the indenture thereinafter men- 
 tioned, one Thomas Brereton, (oul all his ancestoys, wJiosc 
 heir he then teas, from time whereof the memory of man 
 was not to the contrary, had, and every of them had, 
 been used and accustomed to have, and of right ought 
 to have had, and the said Thomas Brereton at the time 
 of making the said indenture of right ought to have 
 had, for himself and themselves, his and their heirs and 
 assigns, the sole and several herbage and pasturage of Several jms- 
 and in divers, to wit, 217a. 2r. 3p. of and in the said *^®' 
 open field, in gross, for all manner of his and their 
 cattle to feed and depastm-e thereon, from the 4th day 
 of September in each and every year, until the oth day 
 of April next following ; that the said Thomas Brereton, 
 on the 19th of April, 1755, by indenture made between 
 
 {o) 6 M. k W. 536.
 
 10 
 
 PEESClllPTl-NE RIGHTS. 
 
 Proof of Im- 
 memorial en- 
 joyment by a 
 man and his 
 ancestors. 
 
 Prescriptive 
 right gained 
 l)y imme- 
 morial enjoy- 
 ment by a 
 
 Liin and Samuel Billingsley, granted to tlie said Samuel 
 Billingsley the said sole and several herbage and pas- 
 turage of and in the said 217a. 2r. 3p. in the said field, 
 to hold the same unto the said Samuel Billingsley, his 
 heirs and assigns, for ever. The plea then stated the 
 vesting of the right to the said herbage and pasturage, 
 on the 1st of January, 1826, in J. E.. F. Billingsley ; 
 and that he demised the same, on the 1st of March, 
 1836, to the defendant, and justified the seizing and 
 impounding the plaintiff's cattle on the ground of their 
 being upon and depasturing the land in question. There 
 had been certain interruptions in the right by building 
 and enclosing part of the 217 acres of land. And one 
 of the questions in the case was as to the effect of these 
 interruptions. It was held that the interruptions, being 
 recent, did not interfere with the right of pastiu-age. It 
 was also held that the plea of immemorial enjoyment 
 by Thomas Brereton and his ancestors was proved, by 
 showing enjoyment by those who claimed under him, 
 particularly by a deed dated 23rd October, 1800, which 
 related to the right of pasturage in question, and also 
 by the deed of 1755, by which Thomas Brereton granted 
 the right of pasturage to Samuel Billingsley. Baron 
 Parke said it was certainly evidence of a seisin in fee of 
 Thomas Brereton, that parties, afterwards coming in 
 under him, enjoyed the riglit in the same manner in 
 which he claimed to enjoy it. The Court also held that 
 the plea was good, that a party may prescribe to take the 
 sole and several herbage of land, this having been estab- 
 lished as law by two cases, Hopkins v. llohins and Potter 
 V. North, to which I hope hereafter to refer. Both cases 
 will be found reported in Serjeant Williams's edition of 
 Saunders's Reports (;;) . Another question arose whether 
 a right of this land, gained by the immemorial exercise 
 of a right by a man and his ancestors, could be granted 
 
 [j)) JloskiidiX. IlohuiK, 2 AVms. Saund. 320; Potter y. Xorth, 1 Wms. 
 Saund. 347.
 
 PRESCRIPTIVE RIGHTS. 11 
 
 away from liis heirs ; and, on this point, the Court was man and his 
 of opinion that, although the right was gained by the be^^ranted^by 
 personal user of Brereton and his ancestors, yet that ^^^ 
 there could be no doubt that he was not bound to use it 
 by himself and his descendants only, and that the par- 
 ties claiming under him were equally entitled to it, 
 whether they claimed under him by deed or by descent. 
 
 The next case of a claim by prescription by reason of 
 user by a person and his ancestors, is that of Shuffle- Shiutku-orth 
 
 Y. Le Ikming. 
 worfh V. Lc Fleming and others {q). This was also an cjaim of 
 
 action of trespass against the defendants, for that they right of fish- 
 entered into a certain close of the plaintiff, being part and his an- 
 of certain lands called the Low Bank Grround Estate, cestors. 
 and landed and brought, unto and upon the said close, 
 certain fishing nets, and thereby damaged the grass of 
 the plaintiff there then growing. To this it was 
 pleaded by the defendants, amongst other things, that, 
 at the time when the alleged trespass was committed, 
 the said close adjoined and was, and now is, part of the 
 shore of an inland lake of water called Coniston or 
 Thurston Water, and that the defendant Hughes Le 
 Fleming and all his ancestors, ivhose heir he teas, for 
 sixty years before this suit, enjoyed as of right and 
 without interruption, a free fishery in the said water, 
 with the right of landing and bringing their fishing 
 nets into and upon any part of the shore of the said 
 water, as to the said free-fishery appertaining ; and 
 that the defendant Hughes Le Fleming, and the other 
 defendants as his servants, and by his command, did 
 what was complained of, in the lawful and reasonable 
 use and exercise of the said right, and not otherwise. 
 This you will observe Avas not a plea of immemorial 
 usage, but a plea of usage for sixty years ; and it had 
 reference to the time mentioned in the Prescription 
 
 {q) 19 C. B., N. S. 687.
 
 12 PRESCRIPTIVE RIGHTS. 
 
 Act(r). The question wliich the Coiu-t decided was, 
 that a claim of this kind was not within the provisions 
 of the Prescription Act, and that the plea was bad, and 
 that a demuiTcr which had been put in by the plaintiff 
 to this plea ought to be allowed. The case, however, 
 affords an instance of the claim of a right, which 
 certainly now is rare, namely, a right of a private 
 person, irrespective of the possession of land, and so a 
 right in gross, as it is called, for the enjoyment of an 
 incorporeal hereditament, founded merely on user by 
 himself and his ancestors. 
 
 Claim by cor- Corporations not unfrequently claim by prescription 
 iminemorial ^^^^ they and their predecessors have from time imme- 
 vight cxor- morial exercised certain rights. An instance of this 
 
 cised by them ^.^ n-ji , c t ? -n /\ 
 
 and their kind occurrcd m the recent case oi Johnson v. Barnes [s). 
 predecessors, j^^ ^]^j^^ ^^^^gg ^l^g corporation of Colchestor claimed, by 
 
 Johnson v. n • • i ^ • • ^ l s. 
 
 Barnes. reason 01 unmemoriai usage, an exclusive right oi 
 
 pasture in certain lands round the walls of the town, 
 for all cattle, sheep and other commonable animals, 
 levant and couchant, within the borough, from Lammas 
 to Candlemas, save as to any part of the land sown, at 
 or before the commencement of such period, with corn 
 or other grain ; and, in that case, only after such crops 
 should be harvested or otherwise removed in a due 
 coiu-se of husbandry. This right they had on various 
 occasions, and for valuable consideration, released to 
 the owners of part of the lands ; and, in some instances, 
 the rights of the corporation had been conveyed to 
 strangers, who had exercised similar rights. In some 
 of the deeds, the right was described as a right of 
 common. This description was erroneous ; for a right 
 to the sole pasture of lands is not a right of common ; 
 a right of common being a right of pasturage in 
 
 (;•) Stat. 2 & 3 Will. IV. c. 71, (*) L. R., 7 C. P. 592, affirmed 
 
 2Jost, Lecture XII. ou appeal, L. E., 8 C. P. 527.
 
 PRESCRIPTIVE RIGHTS. 13 
 
 common with the owner of the soil (/). But, not- 
 withstanding this erroneous description, which was 
 several times repeated, the Court held that a legal 
 origin must, if possible, be presumed for a long estab- 
 lished practice ; and that what the corporation was 
 entitled to was an exclusive right of pasturage over the 
 lands in question ; and that the right was established 
 by the immemorial exercise of such right by the pre- 
 decessors of the corporation, not as appendant or ap- 
 purtenant to the lands within the borough, but as a 
 right, irrespective of appendancy or appurtenancy, be- 
 longing in gross to the corporation by reason of the 
 ancient user of their predecessors. 
 
 But, although a private individual may prescribe by 
 reason of the immemorial enjoyment of himself and his 
 ancestors, and although a corporation may prescribe by 
 reason of the immemorial enjoyment of themselves and 
 their predecessors, yet the inJtahitants of a place, who Inhabitants 
 are not a corporation, cannot prescribe for any right of sOTib°V^^" 
 common, as having been enjoyed from time immemorial common, 
 by them as inhabitants of the place. This was decided 
 in GateicanVs case {n). In that case an action of trespass Gateward's 
 was brought by Eobert Smith against Stephen Grate- '^"^^• 
 ward, gentleman, because he broke into a close at 
 Horsiugton, in the county of Lincoln, called Horsington 
 Holmes, with certain cattle, viz., horses, cows and sheep. 
 And the defendant pleaded that the town of Stixwold 
 is an ancient town, and lies contiguous to the said close 
 called Horsington Holmes, ; and that, within the same 
 town, there exists, and from all times whereof the 
 memory of man runneth not to the contrary there has 
 existed, a custom that the inhabitants within the same 
 town of Stixwold aforesaid, inhabiting any ancient 
 messuage there, by reason of their dwelling and residing 
 
 {t) Co. Litt. 122 a. («) 6 Rep. 59 b.
 
 14 PRESCRirXlVE EIGHTS. 
 
 in the same, had, and were used and accustomed to have 
 common of pastm-e in the aforesaid place, in which the 
 alleged trespass was committed, for all and all manner 
 of oxen and horses and other large commonable beasts, 
 on their ancient messuages, within the aforesaid town of 
 Stixwold, in manner and form following, viz., in every 
 year at all times of the year, and also for sheep, levant 
 and couchant, in every year on the first day of August 
 and thenceforth to the feast of the Annunciation of the 
 Blessed Virgin Mary then next following, and he 
 pleaded that he, at the time aforesaid, v/as and still is 
 residing and inhabiting in the said town of Stixwold, in 
 an ancient house in Stixwold aforesaid, and so justified ; 
 upon which the plaintiff did demur in law. And this 
 plea it is stated was often times argued at the bar ; and 
 now, this Hilary Term, the 4th of James I., it was 
 openly argued at the bench by all the justices. And 
 it was unanimously resolved by all the justices of the 
 Common Pleas, that the custom was against law for 
 several reasons, amongst others, that this kind of common 
 was not known to the law. What estate, it was asked, 
 shall he have, who is an inhabitant, in the common, 
 when it appears he hath no estate or interest in the 
 house, but a mere habitation and dwelling in respect of 
 which he ought to have his common ? For none can 
 have interest in common in respect of a house in which 
 he hath no interest. Such common would be transitory, 
 and altogether uncertain ; for it will follow the person, 
 and for no certain time or estate, but during his inhabi- 
 tancy : and such manner of interest the law will not 
 suffer ; for custom ought to extend to that which hath 
 certainty and continuance. And it was said also to be 
 against the nature and quality of a common ; for every 
 common may be suspended or extinguished ; but such a 
 common will be so incident to the person, that no person 
 certain can extinguish it ; but as soon as he who 
 releases, &c. removes, the new inhabitant shall have it.
 
 rRESCRIPTlVE RIGHTS. 15 
 
 In addition to this objection Lord Coke remarks {.r), 
 that the custom, in the case at bar, was insufficient and 
 repugnant in itself ; for it was alleged that the custom 
 of the town of Stixwold was, that every inhabitant 
 thereof had used to have common within a place in the 
 town of Horsington, which was another town. The 
 custom, if valid as a custom, ought to have been alleged 
 as a custom of the town of Horsington, and not of the 
 town of Stixwold. This, however, was, by the bye : the 
 main point of the case is that inhabitants, as such, 
 cannot have any right of common, or any right of the 
 same kind. 
 
 It is true that in the old books rights of common are 
 not unfrequently spoken of as being enjoyed by tenants Tenants and 
 and inltahitants. This, so far as the word inhabitants is ^ a i an s. 
 concerned, appears to be popular language only. If all 
 the tenants in fee in a town, or parish, or manor, have 
 a right of common, as they may have, this right is 
 necessarily enjoyed by their tenants, who occupy the 
 land ; and, in this way, it may be said that the right 
 belongs to all the tenants and inhabitants. But in law 
 the right in such a case is the right of the freeholder, 
 though exercised by his tenant, who is in the actual 
 occupation of his lands. 
 
 In my next Lecture I hope to speak of rights claimed 
 by a person seised in fee by reason of the continuous 
 enjoyment of himself and those whose estate he has. 
 
 (.r) Page 61a.
 
 IG 
 
 rRESCRirTIVE RIGHTS. 
 
 LECTURE II. 
 
 Prescription 
 in a que 
 
 estate. 
 
 Prescription 
 in name of 
 tenant in fee. 
 
 Gateward''s 
 case. 
 
 I NOW come to tlie consideration of siicli prescriptive 
 rights as are claimed by reason of the continuous and 
 immemorial enjoyment thereof by the claimant, a 
 person seised in fee, and by all those whose estate he 
 has. This is called a prescription in a que estate. The 
 phrase is taken from the Noraian-French : — that he, 
 and all those whose estate he has, have from time 
 immemorial enjoyed the right : — tous ceux que estate il 
 ad. Now one of the ancient rules of pleading with 
 regard to a prescription of this kind was this : — ^that 
 such a prescription must always have been laid in the 
 person who was seised in fee simple. It was said that 
 a tenant for life, for years, or at will, or a copyholder, 
 could not prescribe in this manner, by reason of the 
 imbecility of their estates ; for, as prescription is always 
 beyond the time of memory, it would be absurd that 
 those, whose estate commenced within the memory of 
 man, should pretend to prescribe for anything. There- 
 fore a tenant for life must have prescribed under cover 
 of the tenant in fee simple, and a copyholder under 
 cover of his lord. This rule is now abolished by the 
 fifth section of the Prescription Act, 2 & 3 Will. IV. 
 c. 71, to which I shall hereafter refer. Its princij)le is 
 explained in GateicanVs case ((?), to which I called 
 attention in my last Lecture (/>). It is there said, that, 
 by the rule in all our books, without question, tenant 
 in fee simple ought to prescribe in his own name ; 
 tenant for life, years, by elegit, &c., and at will, &c., in 
 the name of him who hath the fee ; and he who hath 
 
 {a) G Rep. 60 a. 
 
 (i) Ante, p. 13.
 
 PRESCRIPTION IN A QUE ESTATE. . 17 
 
 no interest can have no common. The passage then 
 conckides with a sentence which certainly conveys no 
 meaning, and which I have ascertained to be merely a 
 mistranslation of the original, which was written in Mistransk- 
 Norman French. The words in the English copies of ^fV"^ '"^P^^"* 
 
 o ^ or Gateii-ard s 
 
 uoke s iieports to which I refer are these : "So none case. 
 that hath no interest, if it be but at will, ought to have 
 common ; but by good pleading he may enjoy it " — 
 words which evidently have no meaning. The true 
 translation is as follows : — " So there is none, that hath 
 any interest, though it be but at will, and who ought to 
 have common, but by good pleading may enjoy it." The 
 passage means that a person, who is merely a tenant at 
 will, and who, as tenant at will, has a right of common, 
 may enjoy his right by good pleading, namely, by 
 pleading in the name of the tenant in fee simple. 
 
 A copyholder, you may remember, is at law but a Copyholder 
 tenant at will to the lord of the manor of which he thrname of^ 
 holds. According to the doctrine above laid down, ^"^ ^o^'*^- 
 therefore, if a copyholder should, as occasionally he 
 might, have claimed a right of common in the lands of 
 any other person than his lord, he must have prescribed 
 in the name of his lord. The rights of copyholders, 
 however, are usually rights of common in the lands of 
 the lord himself ; and, in respect of such rights, it is 
 obvious that they cannot prescribe in the name of the 
 lord himself ; as the lord, any more than any other 
 person, cannot bring an action against himself. In 
 order, therefore, that the copyholders may have some 
 legal remedy, an exception has been made in their 
 favour ; and they are allowed to insist upon their rights CopylioHer 
 of common by alleging a custom within the manor, that ™custom°as 
 all the copyhold tenants have such a right. This against his 
 departure from the ordinary rules of pleading, appears 
 to have been made by reason of the necessity of the 
 case. 
 
 W.P. c
 
 IS 
 
 PKESCKIPTIVE RIGHTS. 
 
 Profit a 
 prendre. 
 
 Dominant 
 tenement. 
 
 Servient tene- 
 ment. 
 
 Several ves- 
 ture or herb- 
 age. 
 
 Several pas- 
 ture. 
 
 Common of 
 pasture. 
 
 Estovers. 
 
 Botes. 
 
 Sand, gravel, 
 clay, loam. 
 
 Coals. 
 Sporting. 
 
 Fishing. 
 
 Taking 
 water. 
 
 Now there are a great many things, in respect of 
 which a title may be made, by prescription of imme- 
 morial enjoyment by the claimant, seised in fee, and by 
 those whose estate he has. One important kind of 
 prescription is that which is called a prescription of a 
 2)rofit a prendre, or a right for any man, in respect of his 
 tenement, to take some profit out of the tenement of 
 another man. Borrowing from the language of the 
 ci^vdl law, the tenement in respect of which the profit is 
 taken, is called the dominant tenement; and the tene- 
 ment out of which the profit is taken is called the 
 servient tenement. The most important kinds of 2)^'oJit a 
 2)rendre are, rights of sole or several vesture or lierhage, and 
 of sole or several pasture, and rights of common of pasture, 
 or to pasture in common with the owner of the soil ; 
 also rights of common of what is called in Norman 
 French estovers, and in Saxon botes ; that is, rights of 
 cutting timber, underwood, gorse or furze, and such 
 like, for fuel to burn in the house, called /re bote, or for 
 the repairs of the house and farm buildings, called 
 lioiise bote, or for the repairs of hedges and fences, called 
 hedge bote, or for the repairs of instruments of hus- 
 bandry, called pjlough bote, all of which I mentioned in 
 one of my Lectures of last year {c) . There may also be 
 a prescription for taking sand, gravel, clay, and loam for 
 the repairs of the roads or for the improvement of the soil 
 of the dominant tenement ; also a prescriptive right of 
 digging coals for fuel, A right of sporting over the lands 
 of another, is also an instance of a right oi profit a prendre; 
 so also is a right of fishing in another man's water. But 
 a right to take water is not looked upon as a right of 
 profit a prendre, but merely as an easement {d). 
 
 Sole or I propose first to consider the right of sole or several 
 
 severa \es-^^ rc6Y?frp or herbage, which, though perhaps not very 
 
 ture or 
 age 
 
 (c) Lectures on Settlements, p. 
 230. 
 
 {(l) Race V. Ward, 4 E. & B. 
 
 702.
 
 TRESCRIPTION IN A QT'E ESTATE. 19 
 
 frequent, is yet a remarkable species of prescription. 
 The main authority with respect to such an interest as 
 this is what is said by Lord Coke, in Coke upon Little- 
 ton (e). " If a man hath 20 acres of land, and by deed 
 granteth to another and his heirs irshirani terrce, and 
 maketh livery of seisin secundum fovmam cJiarfce, the 
 land itself shall not pass, because he hath a particular 
 right in the land ; for thereby he shall not have the 
 houses, timber-trees, mines and other real things, parcel 
 of the inheritance, but he shall have the vesture of the 
 land, that is, corn, grass, underwood, sweepage and the 
 like ; and he shall have an action of trespass quare 
 clausum /regit. The same law if a man grant hcrhagium 
 terrce he hath a like particular right in the land, and shall 
 have an action quctre clausum f regit ; but by grant thereof 
 and livery made, the soil shall not pass as is aforesaid." 
 In this case Lord Coke evidently did not intend to say, 
 that livery of seisin secundum formctm chartcB was neces- 
 sary in a case of this kind. His meaning is, that if 
 there be a grant by deed, yet, notwithstanding that 
 livery of seisin be made, no interest in the soil will pass 
 under a grant of this kind, but the mere right to have 
 the corn, grass, underwood and the like ; and such a 
 right is not a corporeal but an incorporeal hereditament. 
 Lord Coke tells us in another place (/'), that " a man may 
 prescribe or allege a custom to have and enjoy solum ves- 
 turam terrce from such a day till such a day, and hereby 
 the owner of the soil shall be excluded to pasture or feed 
 there." But that for which a man can prescribe is clearly 
 an incorporeal, and not a corporeal hereditament ; and 
 there is not in this case the slightest interest in the 
 soil ; though, during the time for which the right may 
 be exercised, it is quite proper that the grantee should 
 be protected in the enjoyment of the exclusive possession. 
 The grantee of the sole or several vesture may accord- 
 
 (e) Co. Litt. 4 b. Sir George Sj^arke^s rrcscription, 
 
 if) Co. Litt. 122 a. See also Winch, 6. 
 
 c 2
 
 20 
 
 PRESCRIPTIVE RIGHTS. 
 
 Thorns. 
 
 Prima 
 tonsura. 
 
 May be held 
 by coi^y of 
 Coiirt roll. 
 
 ingly, as Lord Coke says, bring an action of trespass. 
 And in another place {[/), Lord Coke says, that "if a 
 man demiseth the vestm^e or herbage of his land, he 
 may reserve a rent, for that the thing is manurable {//), 
 and the lessor may distrain the cattle upon the land." 
 So the owner of the several herbage or vesture might, 
 before the action of ejectment was abolished, have 
 brought ejectment (?■). But, having no interest in the 
 soil, he cannot dig the land (/.•). He may, however, 
 enclose (/). As the whole of the herbage may belong to 
 a man by prescription, so he may prescribe for a limited 
 right, as to take the whole of the thorns growing on a 
 certain parcel of land, to expend and burn in his 
 house {■})/). So the herbage may not only be granted as 
 prescribed for indefinitely, but, as we have seen (»), a 
 man may prescribe to take the herbage for some defined 
 period, as from such a day to such a day. So the first 
 niowmg, prima tonsura, or prima vcstura, may be granted 
 or prescribed for, and so may also the afteiTiiath. 
 These interests are all of the same character, and have 
 the same incidents. The herbage or vesture of land 
 may be granted by copy of Court roll to a man and his 
 heirs, and so may also the underw^ood, only without the 
 soil (o). We have seen (7;) that vesture or herbage 
 includes the imderwood. So prima tonsnra may be held 
 by copy {q). The reason why these things may be 
 granted by copy, is that, though they are no part of the 
 
 {fj) Co. Litt. 47 a. 
 
 (//) lu all the printed editions 
 which I have seen, tliis word is 
 spelt maynorable, but there is no 
 such word as this in the English 
 language. Serjeant Coxe appears, 
 from his MS. notes to Co. Litt. 
 in Lincoln's Inn Library, to have 
 read the word as ' ' manurable, ' ' 
 which is the only word that makes 
 sense of the passage. 
 
 (0 Wheeler v. Toiihon, TTardros, 
 
 330; Wardy. Tcfifer, Cro. Car. 362. 
 
 (/.) Trin. 30 Eliz.; Owen, 37. 
 
 \l) Dyer, 285 b, pi. 40 ; Vin, 
 Abr. tit. Herbage (a). 
 
 (/w) Doivglass v. Kendal, Cro. 
 Jac. 2.56. 
 
 («) Ante, pp. 9, 12. 
 
 (o) Co. Litt. 58 b; Eoe v. Tay- 
 lor, 4 Kep. 30 b. 
 
 {iJ) Ante, p. 19. 
 
 {q) Stammers v. Dixon, 7 East, 
 200.
 
 rRESCKirTION IN A QUE ESTATE. 21 
 
 soil, yet tliey are " thiugs of perpetuity to which custom 
 may extend," and, after every cutting, they grow 
 again (r). 
 
 Our next subject for consideration is the right of Sole pastm-e. 
 sole or several pasture. This right appears to differ 
 from that of sole or several vesture or herbage, in that 
 it can only be taken by the mouths of cattle, Avhereas 
 the owner of sole or several vesture or herbage may 
 mow the grass. The underwood also belongs to the 
 owner of the sole or several vesture or herbage (s) ; but 
 it does not belong to the owner of sole or several 
 pasture (/). Pasture, in its widest sense, comprises all What pas- 
 vegetable products that may be eaten, such as grass, prises, 
 nuts, acorns, the mast of trees, the right to which is 
 known by the name of pannage, and even leaves and 
 boughs {\i). The right of sole pasture often exists for 
 a limited time, but it may be prescribed for in perpetuity. 
 The two cases, by which the lawfulness of such a pre- 
 scription is established, are those of Potter v. North {x), 
 and UosJiins v. JRohins {//). I mentioned both these 
 cases in my last Lecture (;:) ; but, as they are cases of 
 importance, they deserve more than a passing remark. 
 The case of Potter v. North was an action of trespass Potter v. 
 brought by John Potter against Henry North, for 
 taking and unjustly detaining a horse called a nag, of 
 him the said John. And the defendant justified the 
 taking as bailiff of Sir Henry North, Bart., on the 
 ground that the place called the Fenn, in which the 
 taking of the horse was supposed to be done, contained 
 
 (;■) 4 Rep. 31 a. (.t) 1 Wms. Saimd. 347. 
 
 (*•) Co. Litt. 4 b. {>j) 2 Wms. Saund. 320 ; 2 
 
 [t) Eopklns V. Robinson, 1 Mod. Keble, 758, 842 ; 1 Vent. 123, 
 
 74; *S'. C. nom. UosJiins v. Robins, 163: S. C. nom. Hojjkins \ . Robin- 
 
 1 Vent. 164. son, 1 Mod. 74; 2 Lev. 2. 
 
 («) Bracton, lib. 4, c. 38, fol. (r) Ante, p. 10. 
 222 b ; Britton, c. 55, fol. 143 b.
 
 rilESCRlPTlVE RIGHTS, 
 
 a thousand acres of pasture with the appurtenances, in 
 Mildenhall in the county of Suffolk, of which a certain 
 place called the Delfe, containing one hundi-ed acres of 
 pasture with the appurtenances, was from time imme- 
 morial the proper soil and freehold of the said Sir 
 Henry North, Baronet. And because the horse of 
 John Potter was in the said one hundred acres of 
 pasture, eating up the grass there growing, and doing 
 damage there to the said Sir Henry North, Bart., he the 
 said Henry, as bailiff to Sir Henry North, distrained the 
 horse, so as aforesaid doing damage there. To this 
 John Potter, the plaintiff, pleaded that the one hundred 
 acres of pastm^e called the Delfe, were parcel of the 
 place called the Fenn ; and, for all times aforesaid, were 
 parcel of the manor of Mildenhall, with the appurte- 
 nances in Mildenhall, of which manor Sir Henry North 
 was lord ; and that he, John, was seised in his demesne 
 as of fee of and in an ancient messuage in Mildenhall 
 aforesaid, being one of the freehold tenements of the 
 manor, and held of the manor by rents and services ; 
 and that there were in Mildenhall aforesaid, divers 
 ancient messuages, being freehold tenements held of the 
 manor in fee simple, by several rents and services ; and 
 that there were within the manor divers ancient mes- 
 suages, being customary tenements, parcel of the said 
 manor, granted and grantable by the lord of the said 
 manor for the time being, at the will of the lord, accord- 
 ing to the custom of the said manor, by copy of the rolls 
 of the Court of the said manor ; and that the several 
 tenants of the said freehold tenements, being seised of 
 their several tenements in their demesne as of fee, and 
 all those whose estate they severally have in the same, 
 for all the time aforesaid have had, together with the 
 said tenants of the said customary messuages, the sole 
 and several pasture of the said one huudi'ed acres of 
 pasture, for all their cattle (swine, sheep and northern 
 steers excepted) levant and couehant upon their said
 
 PRESCllIPTION IN A QUE ESTATE. 23 
 
 respective freehold tenements, every year at all times of 
 the year, as to their several freehold tenements belonging 
 and appertaining. And that in the same manor there 
 was such a custom, that the several tenants of the said 
 customary messuages, together with the said free tenants, 
 were used and accustomed to have the sole and several 
 pasture of the said one hundred acres of pasture for all 
 their cattle (swine, sheep and northern steers excepted) 
 levant and couchant {a) upon their several customary 
 tenements aforesaid, every year at all times of the year, 
 as to their several customary tenements belonging and 
 appertaining. And the said John, being so seised of 
 the said messuage with the appurtenances in form afore- 
 said, he, the said John, before the time of taking of the 
 horse, put the horse in the declaration specified, being 
 his own proper horse, levant and couchant upon his 
 messuage, into the said one hundred acres of pasture 
 called the Delfe, to depasture the grass there and then 
 growing ; and the horse, at the time of the taking, was 
 in the said one hundred acres of pasture called the 
 Delfe, eating up the grass there then growing, until the 
 horse was taken. Henry North the defendant demurred 
 to the plea as insufficient in law ; but the Court seemed 
 to incline that the plea was good ; but they directed 
 that there should be a trial at Bar to try the truth of 
 it. And afterwards in Easter term a trial at Bar was 
 held ; but the tenants could not prove their title, as they 
 had alleged it ; wherefore the lord had a verdict, and 
 so there was no judgment in this case upon the de- 
 murrer. This was in the 21st year of the reign of King 
 Charles II. But in the 23rd year of the same reign, the 
 case of Iloshins v. Robins was decided {b) . This was a case iiosl-ins v. 
 of a similar kind, though claimed by copyholders only, "'■*' 
 
 (ff) Literally, "rising up and {b) 2 Wms. Saund. 320; 2 
 
 lying down" or maintained on Keble, 758, 842; 1 Vent. 123, 
 
 their premises. See 2^ost, Lee- \(SZ; S.C. nova. Ro2}l-uis y. Eobin- 
 
 tiu-e III. son, 1 Mod. 74 ; 2 Lev. 2.
 
 PRESCRIPTIVE RIGHTS. 
 
 and not by freeholders. The chaira was, that within 
 the manor of Blisland, in the county of Cornwall, there 
 are, and from time whereof the memory of man runneth 
 not to the contrary, were divers customary tenements, 
 parcel of the said manor, and demised and demisable by 
 copy of Com-t roll of the said manor, at the will of the 
 lord, according to the custom of the said manor ; and 
 that within the said manor there is, and from time 
 whereof, &c., there was, a custom that all the customary 
 tenants of the customary tenements of the said manor 
 have had, and have used and been accustomed to have, 
 sole and several pasture in the said places, in which the 
 cattle were sei^d, yearly and every year for the whole 
 year, at their will and pleasure, as belonging to their said 
 customary tenements. The plaintiff Hoskins alleged that 
 the said customary tenants had given him leave and 
 licence to put in his cattle into the land in question, for 
 which they were distrained by Eobins. And then 
 Hoskins brought an action of replevin against Eobins, 
 on the ground that the distress was illegal. Several 
 objections were taken to the custom which the plaintiff 
 set up, all of which were overruled by the Court. On one 
 point they doubted, viz. this, that the plaintiff ought to 
 have shown a licence by deed from the customary tenants 
 to put in his cattle, inasmuch as the right was one of an 
 incorporeal nature, and could not be granted without 
 deed. Judgment however was given for the plaintiff, 
 as, it being found that there was such a custom, the 
 Court would presume the licence to be such a good 
 licence as the law requires. You -VNdll observe in the 
 case of Potter v. North (c), the difference in pleading 
 with respect to the rights of the freeholders and coj^y- 
 holders. The freeholders prescribed as being seised in 
 fee, and claimed the right as having been exercised by 
 themselves and all those whose estate they had. As to 
 the copyholders, the right was properly laid as a custom 
 
 ((■) Ante, p. 22.
 
 PRESCRIPTION IN A QUE ESTATE. 25 
 
 within the manor of which they are tenants {d). You 
 will also observe that in the case of HosJdns v, Ilobins, 
 nothing was said about the cattle being levant and 
 couchant upon the lands of the copyholders ; because 
 here the copyholders claimed all the herbage, and wholly 
 excluded the lord ; therefore it was not material Avhether 
 all the grass was depastured by cattle levant or couchant, 
 or any others ; for there is no more mischief or wrong 
 to the lord in one case than in the other. 
 
 It has however been held that if a claim for sole and Sole pasture 
 exclusive pastiu-e is confined to sheep and lambs, as "^ ^ *^*^^^' 
 appmienant to a particular farm, there, the lord or 
 owner of the soil, having the right to put in his cattle, 
 other than sheep or lambs, no more sheep and lambs can 
 be put on the land than such as are levant and couchant 
 upon the farm in question. This was decided in the Joiirs v. 
 case of Jo)ies v. Richards (e). This however is merely 
 an instance of a peculiar right of common. 
 
 The case of HosJiiiis v. Bohii/s was argued by PoUex- Pollexfen's 
 fen for the defendant, and by Saunders for the plaintiff . ^oX;w v 
 Mr. PoUexfen afterwards became Lord Chief Justice of Robins. 
 the Court of Common Pleas, and published a volume of 
 reports. Although he lost the case of Hoskins v. Robins, 
 yet he seems to have thought that his argument in that 
 case was too good to be lost ; and accordingly he in- 
 serted in his reports (/), a copy of the argument which 
 he used on that occasion. This argument, inserted as it 
 is in Pollexfen's Peports, seems more than once to have 
 been mistaken for the judgment of the Coiu't. The 
 judgment of the Court however was against PoUexfen 
 on all the points, except the last, which, as you will 
 remember, related to the question as to whether a licence 
 to use an incorporeal hereditament ought not to have been 
 
 [d) Ante, pp. 2, 17, 23. (/) Pages 13—23. 
 
 \e) 6 Adol. & Ell. 530.
 
 26 rRESCRlPTIVE RIGHTS. 
 
 made by deed. I mention this fact, because you will 
 find, in some text books, the argument of Pollexfen in 
 Soskins v. Robins, cited in support of some of the pro- 
 positions which he advocated ; but which propositions 
 were in fact all overruled by the judgment of the 
 Court. I have also known the same mistake made by 
 counsel in Com-t in the argument of cases of this kind. 
 So much then for a several pasture : it is not any 
 interest in the soil ; if it were, it could not be claimed 
 by prescription. It is a right which, as we have seen {g), 
 may be claimed by the continuous exercise of it, either 
 by a man and his ancestors, whose heir he is, or by a 
 corporation and their predecessors, or by a person seised 
 in fee and by all those whose estate he has. 
 
 I wish now to call your attention to two cases which 
 seem to me strikingly to illustrate these propositions. 
 Coxy. Glue. The first is the case of Cox v. Ghie{]i). In that case 
 the plaintiffs, Messrs. Cox, were seised in fee of a close 
 called Siddals, in the parish of St. Peter, in the county 
 of Derby ; and the burgesses and freemen of the 
 borough of Derby had the exclusive possession of the 
 Siddals, from the 6th of July to the 14th of February 
 in every year for the pm'pose of turning in their horses, 
 cows, sheep and calves. It appeared that the county 
 races had for some years past been run on this piece of 
 land. And the action was an action of trespass against 
 the defendant Glue for erecting a booth on the land, at 
 the time of the races, in the month of August, 1845, 
 which was during the time that the burgesses and 
 freemen of the borough of Derby had the several 
 pasture of the field. The question was as to the right 
 of possession of the soil ; and the Court held that the 
 possession of the soil remained in Messrs. Cox, who 
 were the owner of the fee simple in the land, and that 
 such possession enabled them to bring an action of 
 
 [(j) Ante, pp. 9, 12, 21. (A) 5 C. B. 533.
 
 PRESCRIPTION IN A QUE ESTATE. 27 
 
 trespass against Grlue, in consequence of liis having 
 driven the posts of his booth some depth into the soiL 
 The soil was theirs, and Glue, by driving the posts into 
 the soil, injured the land of which they had possession, 
 and rendered himself liable to an action of trespass. 
 The Court at the same time held that the burgesses and 
 freemen of the borough of Derby, had such a right of 
 possession of the mere surface as would enable them to 
 bring an action of trespass against persons who damaged 
 the grass by walking or riding over it. It is evidently 
 necessary for the protection of the rights of a person, 
 whose cattle, and whose cattle alone, have a right of 
 feed in a certain field, that he should be enabled to 
 bring an action against any person who may interfere 
 with his exclusive right to possess the field. And in 
 his case an action of trespass is the proper action, 
 because, so long as his cattle have a right to eat the 
 grass, so long have he and his servants only the right 
 to possess the field. The law therefore vests the pos- 
 session of the mere surface in them ; but that circum- 
 stance is consistent with the owner of the land still 
 remaining in possession of the soil immediately under 
 the sui-face, and of everything below it. Chief Justice 
 Wilde in his judgment observes as follows : — " It 
 cannot be denied that the possession of the surface 
 may be in one person, and the possession of and the 
 right to the subsoil in another. Such rights may be 
 derived by grant, or may be inferred from a long and 
 uniform course of enjoyment, which will be supposed 
 to correspond with the interest created by some grant. 
 It is found, in tlie present case, that the burgesses had 
 a right, during a certain portion of the year, to take 
 the herbage by the mouths of their sheep and cattle : 
 and it is not found that they ever had any more 
 extensive right. In order to give them that limited 
 right, it was not necessary that the owner of the soil 
 should part with more than the mere right of pos-
 
 28 PRESCRIPTIVE RIGHTS. 
 
 session, diuing the time of the exercise of such right of 
 pasturage. If, then, it is competent to the owner of 
 the soil to grant such a limited interest, and to retain 
 all his rights in the subsoil, what are the proper 
 materials whence we are to infer what the grant was 
 but the course of enjoyment? Here, all that the 
 biu'gesses and freemen were shown to have enjoyed 
 was, the pasturage from the 6th of July to the 14th of 
 February, and there was nothing in the case to lead to 
 the conclusion that the owner of the soil ever parted 
 with more than was necessary to the exercise of that 
 limited right. There is no doubt that different strata 
 of the soil may be the subjects of separate and distinct 
 rights. A difficulty might have arisen as to the depth 
 to which the right of the bui'gesses extended ; but that 
 is excluded by the finding of the jury, which may be 
 assumed to mean that the holes made in the close were 
 dug to such a depth as to interfere with the sub- 
 soil, which the owners of the fee had not parted 
 with. What then is there to prevent the latter from 
 maintaining an action for that trespass ? In the case 
 of mines no question could arise. If the owner of the 
 fee retains the right to the mines and minerals, and 
 has also the possession, he may maintain an action for 
 any invasion of his rights. Here the plaintiffs have 
 the fee ; and they retain the possession of the subsoil. 
 They never granted anything more than the herbage, 
 leaving all their other rights just as complete and full 
 as if they had granted nothing. It therefore seems to 
 me that the learned judge was right in saying that the 
 exclusive possession of the siu'face by the burgesses was 
 consistent with the right and possession of the subsoil 
 in the plaintiffs, and that taking the finding of the 
 jury to mean that the burgesses had the exclusive 
 possession of the surface at the time the alleged tres- 
 passes were committed, and that the exclusive pos- 
 session of the subsoil was then in the plaintiffs, the
 
 PRESCRIPTION IN A QUE ESTATE. 29 
 
 verdict was properly entered for the plaintiffs for the 
 trespass done to tlie subsoil." 
 
 There was another action brought at the same time 
 by the same plaintiffs against one Mousley. And the Cox v. 
 evidence against him was that he rode on horseback to "'"'^'Z- 
 the races, and that was the only actual trespass which 
 he committed in the field. The Court held that this 
 was not an interference with the soil of the plaintiffs, 
 Messrs. Cox, but was merely an interference Tvith the 
 right of the burgesses to the exclusive possession, for 
 tlie purpose of the exercise of their right of several 
 pasture ; and, as it was found that the right of posses- 
 sion and the actual possession of the mere sm-face were 
 both out of the plaintiffs at the time of the committing 
 of the alleged trespass by the defendant Mousley, which 
 consisted merely of riding over the close, it was held 
 that the verdict in this case was properly entered for 
 the defendant. The jury in this case found that the 
 burgesses and freemen had the exclusive right of pos- 
 session from the 6th July to the 14th of February in 
 every year. And one of the learned judges, Mr. Jus- 
 tice Yaughan Williams, remarked that he thought the 
 finding of the jury must be taken to be equivalent to 
 a finding in the biu^gesses of a right of prima vedura 
 or prima tonsnra ; and with respect to the case of Cox 
 V. Monsley, it was unnecessary to say what would have 
 been the result if, instead of finding a right to prima 
 irsfiira or prima ionsnra in the corporation of Derby, 
 the jury had found merely an exclusive right of pas- 
 tm-age. The other judges, however, do not seem to 
 have taken this distinction. The right of prima tonsnra 
 clearly belonged to Messrs. Cox, for it was expressly 
 found that they had " been in the habit of taking the 
 forecrop and of having exclusive possession of the 
 Siddals from the 14th of February to the 6th of July 
 in each year." The learned judge no doubt referred to
 
 30 
 
 PRESCRIPTIVE RIGHTS. 
 
 tlie fact that the burgesses and freemen were found to 
 have had the exclusive possession during the remainder 
 of the year. And the ground of the learned judge's 
 doubt probably was, that as the owner of the sole right 
 of pasture could only take so much grass as the mouths 
 of his cattle could consume within a limited time, the 
 0"\^Tier of the soil had such an interest remaining in the 
 grass as might warrant him in bringing an action of 
 trespass for treading it down. I apprehend, however, 
 that the owner of an exclusive right of pasturage would 
 be entitled to bring an action of trespass with respect 
 to the possession of the surface during the time limited 
 for the exercise of his exclusive right, and that the 
 owner of the soil could not bring such an action, except 
 in respect of the soil, or of the trees or bushes, in which 
 the owner of an exclusive right of pastiu-age has no 
 interest. 
 
 Rights of 
 several herb- 
 age and pas- 
 ture, though 
 teuemeuts, 
 are not cor- 
 poreal. 
 
 There are some cases (/) in which it has been held 
 that rights of several herbage and pasture are " tene- 
 ments " within one of the old poor law acts. And these 
 decisions have been sometimes cited to prove that these 
 rights are corporeal hereditaments. But this is not so. 
 A right of common, which is clearly incorporeal, is 
 included by Lord Coke within the term " tene- 
 ment "(/i-). And incorporeal hereditaments were long 
 ago held to be " tenements " within the act in ques- 
 tion (/). 
 
 (0 Hex V. SioJce Inhab., 2 T. 
 Rep. 451 ; liex v. Piddletretithidc 
 Inhnb., 3 T. Rep. 772; Rex v. Tol- 
 puddk Inhab., 4 T. Rep. 671. 
 
 (/v) Co. Litt. 6 a. 
 {I) Rex V. HoU'mgton Inhab., 3 
 East, 113, 114.
 
 ( 31 ) 
 
 LECTUEE III. 
 
 I NOW proceed to consider the important subject of Common of 
 common of pasture. A right of common of pasture 
 may be either appendant, appurtenant, or in gross. 
 And first, of common appendant. Common appendant Common ajo- 
 is said to be of common right, and it is defined to be 
 the right, which every freehold tenant of a manor pos- 
 sesses, to depasture his commonable cattle, levant and 
 eouchant on his freehold tenement anciently arable, in 
 the wastes of the manor. Commonable cattle are either Commonable 
 beasts of the plough, such as horses and oxen, or animals 
 which manure the land, as cows or sheep. Swine, goats, 
 donkeys, and geese are none of them commonable 
 animals ; although by long usage a prescriptive right 
 to put such animals on a common may, no doubt, be 
 maintained. If a man claims common of pasture for Evidence of 
 all commonable cattle, and the evidence shows that he ^^^3°^"^^^ • 
 has turned on all the commonable cattle that he has, 
 but that he has never kept any sheep, this has been 
 held evidence to go to the jmy of a right for all com- 
 monable cattle, including sheep {a). 
 
 The commonable beasts, which the tenant has a right 
 to put upon the common are said to be levant and Levant and 
 eouchant on his land. Levant and eouchant means '^o^^*^^^''^^*- 
 rising up and lying down on the land ; that is, in fact, 
 being upon the land by night and by day ; and it 
 denotes the number of animals which the land, to which 
 the right of common belongs, can maintain by its winter 
 eatage or produce, — that is, during the season in which, 
 the grass not growing, the right of common is of no 
 
 {a) llanifold V. Pennington, 4 Barn. & Cress. IGl.
 
 bert 
 
 32 PRESCRIPTIVE RIGHTS. 
 
 benefit to tlie cattle. "With regard to levancy and 
 coucliancy, it is lield tliat tlie cattle need not necessarily 
 be the property of the tenant or occupier of the land 
 who puts them on. He may borrow the cattle of a 
 stranger, if he pleases. Common appendant was no 
 
 Ai-able laud, doubt Originally enjoyed in respect only of arable land ; 
 for, in former days, the tenant lived on the produce of 
 his farm ; and, as a rule, a portion of every tenant's 
 land was arable land. But although the land has been 
 converted into pastm'e or wood, or even become waste, 
 still the right of common appendant, once belonging to 
 it, may continue to exist. And even the conversion of 
 the land into garden and orchard will not destroy the 
 right of common, if it is continued to be exercised in 
 respect of the premises. This was decided in the case 
 
 Carrx.Lam- of Ca)')' V. Lftmhert [h). The action was an action of 
 trespass for breaking and entering the plaintiff's land, 
 and pulling up the plaintiff's posts*and rails thereon. 
 The defendants pleaded a right of common of pasture 
 over the land, in which the alleged trespass was com- 
 ' mitted, for all cattle levant and couchant upon the 
 premises of one of the defendants. And on the trial 
 of the case the verdict was entered for the plaintiff, 
 leave being reserved to the defendants to move to 
 enter the verdict for them, if the Court should be of 
 opinion, on the facts appearing in e"\ddence at the 
 trial, that there was evidence to support the right of 
 common set up in the pleas. The facts as proved 
 were that, at the time of the alleged trespass, John 
 Woodall, one of the defendants, was possessed of a 
 toftstead, consisting of a cottage and stable, with a 
 garden and orchard, of the extent of about two acres. 
 Evidence was given that, about fifty years before the 
 commencement of the action, 'this had been planted with 
 fruit trees, but that before that time it was swarth, and 
 had been depastured with cattle. No direct evidence 
 
 [h) 3 Hurlst. & Colt. 499, affirmed L R., 1 Ex. 1G8.
 
 COMMON OF PASTURE. 33 
 
 was given as to the number of cattle which it had then 
 supported, or was capable of supporting ; and no point 
 was raised at the trial on either side as to the necessity 
 of proof on this subject. After a great deal of evidence 
 had been given, the learned judge suggested that the 
 fact seemed clear that the owners of the toftstead had, 
 as of right, turned the cattle, housed on the toftstead, 
 but not deriving their sustenance therefrom, on the locus 
 in quo for more than thirty years, and that the only 
 question was one of law, viz., whether such a right of 
 common was legal, or, in other words, if such cattle 
 were levant and couchant. Both sides assented to this 
 suggestion ; and no other question was requii'ed to be, 
 or was in fact, left to the jury ; and thereupon the 
 learned judge directed a verdict to be entered for the 
 plaintiff, and reserved leave to move to enter a verdict 
 for the defendants as above stated. A rule was after- 
 wards obtained accordingly, and made absolute in the 
 Court of Exchequer ; and from this the plaintiff ap- 
 pealed. The Court of Exchequer Chamber however 
 affirmed the judgment of the Court below. The judg- 
 ment was delivered by Mr. Justice Willes. His judg- 
 ment was as follows : — " In this case, which was argued 
 before us yesterday, and in which we postponed our 
 judgment, we are of opinion that the judgment of the 
 Court of Exchequer is right and ought to be affirmed. 
 The main point of my brother Hayes's argument was 
 this : he insisted that the character of the dominant 
 tenement had been so altered from its character of 
 pasture, by means of a building being placed upon it, 
 and the rest turned into orchard ground, that thirty 
 years' user of common by cattle housed upon, but not 
 fed off it, was not evidence of any right which could in 
 point of law exist. His argument had considerable 
 force with reference to a total change of character ; but 
 much less force can be allowed to it with reference to 
 the facts of the present case. If he could on the facts 
 
 W.P. D
 
 84 rREScmrTivE kigiits. 
 
 have establislied tlie conclusion, that the character of the 
 dominant tenement was so altered that it could not ho 
 applied to the purpose of producing fruits, on wliich to 
 keep cattle, — if, for instance, a town of considerable extent 
 had been built upon the land and its neighbourhood, or 
 if it were turned into a reservoir, as was suggested in 
 the argument, it might be a question whether the right 
 of common were not extinguished or suspended. We 
 do not express any opinion on that question because, on 
 the facts stated, it seems that the toftstead, which was 
 the dominant tenement, consisted of a cottage and a 
 stable, with a garden and orchard of two acres. It had 
 therefore land in a state in v/hicli it might have been 
 laid down for pasture, or for meadow, or cultivated so 
 as to produce artificial plants and roots for the support 
 of cattle. This is, therefore, not the case of a dominant 
 tenement so changed in character as that cattle might 
 not be fed off its produce. If, then, my brother Hayes 
 had succeeded in satisfying us, that the expression of 
 levancy and couchancy is not a mere measure of the 
 capacity of the land to keep cattle out of artificial or 
 natural produce, grown within its limits, but that it is 
 further necessary to show that it could, in its actual 
 state, produce such food, he would stiU not have suc- 
 ceeded in showing facts negativing the capacity of the 
 land to do this ; for the evidence is quite consistent with 
 the following state of facts — land in a state of culti- 
 vation suitable for the support of cattle, afterwards in 
 part built upon, and the rest cultivated, not with a view 
 to the support of cattle, but in a state in which it 
 might easily be tm^ned to that pm'pose. There is no 
 authority, either in the class of cases relating to the 
 abandonment or loss, or to the suspension of rights, by 
 the destruction, absolute or temporary, of the necessary 
 measure of enjoyment, which would justify us in hold- 
 ing that a right, once created and existing, was, under 
 these circumstances, destroyed by the act of tlie pro-
 
 COMMON OF TASTURE. 30 
 
 priotor. The acts of use, wliich have been proved, 
 ought to be referred to a legal origin, if they are con- 
 sistent with it, rather than treated as a series of tres- 
 passes ; and their inconsistency with legal right is not 
 to be assumed, unless they could not be attached to a 
 legal origin, or the right to which they were attached 
 has been since extinguished or suspended. Our judg- 
 ment proceeds on this proposition, that facts appear 
 which show their ref erribility to a legal origin ; and that 
 it has not been shown that the right was suspended or 
 extinguished ; and whoever has heard cases of this 
 nature tried will think that the direction usually given 
 on their trial is in accordance with our present decision. 
 That direction refers to levancy and couchancy rather 
 as the measure of capacity of the land, than as a condi- 
 tion to be actually and literally complied with, by the 
 cattle lying down and getting up, or by their being fed 
 off the land. The judgment of the Court of Exchecjuer 
 is therefore affirmed." 
 
 It appears, therefore, that levancy and couchancy is 
 rather the measure of the capacity of the land, than a 
 condition to be actually and literally comj^lied with, by 
 the actual lying down and getting up of the cattle, or 
 by their being fed off the land. There can, however, 
 be no right of common in respect of a house, which has 
 no homestead connected with it, in which cattle may be 
 housed. And when a right of common is claimed in 
 respect of a messuage, it is presumed that that messuage Messuag-e. 
 has annexed to it some outbuilding in which the cattle 
 may be housed; otherwise there can be no right of 
 common in respect of the messuage. And I apprehend Land built 
 that if land be built over in such a way, as that no °^®^' 
 cattle can possibly be kept there, any right of common 
 of pasture which formerly belonged to the laud, must 
 be considered as having been extinguished. 
 
 D 2
 
 36 
 
 rHESCRIPTIVE RIGHTS. 
 
 Common ap- 
 pendant is of 
 common 
 right. 
 
 Earl Bnn- 
 rnven v. 
 Llewellyn. 
 
 Explained by 
 Sir R. Pal- 
 mer. 
 
 I oloserved that common appendant is of common 
 right. There is, however, a case decided by the Court 
 of Exchequer Chamber, in which this view was denied. 
 I allude to the case of Earl Bunraven v. Lleu-cllyn {c). 
 I have, in Appendix (C.) to my Principles of the Law of 
 Eeal Property {d), stated the reasons which induce me 
 respectfully to differ from the view of the Court in that 
 case. The decision in the case itself is thus explained 
 by Sir Eoundell Palmer, now Lord Selborne, in his 
 argument in the case of Warrick v. Qucenh College, 
 Oxford {e) . He remarks that that case was not the case 
 of a bill of peace, nor was the question there between 
 the lord of a manor and his tenants ; but it was between 
 the lord and a stranger, the lord trying to establish his 
 right by means of the declaration of parties in the same 
 interest as himself ; and all that was decided was, that 
 the matter in dispute was not such a matter of public 
 reputation as to allow such declarations to be admitted 
 in evidence. Tlie case was this. The plaintiff. Lord 
 Dunraven, brought an action against the defendant for 
 breaking and entering the plaintiff's close, claiming the 
 close in question as part of the wastes of the manor of 
 Ogmore, of which the plaintiff was lord. The plaintiff 
 offered no evidence of any exercise of rights by the lord, 
 or any of the tenants of the manor, over the close within 
 the period of living memory ; but he tendered evidence 
 of what had been said by certain deceased tenants of the 
 manor, who were all acquainted with the common and 
 waste and its neighbourhood, and who had exercised 
 and enjoj^ed rights of common over the waste. These 
 tenants had declared that the close in question was part 
 of the common and waste of the manor. This evidence 
 was rejected, and the Com't held that the rejection was 
 right. They agreed that the want of proof of actual 
 
 ((■) 15 Q. B. 791. {t) L. R., 10 Eq. 10;'), 119. 
 
 \(l) Page 489, I'ith cd.
 
 COMMON OF PASTURE. 37 
 
 user affected only the value of the evidence ; but the 
 decision was that the evidence under the circumstances 
 was inadmissible. In support of this opinion, however, 
 the Court seems to have thought it necessary to deny, 
 or at any rate to explain away, the doctrine of the 
 books, that every tenant of a manor has, of common 
 right, a right of common appendant in the lord's wastes. 
 I ventui'e to think that it was unnecessary to the con- 
 clusion at which the Court arrived to deny this doctrine. 
 
 "VVe now come to consider the question of the histo- Origin of 
 rical origin of the right of common appendant ; and the pe^tlaut.'^^" 
 opinions which have been long entertained on this 
 subject, founded as they are upon the authority of Lord 
 Coke, have been in modern times much shaken by the 
 investigations of modern historians, particularly by 
 Mr. Kemble, Sir Henry Maine and other writers. The 
 explanation of the matter given by Lord Coke is to be 
 found in Tijn'inrjiianv's case (/). Lord Coke says, "The TijryUujhaiu's 
 beginning of common appendant by the ancient law was ^^'*''* 
 in such manner, when a lord enfeoffed another of arable 
 land to hold of him in socage, that is, jj^r servicium 
 socce, as every such tenure at the beginning (as Littleton 
 saith) was that the feoffee ad nuumtenenduDi servicium 
 socw, should have common in the lord's wastes for his 
 necessary cattle, which ploughed and manured his land, 
 and that for two reasons — first because it was, as it was 
 then held, tacite implied in the feoffment ; for the feoffee 
 could not plough and manure his land without cattle, 
 and they could not be kept without pasture ; ^jcr conse- 
 qneiis the feoffee should have, as a thing necessary and 
 incident, common in the lord's wastes and land; and 
 that appears by the ancient books in the time of 
 Edward the First, and by the rehearsal of the statute of 
 Merton, Chapter IV. The second reason was for the 
 maintenance and advancement of tillage, which is much 
 
 (/) 4 Eep. 38.
 
 rRESCRirTIVE RIGHTS. 
 
 respected and favoui'ed in law ; so that such common 
 appendant is of common right and commences by 
 operation of law, and in favom* of tillage ; and therefore 
 it is not necessary to prescribe therein, as it is held in 
 4th of Henry VI. and 22nd of Henry YI., as it would 
 be if it was against common right; but it is only 
 appendant to ancient land arable, hide and gain, and 
 only for cattle, viz., horses and oxen to plough his land, 
 and cows and sheep to manure his land, and for the 
 bettering and advancement of tillage." 
 
 This explanation refers common appendant to the 
 original grants by lords of manors to their tenants ; 
 and what is now denied is that it is liistorically true. I 
 apprehend that in some cases it certainly is historically 
 true that such grants have been made, at the time when 
 the lord of the manor enfeoffed another of lands to hold 
 of himself. An instance of such a grant is to be found 
 in Madox's Formulare Anglicanum {g) . I have noticed 
 it in the Appendix (C.) to' my Principles of the Law of 
 Eeal Property {h). And it is referred to by Lord 
 Hatherley in his judgment in the case of Warrick v. 
 Quecn^s College, Oxford (i). His lordship observed (/.•) as 
 follows : — " The argument which was pressed upon me 
 very much by Mr. Manisty, fortified by the case of 
 JEarl Dunraven v. Llen-elign, was that a number of free- 
 holders could not join together as plaintiif and assert a 
 common right, for they had no such right at all. The 
 persons who claim by a custom prevailing over the 
 whole district, all come under one miiform custom ; but 
 persons claiming by prescription necessarily claim by 
 grant ; and how can we tell what would appear in each 
 grant ? Each grant may have a separate right connected 
 with it ; nor could hearsay evidence be admitted, on the 
 very ground that this was not a common right, but a 
 
 [g) No. 303, p. 181. See iiI«o (i) L. E., G Cli. 725, 726. 
 
 cintc, p. 8. iJc) Pago 725. 
 
 (A) Page 497, 12th cd.
 
 COMMON OF PASTURE. 39 
 
 case of each single person claiming by prescription. I 
 think there is very considerable fallacy in those argu- 
 ments." And then, after referring to the case of Powell 
 V. Earl Powis (/), which was before the Chief Baron 
 Alexander, his Lordship goes on, " What is there to 
 prevent these persons who claim by prescription from 
 having had a grant common to all, with perhaps dif- 
 ferent privileges contained in their respective grants ? 
 It is curious enough that in a valuable note on the case 
 of Earl of Diuwaven v. LIca-eUij)i, made by Mr. J. "Wil- 
 liams, a grant in Wales is mentioned by which a person 
 granted land to certain tenants, with all the uses, 
 privileges and advantages which had been granted to 
 other tenants. This is an instance of what may be 
 possible and legal." The land granted does not appear 
 to have been in Wales, but that is immaterial. 
 
 But that, in a great number of cases, the origin of 
 common appendant was not manorial, is I think equally 
 true. I believe that, in many, if not in most, cases, the 
 origin of common appendant is to be traced to the vill, Vills. 
 town or township, which is aptly styled by Canon 
 Stubbs in his Constitutional History of England {m) as 
 the unit of the constitutional machinery, the simplest " 
 form of social organization. In the valuable Lectures 
 given by Sir Henry Maine on Village Communities Sir H. Maine 
 you will see this subject discussed at large. The origin Com^iumties 
 of common appendant is there traced to the original 
 unit of a village community, and to the system of 
 village communities which has prevailed, not only in 
 England, but in Prussia and Russia, and, as Su' Henry 
 Maine has shown, also in India, among nations of the 
 Aryan stock, in such a manner as strongly to confirm the 
 identity of race abeady proved by similarity of language. 
 
 Now there are two things which strongly support 
 
 (/) 1 You. & Jerv. 159. {iii) Vul. 1, p. 82.
 
 40 rilESCRlPTIVE RIGHTS. 
 
 this view, viz. the importance which has always been 
 attached by the Law of England to the vill or township, 
 and also the system of cultivation of common fields, as 
 disting-uished from waste or common pastm-e land, which 
 so extensively prevailed in England until the numerous 
 Enclosure Acts of the last and present centmy, in so 
 Importauce of many places, swej^t it away. And first, with regard to 
 ^ ^' a vill or township. Although the Ecclesiastical division 
 
 into parishes is now, as we all know, well established, 
 still the importance of the vill or township is seen in 
 this: — If a man is described, say as John Freeman of 
 Fairfield, this description in law still implies that John 
 Freeman lives in the vill or township of Fairfield; and 
 if it should happen that the vill of Fairfield and the 
 parish of Fairfield are not co-extensive, then the word 
 Fau'field is in law applied to the vill of Fairfield, and 
 not to the parish of Fairfield; although by intendment 
 of law, every parish is a vill, unless it be shown to the 
 Tlic Statute contrary. There is in an old statute called the Statute 
 of Addition.". ^^ Additions («), upon which Lord Coke comments in 
 his second Institute (o). This statute shows the prefer- 
 ence which the law gives to vills or towns over parishes. 
 It ordains that, in personal actions, additions shall be 
 made to the name of the defendants of their estate or 
 degree or mystery, and of the towns or hamlets, or places 
 and counties, of the w^hich they were or be, or in which 
 they be or were conversant. On this Lord Coke 
 remarks {p), that the addition of the parish, if there be 
 two or more towns within it, is not good; but, if there 
 be one town, the addition of the parish is good within 
 the statute, and it shall not be intended, if it be not 
 pleaded, that there be more towns than one in the 
 parish. 
 
 The law on this subject is curiously illustrated by 
 
 («) Stat. 1 lieu. V. c. o. {p) Page GG9. 
 
 (o) Page 665.
 
 COMMON OF TASTURE. 41 
 
 a case decided by Lord Eldon iu the year 18 ID, viz. 
 Gibson v. Clarke (q). In that case there was a parish or Gil/son v. 
 chapehy of Belford iu the county of Northumberland, ^^'"'^'''• 
 which contained within it the vill or town of Belford, 
 together with several other hamlets, villages or town- 
 ships. A common recovery (r) had been suffered of 
 one-third of the tithes in the parish of Belford ; but the 
 deed, which made the tenant to the pra3cipe, for the 
 purpose of suffering the recovery, conveyed only one- 
 third of the tithes of the village of Belford ; and Lord 
 Eldon held that, if there be a tenant of the prtecipe of 
 a third part of the tithes of the vill, and the recovery 
 was suffered of a third of the tithes of the parish, the 
 tithes of the lands that were in both the vill and parish 
 would pass, but those in the parish and not in the vill 
 would not pass. This is in accordance with an old 
 decision of Stoi'k v. Fox [s). In this case it appeared sioi-k v. Fox. 
 that there were two vills, viz. Walton and Street, both 
 in the parish of (Street. A fine was levied of lands in 
 Street; and the question was, whetlier the lands in the 
 vill of "Walton, and which were in the parish of Street, 
 passed by that fine. And it was adjudged they could 
 not pass. Street being a distinct vill by itself, and 
 Walton being a distinct vill by itself. Although Street 
 the parish comprehends both, yet, in the fine, the lands 
 in Walton shall not be said to be comprised, unless 
 Walton had been a hamlet of Street, and that the fine 
 had been levied of lands in the parish of Street, and 
 then all had well passed. 
 
 It is laid down by Lord Coke (/) that every town or A vill has or 
 vill either has, or in time past had, a church and cele- ■'^'"^ ^ church, 
 bration of divine service, sacraments and burials; and 
 
 {q) 1 Jac. & W. 159. (,s) Cro. Jac. 120. 
 
 {>j See Lectures on the Seisin (t) Co. Litt. 115 b. 
 
 of the Freehold, pp. 157 ct seq.
 
 42 rKESCRlPTlYE RIGHTS. 
 
 he states that tliere are iu England and "Wales 8,803 
 towns or vills, or tliereabouts. And Sir Henry Spelman 
 has been to the pains of making an alphabetical list 
 of the vills in England in his work entitled Villare 
 Anglicum, or a Yiew of the Towns of England, collected 
 by the appointment of Su" Henry Spelman, Knight. 
 A constable. Every vill also had a constable, otherwise it was said to 
 be bnt a hamlet. 
 
 Blaekstone's The account which Blackstone gives of vills, towns, 
 ^^^™ ° or townships in his well-known Commentaries, places 
 the subject in a clear light. He says {ii) : " Tithings, 
 towns, or vills are of the same signification iu law; 
 and are said to have had, each of them, originally a 
 church and celebration of divine service, sacraments, 
 and burials : though that seems to be rather an eccle- 
 siastical than a civil distinction. The word town or vill 
 is indeed, by the alteration of times and language, now 
 become a generical term, comprehending under it the 
 several species of cities, boroughs, and common towns. 
 A city is a town incorporated, which is or hath been 
 the see of a bishop : and though the bishoprick be dis- 
 solved, as at Westminster, yet still it remaineth a city. 
 A borough is now understood to bo a town, either cor- 
 porate or not, that sendeth burgesses to parliament. 
 Other towns there are, to the number. Sir Edward Coke 
 says, of 8,803, which are neither cities nor boroughs, 
 some of which have the privileges of markets, and 
 others not, but both are equally towns in law. To 
 several of these towns there are small appendages be- 
 Hamlets. longing, called hamlets, which are taken notice of in 
 the Statute of Exeter, which makes frequent mention 
 of entire vills, demi-vills, and hamlets. Entire vills 
 Sir Henry Spelman conjectures to have consisted of ten 
 freemen or frank pledges, demi-vills of five, and hamlets 
 («) Vol. 1, p. 115.
 
 COMMON OF PASTURE. 43 
 
 of less tlian five. These little collections of houses are 
 sometimes under the same administration as the town 
 itself, sometimes governed by separate officers, in which 
 last case, they are to some purposes in law looked upon 
 as distinct townships. These towns, as was before 
 hinted, contained each originally but one parish and 
 one tithing, though many of them now, by the increase 
 of inhabitants, are divided into several parishes and 
 tithings ; and sometimes, where there is but one parish, 
 there are two or more vills or tithings."
 
 44 
 
 rRESCRlPTlYE RIGHTS. 
 
 LECTURE IV. 
 
 Common of 
 liiif^turc be- 
 loug-ing to 
 viUs. 
 
 Bracton's 
 form of writ 
 of novel dis- 
 
 Form of writ 
 of novel dis- 
 seisin in ritz- 
 Herbert's 
 Katura 
 Brcv'wm. 
 
 Bracton's 
 form of 'wi'it 
 of admeasure- 
 
 I NOW come to mention the numerous scattered indica- 
 tions ^Yhicll exist in our law books of common of pasture 
 having- in the first place belonged rather to vills or 
 townships than to manors. They occur in the old forms 
 of writs, in the old abridgments, in the year books, 
 in the old text writers, including Coke himself, in the 
 reports of decided cases, and in some acts of parlia- 
 ment. Some of these indications are very curious. If 
 we go back to the time of Bracton, who wrote in the 
 reign of Henry III. (r^), we shall find that the form of 
 writ, which he gives as proper to be used by a person 
 who has been disseised of his right of common, does not 
 refer to the land, in respect of which the right of com- 
 mon is claimed, as being held of any manor, nor does 
 it refer to the land, over which the right of common is 
 claimed, as waste land of any manor. On the contrary 
 the writ is as follows : " The King to the sheriff, greet- 
 ing : A. complains to us that B. unjustly and without 
 judgment disseised him of his common of pasture in 
 such a vill, which belongs to his free tenement in the 
 same vill, or in another vill." And the form of writ 
 for the same purpose given in the second volume of 
 Fitzherbert's Natura Bretiioii {h) is to the same effect: 
 " The King to the sheriff, &c. : A. hath complained 
 unto us that B. unjustly, &c. hath disseised him of 
 his common of pasture in N., Avhich belonged to his 
 freehold in tlic mine totci), or in anotJier toivn.''^ Again, 
 in describing the old writ of admeasurement of pas- 
 tm'c, which lay betwixt commoners who had common 
 
 {a) Bracton, lib. 1, c. 38, pur. G, p. 224. (i) Page 179.
 
 VILLS. 45 
 
 appendant to their freeholds, Bracton (r) gives this mcnt of pas- 
 form : " The King to the sheriff, greeting : Such a one ^"°" 
 complains to us that such a one unjustly surcharged his 
 common of pasture i)i such a vilJ, so that he has in it 
 more cattle and sheep than he ought to have, and than 
 belonged to him to have ; and therefore we command 
 you that justly and without delay you cause that pas- 
 ture to be measured, so that the said such a one shall 
 not have in it more cattle and sheep than he ought to 
 have, and than belonged to him according to his free 
 tenement, which he has in such a ri/l; and that the said 
 such a one have in that pasture so many cattle and 
 sheep as he ought to have, and as belonged to him to 
 have, and no more." The form given in Fitzherbert's 
 Natura Brevium (d) is to the same effect. 
 
 In a note to Fitzherbert's Natura Brevium (e) it is Explanation 
 stated that if the defendant has common appendant to Fiuhei-bert's 
 his freehold in three vills, it may be admeasured for the Natura 
 lands in one of the vills. This is a very vague state- 
 ment, but on reference to the authority cited the 
 meaning becomes clearer. It was the freehold that 
 was in the three vills, and the common was over a 
 large waste common to all the vills. Reference is 
 made to Fitzherbert's Abridgment, tit. Admeasure- 
 ment (/). It appears, on referring to the Abridg- 
 ment, that a writ of admeasurement was brought 
 against the prior of M., (wherever that place was,) and 
 it was stated that the moor, in which the admeasure- 
 ment was sought, was a great moor belonging to several 
 vills, and that the prior had lands in B., to which 
 common is appurtenant, and in two other vills named 
 in the writ. But the plaintiff by the writ only wished 
 to prevent the surcharge of the common of pasture by 
 
 ip) Book 4, c. 39, par. 2, p. [e) Vol. 1, p. 125. 
 
 229. (/) Page 15, par. 15. 
 
 {(J) Vol. 2, p. 125.
 
 V. Walton. 
 
 46 PRESCRIPTIVE RIGHTS. 
 
 the prior in respect of his lands in the same vill in 
 which the plaintiff had lands. And it appears to have 
 been holden that a writ of admeasurement would lie, 
 in that case, with respect to the defendant's lands in 
 the vill in which the plaintiff's lands were situate, 
 although the defendant had lands in two other vills 
 which commoned on the same waste. I mention this 
 lioUbigshcad caso becauso in the case of Holiingshead v. Walton (g) 
 the passage in the note of Fitzherbert's Notura Brevium 
 was cited as apropos to the case there, which was a 
 claim by the owner of lands in one township to 
 common over two distinct wastes, — one within the 
 township in which his lands lay, and the other in 
 another township. It seems to have been thought that 
 in the case in Fitzherbert the defendant's land was in 
 one vill only, and that he had common of pasture over 
 lands in three vills. And Mr. Justice Lawrence (A), 
 thinking that this was the meaning of the passage, 
 endeavoured to explain it, by suggesting that it might 
 be taken that the freeholder claimed common ap- 
 pendant in the three vills under the same lord, and it 
 might happen that other tenants of the lord had only 
 common in one of the vills, in which case, if he, who 
 had common in all three, turned on all his cattle in 
 one of them, it would prejudice those whose right of 
 common was confined to that one, and they might sue 
 out their writ of admeasurement to apportion the 
 number of his commonable cattle in that one vill. We 
 have seen however that the case put in the Abridg- 
 ment is not the case of a freeholder, in respect of one 
 tenement claiming common in three vills ; but the case 
 of a freeholder having lands in three vills, all of which 
 commoned in the same large moor. What was held 
 was, that the fact of his having lands in two other 
 vills, in respect of which he might put cattle on the 
 moor, did not prevent a writ of admeasurement lying 
 
 ((7) 7 East, 490, 492. {h) Page 492.
 
 VILLS. 4< 
 
 affcainst him at tlic suit of the owner of lands in one 
 of the vills, in which ho the defendant had Lands, in 
 respect of which he pnt on more cattle than he ought. 
 I do not know that this correction is very material, and 
 
 I cite the case rather with a view to showing how, in 
 
 ancient times, commons are spoken of, rather as be- Commons be- 
 longing to vills, than as belonging to the tenants of ^4uf^°° ° 
 manors. Undoubtedly the tenants of manors had 
 rights of common appendant ; but the modern theory 
 is, and it seems to me that ancient documents support 
 it, that in the first instance there generally existed a 
 vill or township ; and subsequently the lordship of that 
 vill or township, including the soil of the waste lands, 
 was granted to some person, who thereby became the 
 lord of the manor, the vill or township being, as it so 
 frequently is, co-extensive with the manor, and also 
 with the parish. 
 
 Commons belonging to townships are occasionally Mention in 
 mentioned in the Year Books. Thus, in the Year Book Jommons^of ""^ 
 
 II Henry YII. (/), it is laid down, that a vill may make '^'ill^. 
 bye-laws between themselves, as that every one, who 
 puts on his beast in such a common, shall pay ten 
 shillings. This is good, and shall bind them, but not 
 
 a stranger. So, in the Year Book 21 Henry YII (/.•), 
 it is laid down, that a vill may make a bye-law between 
 themselves, that he, who puts on his beast in the com- 
 mon before such a day, shall forfeit such a sum. This 
 is good, and shall bind them, but it cannot bind a 
 stranger. So the commons of a town are spoken of in Commons of 
 Sir Miles Corhefs case (/). It was there resolved that, cJ,°j^/,''^,,. 
 if the commons of the town of A. and of the town of 
 B. are adjoining, and that one ought to have common 
 with the other by reason of vicinage, and in the town 
 of A. there are 50 acres of common, and in the town 
 of B. there are 100 acres of common, in that case the 
 
 (1) Page 14a. (/.) Page 40b. (/) 7 Rep. 5b.
 
 48 
 
 PRESCRirXIVE RTOIITS. 
 
 Commons of 
 vills iu 
 Viner's 
 Abrido-nioiit. 
 
 Ciimmous of 
 towus iu 
 Comyns' 
 Dio-est. 
 
 Commons of 
 towns spukcn 
 of by Blaek- 
 stoue. 
 
 inhabitants of tlie town of A. cannot put more cattle 
 into their common of 50 acres than it will feed, without 
 any respect to the common within the town of B., ncc e 
 conrerso. Again, in Yiner's Abridgment {ni) several 
 instances are given of commons belonging to vills. 
 Thus it is said of common by reason of vicinage (y/), 
 that one cannot put his beasts into the land of another ; 
 for there those of the other vill may distrain them 
 damage feasant, or shall have action of trespass ; but 
 they shall put them in their own fields, and if they 
 stray into the fields of the other vill, they ought to 
 suffer them. Again (o), a great field lies between two 
 adjoining vills, and one that has land in the one vill 
 has common there with the tenants of the other vill. 
 The question was, if he be to make title to this common, 
 whether he shall make it as to common appendant, or 
 by reason of vicinage. And the Court held that this 
 was common by reason of vicinage. Lord Chief Baron 
 Comyns in his Digest {p) thus describes common by 
 reason of vicinage : " Common 7:)?^" crtusc de ricinage is 
 when two or more foirns have common in the fields 
 within their toicns, which are open to the fields of the 
 neighbouring fowjis, and the cattle, put to use their 
 common there, escape into the fields of the neighbour- 
 ing towns, and e contra. And therefore this common 
 is but an excuse for a trespass." Blackstone also, in 
 his Commentaries, speaks of common of towns in like 
 manner. In Yol. 2, Chap. 3 (y), he says: "Common 
 because of vicinage or neighbourhood is where the in- 
 habitants of tuv to/nisIu'j)s, 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 
 
 (««) Title Common (K), par. 9 to 
 
 14. 
 
 {») Tar. 10. 
 
 lo) Par. 12. 
 
 {p) Tit. Common (E). 
 
 (7) Pag-o 33.
 
 VILLS. 49 
 
 in strictness is a trespass in both, and to prevent a 
 mnltiplicitj of suits ; and therefore either toiois/iip may 
 enclose and bar out the other, though they have inter- 
 commoned time out of mind. Neither hath any person 
 of one tojcn a right to put his beasts originally into the 
 other's common : but if they escape, and stray thither of 
 themselves, the law winks at the trespass." Here com- 
 mons belonging to towns are spoken of as well known to 
 the law. So Lord Coke himself in his Commentary on Commons of 
 Littleton (r), states, that an iipkaid town may allege a spoken of by 
 custom to have a way to their church, or to make bye- ^^rd Coke, 
 laws for the reparation of the church, the well ordering 
 of the commons, and such like things. Here the (commons 
 are spoken of generally as the commons of the town ; 
 and the town, he says, may make bye-laws for the 
 ordering of the commons. Unless the commons be- 
 longed to the town, the town surely could not make 
 bye-laws with respect to such commons. 
 
 Claims of common in respect of vills or townships 
 sometimes occur in the different law reports. Thus in 
 the case of Ellard v. Hill (s) there is an instance of a mard v. Eiil, 
 claim of common for every yardland within a vill. A L'!!,'!!.!.^ ;„ 
 
 " ^ common in 
 
 yardland is a Saxon term, and comprises a number of respect of a 
 
 acres, which varies in almost every place. What the 
 
 exact origin of the term is I do not know. However 
 
 this case was an action of replevin of a cow, which had 
 
 been distrained; and issue was joined on a prescription 
 
 that every yardland within such a vill ought to have 
 
 common, in such a place, for twelve cows ; and for a 
 
 quarter yard for three cows, and for half a quarter, one 
 
 cow and a half. And after verdict, it was moved, in arrest 
 
 of judgment, that one cannot prescribe to have common 
 
 for half a cow ; but it was answered, and so resolved 
 
 by the Court, that this, being found by the Court, shall 
 
 be intended to be as follows — viz., half a year, or that 
 
 (r) Co. Litt. 110 b. («) Sidei-fin, 226. 
 
 W.P. E
 
 50 
 
 VRESCRIPTIVE IIIGIITS. 
 
 Pate V. 
 Broumloir, 
 common, of 
 Tills. 
 
 two shall join, when each one of them has half a cow. 
 Again there is in Keble's Eeports (/) a case of Pate v. 
 Broivniow as follows, " In ejectment for a marsh the 
 plaintiff claimed as parcel of the manor of Cressy Hall, 
 the defendant as parcel of the manor of Newbery in 
 Surflet in the coimty of Lincoln ; but it appeared to be 
 a marsh in common to two rills between them and their 
 tenants by prescription for their sheep, being salt." 
 
 Lord of a 
 ^-ill. 
 
 Mentioned in 
 the Year 
 Books. 
 
 Mentioned in 
 
 Viner's 
 
 Abridfi-mont. 
 
 Lord of the 
 town men- 
 tioned by 
 Fitzherbert. 
 
 In some of the old books the lord of a vill is spoken 
 of as a personage known to the law. Thus, in the Year 
 Book, 21 Hen. YII. 20, it is said : " If the tenants 
 abiding in a certain Till wish to establish for law that 
 every one of them who holds so many lands should 
 yearly pay to the church of the same vill a certain sum, 
 and for every default 20s. forfeitm-e to the lord of the 
 same vill, although this constitution has been used from 
 time immemorial, yet this custom is invalid, because on 
 account of the non-payment of the said sum to the 
 church the lord sustains no damage, because it follows 
 in reason that by it he had no gain." So it is laid 
 down in Yiner's Abridgment {u), that if there be a lord 
 of a vill, and another has a leet (.r), — that is, a Court 
 leet, — but no land beside the leet, and he claims, by 
 cause of the leet, to be lord of the waste of the said 
 vill by prescription, this is a void prescription. Again, 
 in the second volume of Fitzherbert's Natiira Brevium (i/), 
 it is said that none shall claim common by vicinage but 
 the lord who hath the possession of the town — meaning, 
 I apprehend, that it was the lord who was the im- 
 mediate lord of the town, which had become his manor, 
 who alone could claim common by vicinage ; but that 
 the superior lord, of whom he may have held his manor, 
 and who had therefore only an incorporeal seignory, 
 
 (/) Vol. 1, p. 87G. 
 
 («) Title Prescription, K. 3. 
 
 (x) See Lectures on the Seisin 
 of the Freehold, p. IG. 
 (//) Page 180.
 
 TILLS. 51 
 
 could not claim any common by vicinage. Here, again, 
 you have the lord in possession of the town mentioned, 
 the town being to all intents and purposes the same 
 thing as a vill. 
 
 I have very little doubt but that further research 
 would bring to light other instances of common of 
 pasture being spoken of as attached to vills or towns as 
 such. And those which I have been able to discover Early origin 
 appear to me to raise a very strong presumption that, append^nt^ 
 in most cases, the right of common of pastiu-e, ap- 
 pendant of common right to arable lands, was of very 
 early origin, and commenced in the times when the 
 different families or communities which composed the 
 vills or towns settled in their respective places of habi- 
 tation, cultivated the arable lands, divided the good 
 pasture amongst themselves, and turned their cattle on 
 the adjoining wastes. The waste in the first instance 
 would seem to have been unappropriated, belonging in 
 fact to nobody in particular. But in process of time, 
 as land became more valuable, each vill or township 
 appears to have been confined to the commons or waste 
 grounds within the boundaries of its own territory, 
 except in cases where the tenants of the land of the vill 
 may have had rights of common over any adjoining 
 park or forest. In fact, if the origin of rights of 
 common was, as is supposed, the placing by ancient 
 vills or communities of their cattle on the adjoining 
 waste lands, we shall probably find that, in places 
 which have been kept waste for the purpose of sporting, 
 rights of townships or communities to common on such Eights of 
 wastes would be found to exist. And such in truth is common'in'' 
 the case. There is an old statute of Henry VIII. in payks and 
 which common is spoken of as belonging to a vill or 
 township, viz., stat. 27 Hen. YIII. chap. G. The act Stat. 27 Hen. 
 is concerning the breed of horses, and it provides that speaks of ' 
 the owners of parks are to keep a certain quantity of common of 
 
 ■^ ^ a. ^ townships. 
 
 E 2
 
 52 
 
 PRESCmrTlVE RIGHTS. 
 
 Forest of 
 Bernewood. 
 
 mares, according to tlie size of the parks, each of them 
 of the height of 13 hands at the least — a curious enact- 
 ment, showing incidentally that in all probability at 
 that time, horses, as well as other cattle, were much 
 smaller than they are at present. And the 5th section 
 provides that the act shall not extend to charge the 
 lords, owner or owners of any park or parks, or grounds 
 inclosed, with the finding of any mares, the herbage of 
 which park is common to the tenants and inhabitants (:;) 
 of the toicnsltij) next adjoining to the same park ; thus 
 speaking of the tenants and inhabitants of a toicnship as 
 having a right of common within a park adjoining. I 
 have also been furnished with a note of an old case in 
 the Exchequer {a)^ in which, on the disafforesting of 
 the forest of Bernewood, in the county of Bucks, three 
 towns, namely. Brill, Boarstall and Oakley were held 
 entitled to rights of common of pasture throughout the 
 forest. 
 
 Rights of 
 common of 
 parishes in 
 Hainaiilt 
 
 Forest. 
 
 Again, we shall find rights of common exercised by 
 parishes, (which, as you will remember, are presumed 
 to be co-extensive with vills or townships, unless the 
 contrary is shown (/*),) over part of the wastes of the 
 Grreat Forest of Essex, one portion of which was called 
 by the name of Hainault Forest. The case In the 
 matter of the Hainautt Forest Act, 1858 {e), shows this 
 to have been the case. An Act of Parliament was 
 passed for disafforesting the forest of Hainault. The 
 forest of Hainault comprised certain open commonable 
 lands, called The King's Forest or King's Woods, in the 
 parishes of Barking and Dagenliam, in the county of 
 Essex, containing 2,842 acres, and another tract of 
 waste in other parishes. The rest of the forest con- 
 sisted of inclosed lands in the several parishes of 
 
 {z) Sec ante, p. 15. 
 («) Att.-Gen. v. Dijnham and 
 others, Exch. 7 Nov. 1G32, MS. 
 
 (h) Ante, p. 40. 
 
 (r) 9 C. B., N. S. G48.
 
 VILLS. 53 
 
 Barking, Dagenliam, Stapleford Abbotts, Lamboiirno 
 and Chigwell. The evidence as to the rights of com- 
 mon of the commoners in these five parishes consisted 
 of acts of user for more than sixty years previously 
 to and down to the time of disafforestatiou, and was to 
 this effect : — That a reeve was appointed for each of the 
 five parishes whose duty it was to mark the cattle of 
 the persons entitled to common in their respective 
 parishes ; that the marking usually took place near the 
 boundary of the King's Forest or King's Woods, and 
 within the parish to which the cattle so marked be- 
 longed ; that the cattle were generally turned out at 
 the spot where they were marked, and then went where 
 they pleased. The Commissioner by his Award found 
 that the rights of common which were exercisable in 
 respect of those parts or districts of the several parishes 
 above mentioned which lay within the boundaries of 
 the said forest, were exercised exclusively over the 
 commons or commonable land situate within such last- 
 mentioned parishes, including the King's Forest or 
 King's Woods ; and that the last-mentioned rights of 
 common or any of them were not limited to the com- 
 mons in the particular parish, district or place, in which 
 were situate the lands, in respect of which the said 
 rights are claimed, but that the said rights claimed for 
 each of the last-mentioned parishes, districts or places 
 extend indiscriminately and generally over all the com- 
 mons or commonable land in each and every of the 
 same parishes, districts or places, including the King''s 
 Forest or King's Woods. It was held upon a case 
 stated for the opinion of the Court, that the decision of 
 the Commissioner was warranted by the evidence, and 
 that the matter was within his jurisdiction. Here you 
 observe that each parish represented a distinct township 
 or community, had a reeve, who marked with a distinct 
 mark the cattle belonging to his own parish or town- 
 ship, and that those cattle so marked had a right of
 
 54 
 
 riiESCRirxiVE rights. 
 
 Eight of 
 commou of 
 pasture iu 
 Eppiug 
 Forest. 
 
 Commissioners 
 of Sewers V. 
 Glasse. 
 
 common over the whole of the district mentioned, 
 including such parts of the district as lay within the 
 boundaries of the other parishes. I take this to be an 
 instance of what was originally and commonly the 
 ancient right of commoning, preserved up to modem 
 times by reason of the royal right of chase having 
 prevented the wastes from being inclosed. The same 
 thing occurred in the recent Epping Forest case, which 
 related to the other and remaining ' part of the great 
 Eorest of Essex, or Waltham Forest ; j)art of which 
 was called Hainault Forest, and was inclosed by Act 
 of Parliament, and the remainder was called Epping 
 Forest. In the Epping Forest case, the Commissioners 
 of Sewers of the City of London were seised in fee of 
 lands within the forest, and they filed a bill on behalf 
 of themselves and the owners and occupiers of lands in 
 the forest against the lords of the several manors within 
 the forest, who were seised in fee of the waste grounds, 
 claiming to be entitled, in right of and as appurtenant 
 to their several lands and tenements, to common of 
 pasture for cattle levant and couchant on their re- 
 spective tenements over all the waste lands of the 
 forest. The case is reported as TJic Commissioners of 
 Seicers v. Glasse (d). Now the evidence in that case 
 was, in respect of the marking of the cattle, very much 
 the same as in the Hainault Forest case. It appeared 
 that the cattle, before being put upon the waste, were 
 marked by the reeve of the parish, in which the lands 
 were, in respect of which the cattle Avere put on ; and 
 that each parish had a distinct mark of its own. The 
 mark was called the forest mark ; and it was the duty 
 of the reeve of each parish to mark all the beasts that 
 were brought to him from any part of the parish to 
 which he belonged ; and the forest mark was then a 
 passport to the whole forest. Here, again, you have 
 common rights over wastes exercised by parishes, repre- 
 
 {d) L. R., 19 Eq. 134.
 
 A D O lia 
 
 ^FiVY 
 
 Chi^rreZZ. S: jlt^-x^.^ Jtu^any 
 
 ujp?!^ 
 
 N" 
 
 
 P^ R 
 
 JHrn^A.iti "^bjtJtmaxL- Jitipiexfrci Aibat l^t^ Kawrt, 
 
 JoraafiSi EPPIliC FOREST MARAS. 
 
 J
 
 VILLS. 
 
 Eenting vills or conmimiities, putting tlieir cattle <m 
 to any part of the forest or waste, amidst Trhieli the 
 community was situate. The contest in this case was, 
 whether the right of common was not a manorial rights 
 and as such confined to the wastes or commons within 
 the boundaries of each sereral manor. But it was held 
 that it was not a manorial right, but a f orestal right. 
 The fact of the separate marking by each separate 
 parish with a different mark does not very dearly 
 appear in the report of the case ; but it was distinctly 
 ia evidence iu the ease; and pictures c: _, f the 
 
 marks were given in evidence (e). Ijl 
 claini of the commoners was proved t 
 ancient documents, and entries at the old courts of the 
 forest ; but the rights proved remarkably corresponded 
 with the rights in the Hainault Forest case, which were 
 proved only by acts of user. 
 
 There is an old statute of the reign of Henry Forest maris 
 Ym. (/), intituled *-'An Act for the abuses of the ^^^^ 
 forests of Wales," iu which the marking by the foresters vm. 
 of stray cattle with the nmrk of their forest ^ and seizing 
 them as forfeited to their own use, are spoken of as 
 unlawful customs. And the following extract from a 
 treatise on Surveying by Fitzherbert, written in the 
 year 1539 (^r), shows how usual the right of vills to 
 
 (f) I am enablc'l by tHe kind- 
 ness of 3It. Hunter, one of iie 
 solicitors in the cause, to - r -:_: 
 the reader -with copies : .-.- 
 marks Tised bymost of the parislics . 
 See tlie plate annexed. It was 
 proTed in the canse that tilie m;. : 
 for Eoydon hamlet (the rest :: 
 the parish of Eoydon being out- 
 side the forest} was a G and a 
 crown, that the mark of Loagh- imder it. 
 
 ton parish was F and a crown, {/) Stat. 27 Hen. THI. c. 7. 
 
 that the mark of Lambonme {i) Fitzherbert on Sorreying", 
 
 parish was I and a crown. "With c. 1-5. 
 
 res'aiNi *■:• the r:.:!--- 
 5t.c»ck. a bar ci ir;:_ - 
 
 :f Xare- 
 
 ~lth three 
 
 sentatior; : 
 
 tinctive li.-.i .; ._. 
 
 -
 
 56 PRESCRIPTIVE RIGHTS. 
 
 Forest marks have common of pasture in open wastes tlien was ; and 
 and°Wete ^ow tlie cattle of each vill were usually branded with a 
 mentioned by distinct mark: — "And there me semeth the surveyor 
 may syt with the iustices of the forestes for one thing 
 specially, and that is this, that no townshyppe, nor 
 hamell [hamlet] entercomen within the forestes, chases, 
 wastes, hethes, moors, and such other great commens, 
 but all such that of ryghte ought to have comen within 
 the same. Wherefore it wolde be ordneyned that every 
 townshyppe and hamell, that ought to have any such 
 comen in any forestes, chases, wastes, moores, heythes, 
 and such other great comens, where duers townshypps 
 and hamels entercommon togyther, every township and 
 hamell ouglit to have a dyuers brennynge yron [burning 
 iron] ; and every beaste, horse, mare and colte, that is 
 put upon the comen, ought to be brenned in some part 
 of his body with the said yron, and then shall euery 
 beaste be knowen, of what townshyppe he is. And 
 that were a great redyness to the kepers, and also a 
 great sauegarde for stealynge of the cattle. And than 
 may the keepers, regarders, goysters, and other officers 
 of such forestes and chases, have perfytte knowledge 
 what townshyppe the cattel is of. And if any of these 
 sayd officers fynde any manner of cattel hauing no 
 such brennynge, they may attache them and seise them 
 as strays (//), and put them in sauegarde to the lordes 
 use, tyll they be yered [yeared] and dyed [dayed]. 
 And they ought to ask theym thre Sondayes in 
 thre or foure next paryshe churches, and also cry them 
 thre tymes in thre the next market townes. And if no 
 man com within the yere and the day, and to make 
 sufficient profe that the catell is his, than it is forefayt 
 to the lorde as a strey ; and in lyke mauer the swyne 
 and shape of every township and hamell, ought to be 
 l)ytched with the said brennynge yron, or such an other 
 lyke the same." 
 
 {h) Sec 2J0i>f, Lecture XX.
 
 ( 57 ) 
 
 LECTURE V. 
 
 In my last Lecture I mentioned several notices scattered 
 about in our law books of commons belonging to vills 
 or townships ; and I now proceed further with the 
 subject. I will endeavoui" to explain the modern doc- 
 trine of the origin of common appendant from village Village com- 
 communities, existing as societies, with arable land cul- 
 tivated in common, and also common rights of pasture 
 in the adjoining waste. I do not know that I can 
 express the views of modern writers on this subject 
 more concisely and accurately than in the words of 
 Canon Stubbs in his Constitutional History of Eng- Canon 
 land (rt). The system, which it appears has prevailed 
 much more universally than our ancient lawyers dreamt 
 of, is called the mark system, and it is thus explained 
 by Canon Stubbs : — " The laborious investigations of 
 recent scholars have successfully reconstituted the scheme 
 of land tenure, as it existed among the Germanic races, 
 by careful generalisations from charters, records of 
 usages, and the analogies of Scandinavian law and 
 practice, which at a later date reproduces, with very 
 little that is adventitious, the early conditions of self- 
 organising society. This scheme has been abeady men- 
 tioned more than once, under the name of the mark The mark 
 system. Its essential character depends on the tenure "■^^ ^^' 
 and cultivation of the land by the members of the 
 community in partnership. The general name of the 
 mark is given to the territory which is held by the 
 community, the absolute ownership of which resides in 
 the community itself, or in the tribe or nation of which 
 the community forms a part. The mark has been 
 («) Vol. 1, pp. 48—51, 2ud ed.
 
 58 
 
 rRESCIlirTlVE RIGHTS. 
 
 Apportion- 
 ment of land 
 under the 
 mark system. 
 
 formed by a primitive settlement of a family or kindred 
 in one of the great plains or forests of the ancient 
 world ; and it is accordingly, like any other clearing, 
 surrounded by a thick border of wood or waste, which 
 supplies the place or increases the strength of a more 
 effective natural boundary. In the centre of the clearing 
 the primitive callage is placed; each of the markmen 
 has there his homestead, his house, courtyard, and farm 
 buildings. This possession, the exponent as we may 
 call it of his character as a fully qualified freeman, 
 entitles him to a share in the land of the community. 
 He has a right to the enjoyment of the woods, the 
 pastures, the meadow, and the arable laud of the mark ; 
 but the right is of the nature of usufruct or possession 
 only, his only title to absolute ownership being merged 
 in the general title of the tribe, which he of course 
 shares. The woods and pastures being undivided, each 
 markman has the right of using them, and can tui'n into 
 them a number of swine and cattle : under primitive 
 conditions this share is one of absolute equality ; when 
 that has ceased to be the ride, it is regulated by strict 
 proportion. The use of the meadow land is also defi- 
 nitely apportioned. It lies open from hay harvest to 
 the following spring, and dming this time is treated as 
 a portion of the common pasture, out of the area of 
 which it is in fact annually selected. When the grass 
 begins to grow, the cattle are driven out, and the 
 meadow is fenced round and divided into as many equal 
 shares as there are mark-families in the village ; each 
 man has his own haytime, and houses his own crop ; 
 that done, the fences are thrown down, and the meadow 
 becomes again common pasture — another field in another 
 part of the mark being chosen for the next year. For 
 the arable land, the same regulative measures are taken, 
 although the task is somewhat more complex, for the 
 supply of arable cannot be supposed to have been inex- 
 haustible, nor would the markmen be likely to spend
 
 VILLAGE COMMUNITIES. 59 
 
 their streugth in bringing into tillage a larger area tlian 
 they could permanently keep in cultivation. Hence the 
 arable surface must be regarded as constant, subject to 
 the alternation of crops. In the infancy of agriculture 
 the alternation would be simply that of corn and fallow, 
 and for this two divisions or common fields would suffice. 
 But as tillage developed, as the land was fitter for winter 
 or spring sowing, or as the use of other seed besides 
 wheat was introduced, the community would have three, 
 four, five or even six such areas, on which the proper 
 rotation of crops and fallow might be observed. In 
 each of these areas the markman had his equal or pro- 
 portionate share ; and this share of the arable completed 
 his occupation or possession. This system of husbandry 
 prevailed at different times over the whole of Grermany, 
 and is in complete harmony with the idea of a nation- 
 ahty constituted on a basis of personal rather than 
 territorial relations. As the king is the king of the Personal con- 
 nation, not of the land, the laud is rather the sign or the^jolity in 
 voucher for the freedom of its possessor than the basis "^vhich tMs 
 of his rights. He possesses his land as being a full-free vails, 
 member of the community; henceforth the possession 
 of it is tlie attestation, type and embodiment of his free- 
 dom and political rights. For every such mark becomes The political 
 a political unit ; every free markman has his place in the ^i^^^^^rk"* 
 assembly of the mark, which regulates all the internal system, 
 business of the partnership and of the relations that 
 arise from it. The choice of the meadow, the rotation 
 of the crops, the allotment of the shares from year to 
 year are determined in this council; and without its 
 consent no man may settle in the territory, build himself 
 a house, or pui'chase the share of another. It is im- 
 necessary to suppose that there was a period when the 
 village marks administered justice among themselves ; The village 
 for within historical times they appear only as members ^^rk-moot 
 of larger communities : but even these communities 
 may have been originally constituted on the same prin-
 
 60 
 
 PRESCRirTlVE RIGHTS. 
 
 ciple, and have possessed common woods and pasture 
 groimds, in whicli the viUage marks have their definite 
 shares. But the initiatory stage of legal proceedings 
 may well have been gone through, complaints heard, 
 and presentments drawn up in the village council. On 
 such a hypothesis also it may have elected its own 
 annual president ; although, again, within historic times 
 such magistrate seems to have been imposed by the 
 king or governing council of the nation." 
 
 KcniLlc's 
 Saxons iu 
 England. 
 
 Condition of 
 
 German 
 
 tribes. 
 
 Corn grown 
 for consump- 
 tion. 
 
 Mr. John Mitchell Kemble in his Saxons in England 
 has a chapter on the mark {b), from which I propose to 
 read a few extracts, showing how the mark system was 
 used in this country by the Saxons. " However far," 
 he remarks (c), " we may pm^sue our researches into the 
 early records of our forefathers, we cannot discover a 
 period at which this organization was unknown. 
 Whatever may have been the original condition of the 
 German tribes, tradition and history alike represent 
 them to us as living partly by agricidture, partly by 
 the pasturing of cattle. They had long emerged from 
 the state of wandering herdsmen, hunters or fishers, 
 when they first attracted the notice and disputed or 
 repelled the power of Eome." Again («-/), "without 
 commerce, means of extended communication, or peace- 
 ful neighbours, the Grermans cannot have cultivated 
 their fields for the service of strangers ; they must have 
 been consumers, as they certainly were raisers of bread 
 corn ; early documents of the Anglo-Saxons prove that 
 considerable quantities of wheat were devoted to this 
 purpose. Even the serfs and domestic servants were 
 entitled to an allowance of bread, in addition to the 
 supply of flesh ; and the large quantities of ale and 
 beer which we find enumerated among the dues payable 
 from the land, or in gift to religious establishments, 
 presume a very copious supply of cereals for the purpose 
 
 (i) Vol. 1, chap. 2. {c) rage 37. {d) Page 38.
 
 VILLAGE COMMUNITIES. 61 
 
 of malting. But it is also certain tliat our forefathers Cattle used 
 depended very materially for subsistence upon the i^I^^q] ^^^' 
 herds of oxen, sheep, and especially swine, which they 
 could feed uj)on the unenclosed meadows, or in the wealds 
 of oak and beech, which covered a large proportion of 
 the land. From the moment, in short, when we first 
 learn anything of their domestic condition, all the 
 German tribes appear to be settled upon arable land, 
 surrounded with forest pastures, and having some kind 
 of property in both." 
 
 Again (e) : " The word marJi has a legal as well as Meaning of 
 a territorial meaning ; it is not only a space of land, ^ ^""'' ' 
 such as has been described, but a member of a state 
 also ; in which last sense it represents those who dwell 
 upon the land, in relation to their privileges and 
 rights, both as respects themselves and others. But 
 the word, as applied even to the territory, has a twofold 
 meaning : it is properly speaking employed to denote 
 not only the whole district occupied by one small 
 community ; but more especially those forests and Word maric 
 wastes by which the arable is enclosed, and which ^^eg ]*° 
 separate the possessions of one tribe from those of which arable 
 another. The mark or boundary pasture land, and the enclosed. 
 cultivated space which it surrounds, and which is 
 portioned out to the several members of the community, 
 are inseparable ; however different the nature of the 
 property which can be had in them, they are in fact 
 one whole ; taken together they make up the whole 
 territorial possession of the original cogiiafio, kin or 
 tribe. The ploughed lands and meadows are guarded 
 by the mark ; and the cultivator ekes out a subsistence, 
 which could hardly be wrung from the small plot he 
 calls his own, by the flesh and other produce of beasts, 
 which his sons, his dependents or his serfs mast for liim 
 in the outlying forests." 
 
 {(') Page 42.
 
 62 
 
 PRESCRIPTIVE RIGHTS. 
 
 Tho mark is 
 also a com- 
 mvinity. 
 
 Coiii-t of the 
 lum'kmcu. 
 
 Again (/) : " In the second and more important sense 
 of the word, the mark is a community of families or 
 households settled on such j)lots of land and forest as 
 have been described. This is the original basis upon 
 •which all Teutonic society rests, and must be assumed 
 to have been at first amply competent to all the demands 
 of society in a simple and early stage of development ; 
 for example to have been an union for the purpose of 
 administering justice, or supplying a mutual guarantee 
 of peace, security and freedom for the inhabitants of the 
 district. In this organization the use of the land, the 
 woods and the waters, was made dependent upon the 
 general will of the settlers, and could only be enjoyed 
 under general regulations made by all for the benefit of 
 all. The mark was a voluntary association of free men, 
 who laid down for themselves, and strictly maintained, 
 a system of cultivation by which the produce of the 
 land on which they settled might be fairly and equally 
 secured for their service and support ; and from partici- 
 pation in which they jealously excluded all who were 
 not born or adopted into the association. Circumstances 
 dependent upon the peculiar local conformation of the 
 district, or even on the relations of the original parties 
 to the contract, may have caused a great variety in the 
 customs of different marks ; and these appear occasion- 
 ally anomalous, when we meet with them still subsisting 
 in a different order of social existence; but with the 
 custom of one mark, another had nothing to do ; and 
 the mark-men within their own limit were independent, 
 sufficient to their own support and defence, and seised 
 of full power and authority to regulate their own affaii's 
 as seemed most conducive to their own advantage. 
 The Court of the markmen, as it may be justly called, 
 must have had supreme jurisdiction at first, over all the 
 causes which could in any way affect the interests of 
 the whole body or the individuals composing it : and 
 
 (/) Page 53. 
 
 I
 
 VILLAGE COMISIUXITIES. 63 
 
 suit and service to such Court was not less the duty 
 than the high privilege of the free settlers." 
 
 There is an interesting article in the Archi3eologia ( g) , Milman's 
 by Henry Salusbury Milman, Esq., on the Political Geography 
 Greography of Wales, which throws some light upon this of Wales. 
 subject. He remarks (A) that the political boundary of Original 
 Wales originally coincided with its physical or geo- -^^Ics'^^^ 
 logical boundary as laid down by modern science : 
 namely, the line of the rivers Severn and Dee. But 
 this was soon over-stepped by the Anglo-Saxon in- 
 vaders, who gradually forced the Welch further to the 
 westward, and established a new boundary — at first in- 
 determinate, but at length defined by Offa's Dyke. The 
 frontier territory traversed by the Dyke, was then and 
 long after known as the Marches of Mercia (or England) 
 and Wales. The precise relation of the Dyke to the 
 Marches, and the peculiar political and legal character 
 of the latter, are derivable from the nature of the The marches 
 Anglo-Saxon mark or march. And then, after quoting ^^^g^ and 
 some passages on the subject from Mr. Kemble's Wales. 
 Saxons in England, he proceeds (/), " The kingdom of 
 Mercia, emphatically the mark country, chiefly formed 
 out of the original mark against the Britons, and always, 
 and at length exclusively, bordering upon them, falls 
 under peculiar considerations. Down to the reign of 
 Off a, its western limit seems to have been left undefined, 
 and in fact was perpetually advancing as the Britons 
 receded ; while, on the other hand, the Britons were 
 ever withdrawing their settlements to some distance 
 within their line of defence, leaving the intervening 
 space as a protection against their encroaching enemies. 
 And thus the mark of Mercia toward the Britons ever 
 adjoined a district corresponding in its main features, 
 namely the mark of the Britons toward Mercia." 
 Again (/) : " The district, being of great extent, and 
 
 (ff) Vol. 38, p. 19. (//) Page 19. (/) Page 21.
 
 64 
 
 PRESCRirXIVE RIGHTS. 
 
 The mark 
 partly iuac- 
 cestiible. 
 
 The mark 
 rcdufcd by 
 authuritv. 
 
 Offa's Dyke. 
 
 TIio rc'lucfd 
 mark filled 
 with Suxous. 
 
 partly of inaccessible character, and little controlled by 
 the governments which claimed authority over it, early 
 became the receptacle of lawless and predatory bands, 
 which pei-petually disturbed, plundered and oppressed 
 their more settled and ci^dlized neighbours, and almost 
 with impunity. It further served to conceal the ad- 
 vances and cover the retreat of the more regnal in- 
 vasions; by which the Welch princes constantly avenged 
 the wrongs of their race, and endangered the power or 
 checked the conquests of the Mercian kings. It became 
 in short a standing menace to the Mercian people and 
 government, daily more intolerable, and calling more 
 loudly for repression. The primitive mark was from 
 time to time, as social or political causes arose, re- 
 duced by public authority, and, to the extent of such 
 reduction, deprived of its character as mark — that 
 is, parcelled out among private owners; and, if the 
 marks of two communities adjoined, such a measui-o, 
 on the part of either, was preceded by an agreement 
 as to their common limit. The remedy applicable 
 to the condition of the marches of Mercia and Wales 
 was analogous, namely, to reduce and so far un march 
 them — to plant regular settlements and extend efficient 
 covemment in the waste and lawless district — ^to 
 confer upon civilized bodies of Mercian subjects a per- 
 sonal as well as national interest in its preservation 
 and improvement, and so to constitute them a fimi and 
 enduring bulwark on the frontier. The first step 
 towards this policy was the establishment of a common 
 limit of these marclies, and such a limit was OlTa's 
 Dyke." Again (/•) : " The construction of the Dyke was 
 immediately followed l)y tlie occupation of the Mercian 
 mareli. Offa drove the Welch beyond tlie Dee and 
 Wye, and filled with Saxons the plain and more level 
 regions lying between these rivers and the Severn. 
 
 (/.) Page 23.
 
 VILLAGE COMMUNITIES. 65 
 
 The accounts of tlio gradual occupation of the land on 
 the eastern side of the dyke and the river Wye by the 
 English, show that the same policy was continued by 
 the rulers of Mercia and subsequently of England." 
 "Again {»/), such was the recognized character of the 
 dyke at the time of the Norman Conquest of England. 
 Neither then, nor ever during the period that Wales 
 remained separate from England, was any other limit 
 of the two countries laid down. Subsequently to the 
 Conquest, the marches of England and Wales, and 
 lastly the remainder of Wales itself, fell under a 
 peculiar system of occupation and government, which 
 superseded this national boundary line, and almost 
 effaced it from history, Offa's Dyke no longer obtained 
 express mention, because no historical or political event 
 turned on the common limit of the marches, which 
 came to be regarded as one district of uniform cha- 
 racter, and to be called, by an ob"\dous abridgment, the 
 marches of Wales. The practical distinction for legis- The marches 
 lative and administrative purposes was between the *^* "^^^^^• 
 shires of Chester, Salop, Hereford and Cloucester, 
 according to theu' ancient bounds, on the one hand, 
 and the marches on the other. Yet the ancient 
 character of the dyke continued to be recognized in 
 matters of local description." 
 
 Mr. Milman then notices the Act for laws and 
 justice to be administered in Wales in like form as it is 
 in this realm (»), which Act recites, "And forasmuch 
 as there be many and divers lordships marchers within 
 the said county or dominion of Wales, lying between Marches 
 the shires of England and the shires of the said country pa^eTo'f any 
 or dominion of Wales, and being no parcel of any shires, 
 other shires, where the laws and due correction is used 
 and had, by reason whereof hath ensued and hath been 
 practised, perpetrated, committed and done, within and 
 {m) Page 24. («) Stat. 27 Heu. VIII. c. 20. 
 
 w.p. r
 
 66 PRESCRIPTIVE RIGHTS. 
 
 among the said lordships and countries to thorn adjoin- 
 ing, manifold and divers detestable murders, burning 
 of houses, robberies, thefts, trespasses, routs, riots, un- 
 lawful assemblies, embraceries, maintenances (o) , receiv- 
 ing of felons, oppressions, ruptures of the peace, and 
 manifold other malefacts, contrary to all laws and 
 justice, and the said offenders thereupon making their 
 refuge from lordship to lordship were and continued 
 without punishment or correction;" for the duereforma- 
 Somo marches tion thereof the Act enacts, that some of the said 
 Ein^Ts'h ^^ lordships marchers shall be united, annexed and joined 
 shii-es. to divers of the shires of England ; and divers of the 
 
 Some to said lordships marchers shall be united, annexed and 
 
 Welch shires. JQij;^g(3^ to divers of the shires of the said country or 
 The rest made dominion of Wales. And the residue of the lordships 
 lutouew marches was divided into certain particular counties or 
 
 shires, namelj^, — the county of Monmouth, the county 
 of Brecknock, the county of lladnor, the county of 
 Montgomery, and the county of Denbigh. Thus a 
 district, which in ancient times was all mark or march, 
 in the strict sense of the word, namely, a mere unen- 
 closed waste, became in process of time settled and 
 civilized. 
 
 We see then that in this country, and in some of 
 the counties of Wales, the same process appears to have 
 Gradual gone on. The gradual settlement of land by small 
 
 settlement of communities, vills or townships formed the commence- 
 communitics. ment of civilization. Of the existence of such com- 
 munities there is ample trace in our law in the 
 Common numerous common fields, which long existed until 
 
 the passing of the various Enclosure Acts of the last 
 and present century; though I believe some are still to 
 be found. A common field is a very different thing 
 
 (o) Embracery is the unlawful ful maintaining- the suit of au- 
 tampering with or frighteuiug a other person. 
 Jury ; maintenance is the unlaw- 
 
 fields.
 
 Mai of a Jjorti^in of Coatc Common Ficid 
 
 •
 
 VILLAGE COMMUNITIES. 67 
 
 from what is ordinarily called a common. What are Difference 
 
 T M n 1 V 1 between com- 
 
 oramanly called common or waste grounds are open J^^Q^ f^^^^jg 
 pasture lands, on which the tenants of a manor, or and commons, 
 other persons, have a right to put their cattle to feed. 
 But a common field is a field belonging to numerous Common cul- 
 
 1 17 p -r 1 ■ -11 tivation of 
 
 owners; whose lands, as lar as 1 know, invariably common 
 assume a remarkable shape, viz. that of very narrow ^elds. 
 strips, sometimes not more than 30 or 40 feet or even 
 less in width, running parallel to one another, with no 
 fence between (p). These strips of land are cultivated 
 in common to this extent ; that, by the rules of the 
 community which the owners form, the lands must 
 generally be sown with wheat one year, with barley or 
 oats the next year, and the third year must lie fallow, 
 or in some other similar rotation. Each owner cul- 
 tivates his own lands according to the rules thus laid 
 down. When the crops are taken off, the land being 
 open and undivided by any fence, the owners put in 
 their cattle, each according to the extent of his land, 
 who range over the whole, feeding on the stubble that 
 is left not only on the lands of their owners, but also 
 on all the other lands in the same field. The conse- 
 quence of this evidently is, that no person can cultivate 
 his land otherwise than as his neighbours do. If, in 
 the year that the land is fallow, any person should 
 attempt to sow wheat or green crops, or anything else 
 on his lands, the cattle of his neighboui's would at once 
 eat it up and destroy it ; for, during the year in which 
 the field is fallow, the neighbours put in their cattle to 
 range over the whole. Now it is remarkable how, as 
 
 (p) The annexed map repre- in that parish. The broken lines 
 
 sents a portion of the common represent the unfenced boun- 
 
 field belonging to the hamlet of daries of the different parcels 
 
 Coate, in the parish of Bampton, which together compose the 
 
 Oxon, as it existed in 1854. It is common field. The system was 
 
 extracted from the map made for evidently formed before the high 
 
 the purpose of the enclosure of road was made, as it cuts through 
 
 the common fields and commons some of the parcels. 
 
 I 
 
 F 2
 
 GS 
 
 PRESCKTrTIVE mOTITS. 
 
 Common of 
 shack. 
 
 Sir Miles 
 Corbet'' s case. 
 
 Ignorance of 
 the judges in 
 the reign of 
 Elizabeth as 
 to common 
 fields. 
 
 time rolls on, one's knowledge of antiquity in some 
 cases ratlier increases than diminishes. The right of 
 common in these common fields was sometimes desig- 
 nated as commo)} of sl/acJ,-, particularly in the county of 
 Norfolk, and Lord Coke, in Sir Miles Corbet's case (q), 
 informs us that he thought that case " fit to be reported 
 (the case being one respecting a common field), because 
 it is a general case in the said country," meaning the 
 county of Norfolk ; " and at first the Court was al- 
 together ignorant of the nature of this common called 
 shack." Now it is abundantly clear that common 
 fields, of the kind wliich I have just mentioned, have 
 long existed, not only in the county of Norfolk, but in 
 many other counties in England ; I believe in almost 
 every, if not in every county. But the judges of the 
 Court of Exchequer in the 27th year of the reign of 
 Uueen Elizabeth, were so ignorant of what was going 
 on in country parts, that they knew nothing of this 
 kind of common ; much less were they aware that the 
 same thing took place in Germany ; still less did they 
 know that village communities of a similar nature had 
 long existed in India amongst races originally of the 
 same stock as ourselves. There is a note by Serjeant 
 "Wilson in his edition of Coke's Reports that the like 
 intercommoning is in Lincolnshire, Yorkshire and 
 other counties. But it seems strange, and I hardly 
 know how to account for it, that a system of agri- 
 culture, which was undoubtedly prevalent throughout 
 the kingdom, should be so little known to the judges of 
 those days. And it is hardly to be wondered at, that 
 with so few materials from which to draw a conclusion, 
 they should have attributed the origin of common 
 appendant universally to the manorial system, rather 
 than to the more ancient system of vills, townships or 
 communities cultivating their arable land in common, 
 and using in common the adjoining waste not culti- 
 (y) 7 Rep. 5.
 
 VILLAGE COMMUNITIES. G9 
 
 vatcd for the pasture of their cattle and sheep. In Sir 
 3Iik'fi Corbet's case (/•), it is laid down that this kind of 
 common was originally but in the nature of a feeding 
 because of vicinage, for avoiding of suit. I apprehend, 
 however, that this is not the true explanation. The 
 true explanation is, I venture to think, that on which 
 modern researches have thrown so much light, namely, 
 that common of this nature arose from the common cul- 
 tivation by the township or community of the lands 
 which were marked out as arable by that community 
 for such common cultivation. 
 
 The following curious extract from Fitzherbert's 
 Surveying, written in 153S) (.s), shows how universal 
 the system of common field cultivation then was, and it 
 recommends the substitution of the modern system of 
 separate enclosures. 
 
 " Howe to make a township that is worthe xx. Fitzherbert's 
 marke a yere, worth £20 a yere. T^^Zo 
 
 "It is undoubted, that to euery townshyppe that of common 
 standeth in tyllage in the playne countrey, there be 
 errable landes to plowe and sowe, and layse to tye or 
 tedder their horses and mares upon, and common 
 pasture to kepe and pasture theyr catell and shepe 
 upon. And also they have medowe grounde to get 
 theyr hey upon. Than to let it be knowen how many 
 acres of errable lande euery man hath in tyllage, and 
 of the same acres in euery felde to chaunge with his 
 neighbours, and to leye them toguyther, and to make 
 hym one seueral close in euery fielde for his errable 
 landes, and his leyse in euery felde to leye them 
 togyther in one felde, and to make one seueral close 
 for them all. And also another seuerall close for his 
 portion of his common pasture, and also his porcion of 
 his medowe in a seuerall close by itselfe, and al kept in 
 
 (;•) 7 Eep. 5. (*) Chap. 40.
 
 rREscmrTivE rights. 
 
 seueral both in wynter and somer : and cuery cottage 
 shall have his portion assigned liym accordynge to his 
 rent, and than shall not the ryeh man overpresse the 
 poore man with his catell, and every man may eate his 
 owne close at his pleasure. And vncloiibted, that hay 
 and strawo that will finde one beest in the house will 
 find two beestes in the close, and better they shall lyke. 
 For those beastis in the house have short heer and 
 thynne, and towarde Marche they will pylle and be 
 bare. And therefore they may nat abyde in the felde 
 byfore the heerdmen in winter tyme for colde. And 
 those that lie in a close under a hedge have longe heare 
 and thyck and they wyll never pylle nor be bare, and by 
 this reason the husbande maye kepe twyse so many 
 catell as he did before."
 
 ( '1 ) 
 
 LECTURE VI. 
 
 TiiK commiLuities who cultivate conimou fields some- 
 times have special customs of their own. As a rule, 
 the owuer of lands in a common field cannot enclose 
 
 them. But a custom may exist for any owner of land Custom to 
 
 n 1 1 1 -I ^ • J • T 1 enclose com- 
 
 m a common field to enclose his portion, and so keep j^q^ fj^^^j 
 out his neighbours, giving up his right of common l'^ii<i- 
 over the rest of the field. The validity of such a 
 custom is denied by Chief Baron Comyns in his 
 valuable Digest (a). But he was mistaken. And his 
 mistake is pointed out and corrected by Mr. Justice Such a cus- 
 Bayley in his judgment in the case of Cheesemau v. 
 Harding ih). The law on the point of a custom to 
 enclose lands in a common field is thus laid down by 
 Lord Coke in Sir Miles Corhefs case (c), " If," he Sir irucs 
 says, "in the town of D. for example "(and mark, he 
 says in the town of D. and not in the manor of D.), "if 
 in the toicn of D. one who hath purchased divers parcels 
 together, in which the inhabitants have used to have 
 shaclx, and long time since has enclosed it ; and not- 
 withstanding always after harvest the inhabitants have 
 had shack there, by passing into it by bars or gates 
 with theu" cattle, there it shall be taken as common 
 appendant or appurtenant, and the owner cannot 
 exclude them of common there, notwithstanding he 
 will not common with them, but hold his own land so 
 enclosed in severalty ; and that is proved by the usage, 
 for, notwithstanding the ancient enclosure, the inhabi- 
 tants have always had common there. But if in the 
 town of S." (mark again the word foicn), "the custom 
 
 {a) Com. Dig. tit. Common {/)) 1 B. & Aid. 712. 
 
 (E.). ('•) 7 Ecp. 5.
 
 72 niEsciiirTiVE rights. 
 
 and usage hath been that every owner in the same 
 town hath inclosed their own lands from time to time, 
 and so hath held it in severalty there, this usage proves 
 that it was hut in the nature of shack originally for 
 the cause of vicinage, and so it continues; and therefore 
 there he may enclose and hold in severalty, and exclude 
 himself to have shack with the others," 
 
 Cases of There are two cases in Serjeant Wilson's Reports, in 
 
 customs to 1*1 L J! J.^ j?ii' 
 
 inclose lauds wliich a custom lor the owners oi lands m common 
 iucoiumoii fields to iuclose against their neighbours was proved 
 ^^^.^.' , and acted upon. The first of these is Barker v. Dixon (d). 
 
 JJixon. In that case there was a great field, containing 110,000 
 
 acres, in which the plaintiff had a right of common, and 
 the defendant inclosed part of the field. The defendant 
 pleaded the custom that from time out of mind all those 
 who had any land in the said field might inclose as 
 much thereof ad Ilhituni as they pleased, and that the 
 defendant by virtue of his possession and of the custom 
 inclosed. The plaintiff replied and traversed the custom 
 to inclose. But at the trial of the case in 1742 the 
 defendant proved his plea very satisfactorily; and it 
 was held by the coui't that it was a very good custom, 
 and that the freeholders under such a custom might 
 well inclose against one another, as in Sir 3Iiles Corbct[s 
 Howv. case. The other case is that of Iloir v. Strode (c). 
 
 This was an action of replevin for taking the plaintiff's 
 cattle in a certain place called Banbury's Furlong, in the 
 county of Somerset. The defendant avoAved that the 
 place Banbury's Fiuiong was his own soil and freehold, 
 and because the plaintiff's cattle were trespassing there, 
 he took them dau/atjvfeas/tnf. The plaintiff then pleaded 
 that the land was parcel of a field called Eastfield, in 
 the parish of Butleigh in the said county, and that she 
 was seised in her demesne as of fee of ten acres of land 
 in the same parish ; and that she, and all those whose 
 
 {d) 1 AYilson, 44. (6-) 2 AVilson, 2G9, 
 
 Strode.
 
 COMMON FIELDS. 
 
 estate slie had, liad from time immemorial been accus- 
 tomed to have common of pasture in Eastfield, whereof 
 Banbury's Furlong was parcel, her and their own lands 
 in the same field excepted, for all her and their com- 
 monable cattle, levant and couchant on the said ten 
 acres of land, every year, when the same field had been 
 sown with any kind of corn or grain, from the time that 
 the corn or grain in that year growing therein had been 
 cut down and carried away until the same field or some 
 part thereof had been re-sown with some kind of corn or 
 grain, as to the said ten acres of land belonging and 
 appertaining. The defendant replied that in the parish 
 of Butleigh there are two common fields, one called 
 Eastfield and the other called Westfield, in which com- 
 mon fields the lands of divers persons for the time being 
 now do lie, and from time immemorial have laid dis- 
 persedly and in several parcels ; and also pleaded a 
 right of inter-commoning, while the lands were not 
 inclosed, throughout all the uninclosed parts, as alleged 
 by the plaintifl:. But he further said that within the 
 said parish there was an ancient custom, that ever per- 
 son, having any lands in the common fields or either of 
 them, and wishing to inclose the same or any part 
 thereof from the rest, might do so, and so hold them in 
 severalty, discharged from any common of pasture of 
 any other person whatsoever ; and that the person so 
 inclosing thereby discharged all the rest of the unin- 
 closed lands, in the said common fields or either of them, 
 from all common of pasture in respect of the lands so 
 inclosed by him. And he pleaded that, in pursuance of 
 that custom, he inclosed his own lands accordingly. The 
 plaintiff denied the custom to inclose; and the defen- 
 dant at the trial produced five very old deeds, and 
 several other deeds, which proved the custom to inclose. 
 He also called seven old witnesses ; three of the oldest 
 proved the custom to inclose of theii- own knowledge, 
 for a great number of years; and that they had been
 
 74 PRESCRirTIVE RIGHTS. 
 
 told, wlion they were young, by very old persons then 
 living, that it was the custom for the landowners in 
 these fields to inclose, and said that they thought any 
 man might inclose his land. 8ome of the witnesses 
 however swore that if a man left any bit, only an acre, 
 uninclosed, he used to enjoy his common in regard to 
 that acre uninclosed Just as before, and used to put in 
 any number of cattle without stint. Upon this the 
 judge who tried the case thought the defendant had not 
 proved his custom ; but the coui-t granted a new trial on 
 the ground of misdirection. And the learned judges of 
 the Comi of Common Pleas held that the right of com- 
 mon before inclosure made was for cattle levant and 
 couchant upon each person's uninclosed lands, and that 
 what some of the witnesses said of common without 
 stint is nothing to the purpose; for there is no such 
 thing as common without stint belonging to land ; 
 common belonging to land can only be for cattle levant 
 and couchant thereon; that the custom to inclose was 
 clearly proved ; and when the land is inclosed it is freed 
 and discharged from any person's former right of com- 
 mon thereon; and of this opinion was the whole court. 
 There may therefore in some cases be a valid custom 
 that any one owner in a common field may inclose 
 against the others. And, where such a custom exists, 
 it is possible that, as Lord Coke says, the right of com- 
 mon may have existed merely by reason of vicinage ; 
 but the general rule is undoubtedly otherwise. 
 
 With regard to the mention of common fields in Acts 
 
 of Parliament, there is an incidental reference to lands 
 
 which on certain days of the year are open for common 
 
 Stat. 24 Geo. of pasture in the Act of 24 Geo. II. c. 23, anno Dom. 
 
 coiTectin''-^tii ^^^^- ^^^^ ^^^^ ^^ -^ ^^ for regulating the commence- 
 
 calcndar. mcut of the year, and for correcting the calendar then 
 
 in use. Previously to this Act, the year begun on the 
 
 2oth of March, and not as now on the 1st of January.
 
 COMMON FIELDS. 75 
 
 It was also found that the calendar had gone wrong by 
 eleven days ; and what is now called the old style, was 
 altered into the new style. By this Act the year was 
 to commence in future on the 1st of January; and the 
 natural day next immediately following the 2nd of 
 September, 1752, was to be reckoned and accounted as 
 the 14th of September, omitting for that time only 
 the eleven intermediate nominal days of the common 
 calendar. By this means some persons supposed that 
 their lives had been shortened by eleven days. The 
 Act then recites (/') that according to divers customs, 
 prescriptions and usages, in certain places within the 
 kingdom, certain lands and grounds were, on particular 
 nominal days and times in the year, to be opened for 
 common of pasture and other purposes ; and, at other 
 times, the owners and occupiers of such lands and 
 grounds have a right to inclose or shut up the same for 
 theii' own private use ; and there is in many other 
 instances a temporary and distinct property and right, 
 vested in different persons, in and to many such lands 
 and grounds, according to certain nominal days and 
 times in the year. The Act then recites that the antici- 
 pation or bringing forward the said nominal days and 
 times by the space of eleven days, according to the new 
 method of supputation, might be attended with many 
 inconveniences. And it enacts that nothing in the Act 
 contained shall extend or be construed to extend to 
 accelerate or anticipate the days or times, on which any 
 such temporary or distinct property or right in or to 
 any such lands or grounds as aforesaid, was to com- 
 mence ; but that all such lands and grounds as aforesaid 
 should be opened, inclosed or shut up, and such tempo- 
 rary and distinct property and right in and to such 
 lands and grounds as aforesaid, should commence and 
 begin upon the same natiu'al days and times, on which 
 the same should have been so respectively opened, in- 
 (/) Sect. 5.
 
 76 
 
 TRESCRirTIVE RIGHTS. 
 
 closed or sliut up, or would have commenced or begun, 
 in case the Act liad not been made ; that is to say, 
 eleven days later than the same would have happened 
 according to the said new account and supputation of 
 time. 
 
 common 
 fields. 
 
 The first time in which I can find any express notice 
 by the legislature of lands in common fields is in the 
 Stat. 13 Geo. statute 13 Geo. III. c. 81, which is intituled "An Act 
 Ke<^iUation of ■^'-'^' ^^® better Cultivation, improvement and regulation 
 of the common arable fields, wastes and commons of 
 pasture in this kingdom." This Act provides (r/) to 
 the efitect that tln-ee-fourths in number and value of the 
 occupiers of such oj)en or common field lands, in each 
 parish or place, cultivating and taking the crops of the 
 same, and having the consent of the owners in manner 
 therein mentioned, and likewise the consent of the tithe 
 owner first had in writing, may, at a meeting to be 
 held and summoned as therein mentioned, direct the 
 ordering, fencing, cultivation and improvement thereof ; 
 and that the same shall bo continued in such com'se of 
 husbandry, and be cultivated under such rules, regula- 
 tions and restrictions as the meeting shall direct. But 
 such rules, regulations and restrictions are not to be 
 in force for any longer term than six years, or two 
 rounds (//), according to the ancient and estabhshed 
 course of each parish or place respectively (?). The 
 Act also empowers (/»•) the appointment of a field reeve, 
 or field reeves, to superintend the ordering, fencing, 
 cultivating and improving of such common fields, and 
 to see that the same are cultivated according to the 
 regulations agreed upon at the general meeting for that 
 
 Field reeves. 
 
 {(/) Stat. 13 Geo. III. c. 81, s. 1. 
 This Act still remains unre- 
 pealed, except so much as relates 
 to double costs, which is repealed 
 by the Statute Law Eevision 
 
 Act, 1861, Stat. 24 & 25 Vict, 
 c. 101. 
 
 (A) See ante, p. G7. 
 
 (0 Sect. 2. 
 
 (k) Sects. 3, 5, G.
 
 co:mmox fields. 77 
 
 purpose. The Act contains provisions (/) saving the 
 rights of persons who may have rights of common over 
 the common field, without having any land therein. 
 The Act also empowers the ploughing up, under certain 
 conditions, of waste halks, slades or meers, which often 
 lie very inconveniently interspersed amongst the arahle 
 lands in common fields (;;^). But the Act contains no 
 provision authorizing any permanent inclosure of land 
 in common fields, saving only this proviso {ii), that 
 nothing in the Act contained shall prevent or extend to 
 prevent any person or persons from inclosing all or any 
 part or parts of his, her or their land to and for his, her 
 or their own use or benefit, such person or persons 
 having full power or right so to do ; evidently referring 
 to such cases as I have just mentioned (o), where a 
 custom for any one to inclose his lands may be proved 
 to exist. 
 
 Authority for the exchange of lands in common fields Exchange of 
 was, however, given by the Act 4 & 5 Will. IV. c. 30, ^on fidcS"" 
 intituled " An Act to facilitate the exchange of lands Stat. 4 & 5 
 lying in common fields." But this did not in any way J\q' 
 interfere with the mode of cultivation ; nor did it give 
 any right to the parties exchanging to inclose their 
 lands. The advantage of an exchange was that, whereas 
 in almost all cases the lands were held in very small 
 strips, and generally apart from one another, the owners 
 of several strips might, by means of exchange, consoli- 
 date then- holdings into larger parcels. Soon after this, 
 however, an Act was passed " for facilitating the in- Inclosure of 
 closure of open and arable fields in England and Wales," ^g^™"^ 
 statute 6 & 7 Will. IV. c. 115. The power given by stat. 6 & 7 
 this Act was to inclose lands in such fields, so as to Will.^IV. 
 extinguish the right of intercommonage which existed, 
 as well over as in respect of such lands ; and it enabled 
 
 (1) Sects. 8, 9, 10. (w) Sect. 27. 
 
 (w) Sects. 11, 12, 13, 14. {o) Ante, i^p. 71, 72.
 
 78 
 
 PRESCRIPTIVE RIGHTS. 
 
 Stat. 3 & 4 
 Vict. c. 31, 
 extendiug 
 stat. 6 & 7 
 WUl. IV. 
 c. 115. 
 
 such inclosures to be effected by means of commissioners, 
 and made the inclosm^es binding on persons under dis- 
 abilities as well as on those able to concur. This Act 
 was afterwards extended by statute 3 & 4 Vict. c. 31, so as 
 to enable the commissioners, not only to determine, but 
 also to straighten the boundaries of parishes, manors, 
 hamlets, or districts in which the lands, which had been 
 inclosed, lay {]>) ; and the provisions of the Act were 
 also extended to such open and common arable fields as 
 have adjacent thereto, but not separated by any fence 
 therefrom, certain tracts of grass land commonable 
 during part of iho year, and holden in severalty, or by 
 lot or apportionment, by or among persons interested 
 therein duiing other parts of the year {q). 
 
 General lu- 
 closure Act. 
 Stat. 8 & 9 
 Vict. c. 118. 
 
 Sect. 11, 
 lands subject 
 to be in- 
 closed. 
 
 There is now, however, a General Inclosure Act, 
 statute 8 & 9 Vict. c. 118, which has been amended and 
 extended by numerous subsequent Acts (r). And the 
 11th section of that Act specifies the lands which are 
 subject to be inclosed under the Act. They are as 
 follows: — "All lands subject to any rights of common 
 whatsoever, and whether such rights may be exercised or 
 enjoyed at all times, or may be exercised or enjoyed 
 only diu'ing limited times, seasons, or periods, or be 
 subject to any suspension or restriction whatsoever in 
 respect of the time of the enjoyment thereof; all gated 
 and stinted pastures, in which the property of the soil, 
 or of some part thereof, is in the owners of the cattle- 
 gates, or other gates or stints, or any of them ; and also 
 all gated and stinted pastures, in which no part of the 
 property of the soil is in the owners of the cattle-gates, 
 or other gates or stints, or any of them ; all land held, 
 
 31,8.2 
 
 (p) Stat. 3 & 4 Vict 
 
 {']) Sect. 4. 
 
 (;■) Stats. 9 & 10 Vict. c. 70 ; 
 10 & 11 Vict. c. Ill ; 11 & 12 
 Vict. c. 99 ; 12 & 13 Vict. c. 83 ; 
 ir, & IG Vict. c. 79 ; 17 & 18 
 
 Vict. c. 97 ; 20 & 21 Vict, c. 31 ; 
 22 & 23 Vict. c. 43; 31 & 32 
 Vict. c. 89 ; 36 Vict. c. 19 ; 39 & 
 40 Vict. c. 56, and 42 & 43 Vict, 
 c. 37.
 
 COMMON MEADOWS. <9 
 
 occupied or used in common, either at all times or during 
 any time or season, or periodically, and either for all 
 purposes, or for any limited purpose, and whether the 
 separate parcels of the several owners of the soil shall 
 or shall not be known by metes or bounds, or otherwise 
 distinguishable ; all land in which the property or right 
 of or to the vesture or herbage, or any part thereof, 
 during the whole or any part of the year, or the pro- 
 perty or right of or to the wood or underwood growing 
 and to grow thereon, is separated from the property of 
 the soil ; and all lot meadows and other lands, the occu- 
 pation or enjoyment of the separate lots or parcels of 
 which is subject to interchange among the respective 
 owners in any known course of rotation, or otherwise." 
 
 And this leads me to mention the fact which has Common 
 already incidentally appeared that, in addition to the ™^^<^o^^'^- 
 arable lands possessed by each community, and owned 
 in severalty by its several members, were not un- 
 frequently common meadow or pasture lands, origi- 
 nally belonging to the community, and subsequently 
 holden by lot, or apportionment amongst the persons 
 interested, during the whole or part of the year. 
 These Jot meads, as they are called, are mentioned in Lot meads, 
 the law books ; and they are a curious kind of shifting 
 inheritance. Lord Coke, in his Commentary on Little- 
 ton (s), has the following passage : — "And albeit land 
 whereof our author here speaketh, be the most firm and 
 fixed inheritance, and therefore it is called solum quia 
 est solidiim, and fee simple the most highest and abso- 
 lute estate that a man can have ; yet may the same at 
 several times be moveable, sometime in one person and 
 altevnis rieibiis in another ; nay sometime in one place 
 and sometime in another. As, for example, if there be 
 eighty acres of meadow, which have been used time out 
 of mind of man to be divided between certain persons, 
 
 M Co. Litt. 4 a.
 
 80 
 
 PRESCRIPTIVE RIGHTS. 
 
 Livery of 
 seisiu of lot 
 meads. 
 
 Lammas 
 meadows. 
 
 and that a certain number of acres appertain to every 
 of these persons ; as, for example, to A. thirteen acres, 
 to be yearly assigned and lotted out, so as sometime 
 the thirteen acres lie in one place and sometime in 
 another, and so of the rest ; A. hath a moveable fee 
 simple in thirteen acres, and may be parcel of his 
 manor, albeit they have no certain place, but yearly set 
 out in several places, so as the number only is certain 
 and the particular acres or place wherein they lie after 
 the year incertain. And so it was adjudged in the 
 King's Bench upon an especial verdict." And in 
 another place (/), Lord Coke inquires, where livery of 
 seisin shall be made, in a case, where a man has a 
 moveable estate of inheritance, according to the ex- 
 ample here put, in thirteen acres. And he says, first, 
 if they be parcel of a manor, they may pass by the 
 name of the manor ; but if they be in gross, then the 
 charter of feoffment must be of thirteen acres lying and 
 .being in the meadow of eighty acres, generally, with- 
 out bounding or describing of the same in certain ; and 
 livery of seisin of any thirteen acres allotted to the 
 feoffee for a year secundum formam cartce is a good 
 livery to pass the contents of thirteen acres, where- 
 soever the same lie in that meadow. And in another 
 place {ii)^ he remarks that if the owner of those thirteen 
 acres grant a rent-charge out of those thirteen acres 
 generally, lying in the meadow of eighty, without 
 mentioning where they lie particularly, there, as the 
 state of the land removes, the charge shall remove also. 
 Some of the meadows in which limited rights of com- 
 mon exist are thrown open on Lammas Day, which is 
 the 1st of August, and they are accordingly called 
 Lammas meadows. And, by virtue of the Act of 
 Parliament to which I have just referred (^), the time 
 of throwing open the land to the commoners is now 
 
 (0 Co. Litt. 48 b. 
 («) Co. Litt. 313 b. 
 
 (.r) Stat. 24 Geo. 2, c. 23, ante, 
 p. 74.
 
 CATTLE GATES. 81 
 
 eleven days later, viz. on tlie 12tli of August in every 
 year. 
 
 The Act of 13 Greo. III. c, 81, to which I have already Opening and 
 referred (y), contains provisions (s) for postponing the common pas- 
 opening of common pastures, and also for fixing the tnres. 
 time for shutting up and unstocking the same. And Power to pas- 
 
 , T . . . . , K .11 . ture sheep on 
 
 there is a curious provision (r^) empowering the major common pas- 
 part in number and value of persons having right of tm'«^s mstead 
 
 OX CSittlCj 
 
 common in a common pasture, at a meeting to be called 
 as therein mentioned, by writing under their hands, to 
 alter and change the manner and custom of feeding 
 and depasturing the common pastures, so far as instead 
 of horses, cows and other cattle, to allow the same to be 
 fed and depastured with sheep, at the option of each 
 person respectively having right of common ; and to and to stint 
 limit and stint the number of sheep each such person, ^^f ^g^^eep ^^ 
 having right of common in such common pastures, shall 
 respectively feed and depasture thereon in due propor- 
 tion to their respective stints or rights. 
 
 You mil observe that the Act of 8 & 9 Yict. c. 118, 
 speaks of two distinct kinds of what are there called 
 gated and stinted pastures, viz., those in which the 
 property of the soil, or of some part thereof, is in the 
 owners of the cattle gates or other gates or stints or 
 any of them ; and, secondly, those gated and stinted 
 pastm^es, in which no part of the property of the soil is 
 in the owners of the cattle gates, or other gates or 
 stints, or any of them. And I think that the distinc- 
 tion here taken serves to reconcile, what otherwise 
 appears to be a great contradiction and confusion in 
 the books, with respect to what are commonly called 
 cattle gates or beast gates. In some cases they are said Cattle or 
 to comprise an interest in the soil, — in other cases they ^^^ ^^ ^^' 
 are said to comprise no interest in the soil. I appre- 
 
 il/) Ante, p. 76. (;) Sects. 17, 18, 19. («) Sect. 20. 
 
 W.P. G
 
 82 PRESCRIPTIVE RIGHTS. 
 
 When they hend the triie reason for the different decisions is this, — 
 
 Steresrin the ^^^^ "^ ^^^® ^^^®^ ^^® ^°^^ ^^ vested in the different 
 soil. owners as tenants in common in fee, in undivided shares, 
 
 corresponding to their interest in the surface, as measured 
 by the number of cattle they have a right to put on. 
 In this case, the mines and minerals would belong to 
 the persons entitled to rights of pasture ; and no person 
 would have any right to sport over the lands without 
 their leave. Whereas, if the right of the soil was in 
 the lord of the manor, he alone would be entitled to the 
 mines and minerals ; he would have the sole right to 
 sport over the lands ; and the persons entitled to rights 
 of pasture would have nothing but an incorporeal right 
 to take the grass and herbage by the mouths of their 
 cattle. An instance of the former class of cases seems 
 Hex V. to have occurred in the case of T/ie King v. The Inhahi- 
 
 Inhab!''^ ^("^^'^ ^\f Whixicy {h). In that case the cattle gates in 
 
 question are stated to have passed by lease and release ; 
 and the judgment of the Court implies that such an 
 assurance was necessary to pass them. They were, 
 therefore, held to be a tenement, sufficient to enable a 
 pauper to gain a settlement, by the occupation of such 
 a cattle gate, within the poor law then in force (c). 
 Here the fact that a lease and release were necessary 
 for the conveyance of the cattle gates showed that they 
 must have comprised some interest in the soil; for a 
 mere incorporeal hereditament then lay in grant only, 
 and was not required to be conveyed by lease and re- 
 lease, which was the proper assurance of a hereditament 
 which was corporeal. And there are other authorities 
 to the effect that an ejectment will lie for a cattle gate 
 or beast gate {d). But the authorities are far from dis- 
 
 {b) 1 T. Rei3. 137. The King v. The Inhabitants of 
 
 [c) Some hereditaments clearly HoUinyton, 3 East, 114. 
 
 of an incorporeal nature have, (rf) A dictum in Barnes v. 
 
 however, been held to be tene- Peterson, 2 Strange, 1063; Ben- 
 
 ments within the Poor Law Acts. nington v. Goodtitle, 2 Strange, 
 
 See per Lord Ellcnborough in 1084, in which latter case, how-
 
 CATTLE GATES. 83 
 
 tinct ; and in these cases I tliink it must be considered 
 that the phrase cattle gate or least gate was a popular 
 mode of expressing the ownership of an undivided share 
 in the soil, coupled with an agreed mode of enjoying 
 the surface, by putting thereon so many cattle, in 
 common with the cattle of the other owners of the 
 remaining undivided shares. 
 
 On the other hand, I believe that, generally speak- Where cattle 
 ing, no part of the property of the soil belongs to the pj^nolii". 
 owner of a cattle gate. It is often a mere right of terest in the 
 common for so many cattle belonging to a farm. 
 Sometimes it is a right of common in gross for so many 
 cattle {e). Sometimes it is a right to an undivided 
 share of a several pasture (,/). There is a case of Earl Earlof Lons- 
 of Lonsdale v. Rigg (g), in which the cattle gates there '^"^'^- -^"^^• 
 mentioned were held to confer no interest in the soil, 
 but to be merely rights of pasture by the cattle gate 
 owner, the soil remaining in the lord of the manor ; so 
 that the lord might maintain an action of tresjoass 
 against a cattle gate owner for sporting over it without 
 his permission. In this case, each cattle gate gave the 
 owner thereof a right of depasturing in a tract of 
 inclosed pasture land, within the manor of Bretherdale 
 in the county of Westmoreland, called Bretherdale 
 Bank, a certain number of cattle and sheep, from the 
 26th of May to the 24th of April ; but neither cattle 
 nor sheep were allowed to pasture there between the 
 24th of April and the 26th of May. The time of 
 opening the pasture appeared originally to have been 
 the 1st of June ; for which the 26th of May had been 
 substituted. There were eighty cattle gates in Bre- 
 therdale Bank ; and the whole of the cattle and sheep 
 
 ever, it is said that beast gate in {e) See post, Lecture XII. 
 
 Suffolk imports few^ and common (/) See ante, pp. 21 — 30. 
 
 for one beast. (ff) 11 Exch. C54, affirmed on 
 
 appeal, 1 Hurls. & Nor. 923. 
 
 G 2
 
 84 TRESCRIPTIVE RIGHTS. 
 
 of the cattle gate owners depastured Bretherdale Bank 
 in common. A fritli man, as he was called, was 
 appointed by the cattle gate owners, whose duty it 
 was to take care that Bretherdale Bank was properly 
 stinted ; and he was rewarded for his trouble by the 
 cattle gate owners. The cattle gate owner, having a 
 house within the manor, had also a right to cut peat for 
 consumption in his house. The cattle gates were held 
 of the lord of the manor as customary estates of in- 
 heritance. They passed by customary deed, followed 
 by admittance at the next Lord's Court, or out of 
 Court by the steward of the manor. The lords of the 
 manor had always searched for, pursued and killed 
 grouse and other game at Bretherdale Bank, no other 
 person having claimed to do so, or having done so, 
 except by their licence. These facts were held to show 
 that the owners of the cattle gates had no interest in 
 this case in the soil. The term cattle gate in this case 
 was evidently applied to a mere right of pasturing, and 
 that not during the whole of the year ; and such a 
 right of exclusive pasture is, as we have already 
 seen (A), entirely consistent with the ownership and 
 possession of the soil of the land in the lord of the 
 manor, or any other person (/). 
 
 The members therefore of the original community or 
 vill, had arable lands, which they cultivated on a com- 
 mon system, pasture lands which they either divided or 
 allotted amongst themselves, or else depastured in com- 
 mon, and also rights of common on the adjacent and 
 uncultivated land, which constituted the mark in its 
 primary sense, out of which the arable and pasture were 
 anciently reclaimed, and from which they were divided. 
 In most cases, from one cause or another, this simple 
 
 (A) A)Uc, -p. 21. exchange of cattle-gates with the 
 
 (*) By stat. 9 & 10 Viet. c. 70, sanctiou of the Inclosure Com- 
 s. 11, provision is made for the niissioners.
 
 PRESCRIPTIVE RIGHTS. 85 
 
 state of things in time disappeared. The lords of the 
 manors obtained authority over the freeholders, who 
 became their tenants ; and the ancient system of com- 
 mon agriculture became converted into the system of 
 manors, consisting of lords and tenants, whose rights 
 are laid down in law books. There is however, or was 
 until the year 1854, a community still existing, having 
 laws of theii' own and self-government, with respect to 
 whom an attempt was made by the lord of a manor, of 
 which some of the tenements were held, to destroy their 
 custom and to bring the whole within his manorial 
 jurisdiction. But owing to the sturdy manner in which 
 the freeholders disputed his rights, his attempt failed, 
 and the lord himself was fain for some years to become 
 one of the officers of this little community. This com- 
 munity was established in the vill or township of Aston, 
 and the hamlet of Coate, in the parish of Bampton in 
 the county of Oxford ; and as many of the facts relating 
 to it are within my own knowledge, I propose to make 
 the little history of this village community the subject 
 of my next Lecture.
 
 86 PKESCRirXlVE RIGHTS. 
 
 LECTURE VII. 
 
 In my last Lecture I promised to give an account of a 
 vill or to^Ynsllip, whic]i retained its ancient customs 
 until a recent period, and the history of which is an 
 example of the manner in which rights belonging to 
 village communities have been attempted to be destroyed 
 by lords of manors, and often effectually ; though it 
 was not so in the present case. 
 
 The vill of The vill of Aston is situate in the parish of Bampton 
 
 hamlet^of ^^ ^^^ Bush in the county of Oxford; and adjoining to 
 Coate. it is the hamlet of Coate, Coat or Cote in the same 
 
 parish. There are within this township and hamlet 
 A hide. sixteen hides of land. A hide is a Saxon term, and is 
 
 supposed to comprise as much land as would serve for 
 the maintenance of a household. Each of these sixteen 
 Yard laud. hides of land was divided into four yard lands, also a 
 Saxon term ; so that there were within Aston and Coate 
 sixty-four yard lands; each of these yard lands had 
 a right of common on a large moor adjoining called 
 Coate Moor. Each yard land had a proportion of 
 arable land, which lay in the common fields belonging 
 to the community ; and to each yard land also belonged 
 a certain proportion of meadow or pasture. Of these 
 yard lands forty, or ten hides, belonged to the manor of 
 Aston Boges which remained for a long time in the 
 family of Horde. Other of the yard lands, about eight, 
 or two hides, were formerly parcel of the manor of 
 Shifford, a village adjacent, and were formerly held 
 of that manor by copy of com-t roll, but had been 
 enfranchised by the lord. Four yard lands, or one 
 hide, belonged to the manor of Bampton Deanery,
 
 THE VILL OF ASTOIV, OXON, 87 
 
 another manor also adjoining to Aston and wliicli 
 belonged to tlie Bishop of Exeter, The remaining 
 three hides were ancient freehold, not holden of the 
 manor of Aston Boges, nor paying rent to the lord 
 thereof, nor doing any snit to the Court there. It does 
 not appear clearly of whom these three hides were held, 
 but they were held apparently either of the manor of 
 Bampton next mentioned or directly from the Crown. 
 The hundred and manor of Bampton, which comprised 
 all these three several manors, was a superior lordship. 
 The manor of Aston Boges was held of the manor of 
 Bampton at the rent of a gilt sword and eighteen 
 pence yearly. 
 
 The customs of this little community of Aston and Customs of 
 Coate have been preserved in writing ; and you will find 
 them printed in the Archseologia (a) . They existed in 
 writing so long back as the year 1593, the 35th year of 
 the reign of Queen Elizabeth, when they were signed 
 by most of the substantial inhabitants of Aston and 
 Coate. They are as follows : — " 1. The custom is, that, 
 upon our Lady-day eve, every year, all the inhabitants 
 of Aston and Coat shall meet at Aston Cross, about 
 three of the clock in the afternoon, or one of every 
 house, to understand who shall serve for the sixteens 
 for that year coming, and to choose other officers for 
 the same year. 2. The said sixteens being known, the 
 hundred tenants of the same sixteens, do divide them- 
 selves some distance from the lord's tenants of the said 
 sixteens. And the hundred tenants do choose one 
 grass steward, and one water hayward ; and the lord's 
 tenants do choose two grass stewards and one water 
 hayward. 3. After the said ofiicers are chosen and 
 known, the said inhabitants do refer themselves to such 
 orders and pains for breaking the said orders as shall be 
 set down by the said sixteens or the major part of them 
 
 {a) Vol. 35, p. 472.
 
 PRESCRIPTIVE RIGHTS. 
 
 for that year, as well for the hayneing of the commons, 
 as for the breaking of the commons, or for any other 
 orders, which they conceive beneficial for the said in- 
 habitants of Aston and Coat. 4. The said sixteens 
 hath not any authority to make any orders or to set 
 any amercements touching the commons, except there 
 be do meet at the Cross nine of the said sixteens at the 
 time, and those nine may pin the rest of the sixteens. 
 The custom is that no team shall be in the Inn mead 
 after sunset to fetch away any hay or grass, upon pain 
 of two shillings every team so oif ending. 5. The 
 custom is, that if any of the inhabitants of Aston and 
 Coat aforesaid do fail to appear upon any Lady-eve, or 
 someone of every house for him, the parties making 
 default to forfeit and pay foui'pence. 6. If there be 
 any fault found by any of the inhabitants aforesaid, 
 contrary to the order made by the said sixteens or nine 
 of them, the same inhabitants or those that find the 
 fault may cause the stewards, or any of the said 
 stewards, to warn the sixteens to the Cross, to see some 
 redi'ess ; and if the said sixteens upon the same warn- 
 ing do not come at the time appointed, every one 
 making default to forfeit and pay fourpence. And it 
 is also lawful for the stewards and the body of the 
 town to pin the sixteens to pay fourpence for every 
 fault trespassed and approved as aforesaid. 7. The 
 ordinary days for the sixteens to meet without warning 
 are, on the Tuesday in Easter week, the "Wednesday in 
 the Rogation week or Cross week, the Wednesday in 
 the Whitsun week, and upon Lammas eve, and every 
 failing to forfeit fom'pence. 8. The custom is, that the 
 chief lord of Bampton Hundred shall have every year a 
 draught Avith a lawful net in the common water of 
 Aston and Coat and no more ; and if he draw his net 
 up he is not by the custom to put in his net again that 
 year. 9. Cricklet ham is yearly to pay for coming 
 over Beareheards Bridge sixpence ; the Gaily Acres in
 
 THE VILL OF ASTON, OXON. 89 
 
 Bosingay mead twelvepence. And every person tliat 
 hath meadow and no feeding must rid their hay by 
 Lammas eve at noon, or otherwise they cannot after 
 the same time carry away their hay, but it is to be 
 eaten by the cattle of the inhabitants of Aston and 
 Coat aforesaid. And at the laying out of Bosingay 
 mead, the occupiers of the Gaily acres are to bring 
 with them into the mead to the layers out, everyone of 
 them one gallon of ale and a loaf of bread. 10. The 
 sixteens are to set and remove their stones in the mead 
 of Aston and Coat as often as need shall require. 11. 
 After our Lady-eve that the whole town have met 
 together, and that they have referred all matters unto 
 the new sixteens' hands for that year, they are not to 
 meddle any further for that year than this ; that if 
 they find any fault with the new sixteens, that they do 
 not their office, then they are to tell them of such faidts 
 as they find; and if the said sixteens do not mend those 
 faults, then the said inhabitants and stewards may 
 pound them as above said, that is, to pay fom-pence for 
 every fault. 12. The custom is and hath been that the 
 said sixteens shall and may distrain for any forfeitures 
 made, if any shall refuse to pay upon demand." 
 
 You will observe that as the year then began on the 
 25th of March, the inhabitants met at Aston Cross on 
 the last day of the year, namely, on Lady-day eve, 
 which I apprehend to be the eve preceding Lady-day, 
 for the purpose of appointing sixteen persons as the 
 officers to manage the commons for the next year. 
 The number of persons, you will also observe, corre- 
 sponds to the number of hides in the township. There 
 were sixteen hides, and sixteen officers ; that is, an 
 officer for every hide. Each of these officers was fur- 
 nished with a small piece of wood about three inches 
 long with a mark cut thereon, by which to know the Marks, 
 portion of meadow over which he had the superinten-
 
 90 PRESCRIPTIVE RIGHTS. 
 
 dence for the coming year. You will see an account of 
 tliese little marks in the Archseologia (b) . A sketch of 
 them is given in the accompanying plate. 
 
 The mode in which the allotment of the common 
 meadows took place is thus described hy Doctor Griles in 
 his History of Bampton, as it is set out in the Archoeo- 
 Allotmcntof logia (c). "The common meadow is laid out by 
 meadows. boundary stones into IG large divisions technically 
 called 'layings-out.' These always remain the same, 
 and each laying-out in like manner is divided into four 
 pieces called ' sets,' first set, second set, third and fourth 
 set. Now, as the customs of Aston and Coat are based 
 upon the principles of justice and equity between all 
 the commoners, and the common meadow is not equally 
 fertile for grass in every part, it becomes desirable to 
 adopt some mode of giving all an equal chance of 
 obtaining the best cuts for their cattle. To effect this, 
 recourse is had> to the ballot, and the following mode is 
 practised. From time immemorial there have been 
 sixteen marks established in the village, each of which 
 corresponds with four yard lands; and the whole 
 sixteen consequently represent the 64 yard lands, into 
 which the common is divided. A certain number of 
 the tenants consequently have the same mark, which 
 they always keep, so that eA^ery one of them knows his 
 own. The use of these marks is to enable the tenants 
 every year to draw lots for their portion of the meadow. 
 When the grass is fit to cut, which will be at different 
 times in different years according to the season, the 
 grass-stewards and sixteens summon the tenants to a 
 general meeting, and the following ceremony takes 
 place. Four of the tenants come forward each bearing 
 his mark, cut on a piece of wood, as, for example, the 
 ' frying pan,' the ' herns foot,' the ' bow,' the ' two 
 
 {b) Vol. 37, pp. 383 ct seti. (c) Vol. 33, p. 275, uote. 
 
 Sec also vol. 35, p. 471.
 
 ASTON AND COATE. 
 
 t 
 
 OruzThMrart over HWoThi/irari: over Three Thwart over Tour Thvoj-t over 
 
 Three. irvM-icflvt 
 One,' ouh JLaa^H' 
 
 r\ 
 
 (Me uvBijqkt TwouvJh^ht Three-ViylU^hb Ttro irv Sx^TUz 
 
 One, ci<>J3ea<t 
 
 ©AT 
 
 The,Prieyt The Cranes Foot Ihe-JIeadle^s 
 
 + + 9 
 
 Tke3ow. The. Cross 
 
 Tke, Jieeb The Tee-L 
 
 MARKS USED BY THE SIXTEENS. 
 
 Zhfacefi. 90.
 
 THE VILL OF ASTON, OXON. 91 
 
 strokes to tlie riglit and one at head,' etc. These four 
 marks are thrown into a hat, and a boy, having shaken 
 up the hat, again draws forth the marks. The first 
 drawn entitles its owner to have his portion of the 
 common meadow in ' set one,' the second drawn in ' set 
 two,' etc., and thus four of the tenants having obtained 
 their allotments, four others come forwards, and the 
 same process is repeated until all the tenants have 
 received allotments. The most singular feature of this 
 very intricate system remains to be told. When the 
 lots are all drawn, each man goes armed with his 
 scythe, and cuts out his mark on the piece of ground 
 which belongs to him, and which in many cases lies in 
 so narrow a strip that he has not width enough to take 
 a full sweep with his scythe, but is obliged to hack down 
 his grass in an inconvenient manner as he is best able." 
 
 The " frying pan " spoken of above appears to be 
 the same mark as the peel. The duties of the grass- Duties of the 
 stewards were to see that the mounds and fences were ^e'^ardg 
 in good repair, and to secure the meadows from the 
 incursions of cattle, and also to provide at their joint 
 expense four two-year-old bulls every season to run on 
 the common pasture. At the end of the season they 
 sold them for their own benefit, and in the meantime 
 they had the privilege of claiming a fee of eighteen 
 pence for every cow that fed on the common during the 
 summer. "Within the meads of Coat and Aston there 
 were two great lot meads, one called Aston in mead, Lot meads. 
 and the other Aston out mead. Within these two 
 meadows were several hams or home closes of meadow, 
 viz., the Bull ham, the Hayward's ham, the Warden's Hams or 
 ham, the Wontner's ham, the Grass-steward's ham, the ^°™® ^^^^^^' 
 Water Hayward's ham, the Water Steward's ham, the 
 Homage ham, the Smith's ham, the Penny ham, the 
 Herd's ham, the Brander's ham, and the Constable's 
 ham — thirteen in all. These hams together were for-
 
 92 PRESCRIPTIVE RIGHTS. 
 
 merly of the value of 40/. per annum, and were disposed 
 of at the discretion of the sixteens; some to the officers 
 "whose name they bear, some to the puhlic use of the 
 town, as for the making of gates, bridges, &c., and some 
 were sokl to make ale for the merry meeting of the 
 inhabitants. There were also in Aston and Coat several 
 leys of green sward lying in the common fields, two 
 yea]*s mown and one fed, which were disposed of at the 
 discretion of the sixteens or officers. You will find an 
 account of the different officers for whose benefit these 
 hams were used in the Archa3ologia (d), with the use to 
 which these hams were appropriated in the year 1850, 
 shortly preceding the inclosure of these lands in 1854. 
 
 The lord's It appears, however, that in the year 1657, Mr. Horde 
 
 destroy this (the SOU of Sir Thomas Horde, knight) , who was the 
 custom. ^]j(,^ ]^Qp(j Qf i\^Q manor of Aston Boges, under a settle- 
 
 ment made by his father, desired to put an end to the 
 authority of the sixteens, and to reduce the government 
 of the town to the obedience of the courts of his manor. 
 And, in order to effectuate his purpose, he took cove- 
 nant of seven or eight of his tenants, to whom he had 
 then lately let several of his yard lands in Aston and 
 Coat, that they would wholly submit to the orders of 
 his court, and not agree to any of the sixteens' orders. 
 Mr. Horde, further conceiving that all the hams above 
 mentioned were parcel of the waste, and that the six- 
 teens had no warrantable custom to create a right in 
 them to the soil or inheritance of the said hams, and 
 that the officers chosen by the sixteens could be no 
 lawful officers, because not chosen or sworn at any lord's 
 court, did, about the year 1654, carry away the hay 
 growing on the said hams. And at a court holden by 
 the said Mr. Horde at Lady-day, 1657, several officers 
 were chosen and sworn, and the hams were there 
 granted to them, which they that year enjoyed accord- 
 {d) Vol. 33, p. 276.
 
 THE VILL OF ASTON, OXON. 93 
 
 ingly. But at Michaelmas, 1657, the sixteens, amongst 
 other officers, chose a hayward, who refused to be sworn 
 at the court held at Lady-day; whereupon the homage, 
 who were the greater number of the sixteens, chose 
 another hayward, who was there sworn into the said 
 office. But the new chosen hayward, being frightened 
 with the threats of Sir Thomas Horde — who does not 
 appear to have been on good terms with his son — re- 
 fused to execute his office, and the old hayward con- 
 tinued ; whereupon Mr. Horde took to himself the ham 
 called the Hayward's ham. The sixteens gave a horse 
 common to the hayward of their own choosing, which 
 had anciently been enjoyed by those that had the same 
 office. This horse common the hayward stocked ; where- 
 upon Mr. Horde impounded his horse, which lay in the 
 pound about a fortnight, and then broke out. 
 
 In consequence of these attempts on the part of Case for 
 Mr. Horde, a joint case appears to have been submitted slr^^^rido-. 
 on behalf, as well of Mr. Horde as lord, as of the free- n^'^^- 
 holders, copyholders, and leaseholders of Aston and 
 Coat, to Sir Orlando Bridgman and Mr. Jeffi-ey Palmer 
 on the 30th November, 1657. The first question they 
 put was this : — Who in reason may be thought the lord 
 and owner of the soil of the commons in Aston and 
 Coat, and of the lot meads there ? 
 
 The answer of Sir Orlando Bridgman was: — The soil 
 of the common is the lord's ; but of the lot meads, the 
 freeholders and others who have the lots. The opinion 
 of Mr. Palmer does not appear. 
 
 Another question was : — Query, whether the custom 
 of the sixteens, though used time out of mind, be a 
 sufficient authority to make orders, choose officers, &c., 
 and whether the officers chosen by them be lawful 
 officers ? 
 
 Bridgman : I conceive the custom is good, and the 
 officers lawful officers.
 
 94 PRESCRIPTIVE RIGHTS. 
 
 Query, whether the custom of the sixteens be not 
 destroyed, if Mr, Horde's-tenants, in pursuance of their 
 covenants, shall refuse to act with them ? 
 
 Bridgman : Their refusal doth not destroy the cus- 
 tom, but the rest may act without them ; and it may be 
 a better way for Mr. Horde to make use of his tenants 
 for elections, so having the majority of voices, rather 
 than invade the custom. 
 
 The next query is as follows : — The sixteens, being 
 no corporation, ciin have legal estate in the said hams 
 of meadow and lays of greensward, to dispose of the 
 same ; or, whether the officers, not being chosen at any 
 court, can have any estate therein, or whether they 
 belong not all to the lord of Aston as parcel of his 
 waste, wherein no other person can claim any particular 
 estate ; and whether any person whatsoever may main- 
 tain an action against Mr. Horde for taking away the 
 hay, and what is the best course for Mr. Horde to take 
 to try his right to them ; and, if Mr. Horde should 
 break up and sow the said lays in the fields, whether he 
 may not justify it, and carry away the corn thereof 
 growing, and who can bring any good action against 
 him for it ? 
 
 Bridgman : I do not conceive that Mr. Horde had 
 any right to the lays in the fields. If the custom be 
 good, as I take it to be, the same custom will give the 
 officers an interest as incident to their offices, and may 
 Warden of belong to an office, as in the case of the warden of the 
 Fleet (^). 
 
 Another query : If the custom of the sixteens should 
 
 [e) This refers to a passage in annexed to it, this may be given 
 
 the Year Book, 8 Hen. VII. 4 a, without livery of seisin. And so 
 
 where it is said, " It is a common of an officer, as the officer of the 
 
 principle that land shall not pass Fleet with land annexed to him, 
 
 without livery of seisin, and yet this will pass by the grant of the 
 
 in special cases it may well office without livery and seisin 
 
 enough, as in exchange between of the land." See also Co. Litt. 
 
 land and town which has land 49 a. 
 
 the Fleet '^
 
 THE VILL OF ASTON, OXON. 95 
 
 be destroyed, what course is there to be taken to bring 
 the to^vn in protection, either to Mr. Horde's courts, or 
 any- other power that may tend to the good government 
 and regulation of the town ? 
 
 Bridgman : I think the custom cannot be destroyed 
 by Mr. Horde alone without the consent of others ; nor 
 can he bring the matters to his court, which hath not 
 been used ; nor choose ofl&cers at his court touching the 
 commons. 
 
 Another query: Whether Mr. Horde may not justify 
 the taking away the hayward's ham last year, the first 
 hayward refusing to be sworn, and the other to execute 
 the office ? And whether the first hayward, or any 
 under him, can maintain a good action against Mr. Horde 
 for carrying away the hay of the ham ? 
 
 Bridgman : This is in part answered before ; the cus- 
 tom being good, Mr. Horde's justification will be bad. 
 
 Another query : Whether Mr. Horde may not bring 
 his action of trespass against the first hayward for stock- 
 ing the common with a horse, having broken out of the 
 pound, and no suit thereupon ? 
 
 Bridgman : I think he cannot causa qua supra. 
 
 Another query : Supposing the great mead to be a 
 movable inheritance by lot, cast by the sixteens ; if any 
 one do dissent from his lot, query he may not put in 
 his cattle as tenants in common notwithstanding the 
 lots? 
 
 Bridgman : He must take his lot according to custom ; 
 and as his right is maintained by usage, so is the manner 
 of it. 
 
 There were some other questions with respect to other 
 matters which I have not here mentioned. You will 
 find the case and opinion set out at length in the 
 Jurist (/). In pursuance of this opinion Mr. Horde, The lord sub- 
 the lord of the manor, wisely took Sir Orlando Bridff- ™^*f *° ^^^^ 
 
 "^ ° custom. 
 
 (/) ^ol- 12, part 2, N. S., p. -were 14 questions, and the fee 
 103. I have myself seen the marked thereon was lOs. 6d. 
 original case and opinion. There
 
 96 PRESCRIPTIVE RIGHTS. 
 
 man's advice, to make use of his tenants for elections, 
 having the majority of voices, rather than to invade the 
 custom. And in the year 1 668 he presented the town-' 
 ship with a hook called the Book of the 8ixteens, in the 
 commencement of which tlie customs were inscribed, 
 the old customary of 1593 being first copied out. And 
 in the same year Mr. Horde, as lord of the manor of 
 Aston and Coat, saving to himself and his heirs all and 
 every the privileges and rights that belonged to them 
 as lords of the manor, did with the sixteens, and the 
 rest of the inhabitants and landholders of Aston and 
 Coat, subscribe their hands in this book for the further 
 ratifying and confirming of this above said ancient 
 custom. The book then contains an account of the six- 
 teen hides of land, opposite to each of which is placed 
 its peculiar mark, and above is written: " In the manor 
 of Aston and Coat are sixty-four yard of meadow, four 
 yard is a hide, and of every hide or four yard there 
 belongs a mark or lot for every man to find out his 
 mead by." Then follow a list of all the landholders 
 and the number of cattle which they had a right to put 
 upon the commoli. It appears that, by the custom of 
 the place, every yard land had a right to put on twelve 
 beasts and forty sheep, and so in proportion. There 
 then comes a yearly record of the names of the sixteens, 
 and of the lot or mark appropriated to each. And in 
 the year 1666 we find Thomas Horde, Esq., as a sixteen 
 in respect of two lots, no doubt in consequence of the 
 importance of his position as lord of the manor. In 
 1668 he appears as a sixteen for one lot only. So in 
 1669. In 1670 he is sixteen for two lots, and 1671 for 
 three lots. The custom, thus fortified by the opinion 
 of Sir Orlando Bridgman, continued in full operation 
 until the year 1854, when the lands were inclosed under 
 the provisions of an Act for the inclosure of lands in 
 Bampton in Oxfordshii-e and Shilton in Berks {g). 
 
 [g] Stat. 16 & 17 Vict. c. 3. one reference to the customs of 
 The reader will find more than this little commiinitv in the
 
 THE VILL OF ASTON, OXON. 97 
 
 It may be interesting to compare this account of a 
 village community in England with the accounts given 
 by Sir Henry Maine in his Lectures on Yillage Com- Sii- H. Maine 
 munities in the East. He says (A), " It does not appear Commumties. 
 to me a hazardous proposition that the Indian and the Lecture IV. 
 ancient European systems of enjoyment and tillage, by 
 men grouped in village communities, are in all essential 
 particulars identical. There are differences of detail 
 between them ; and I think you will find the discussion 
 of these differences and of their apparent causes not 
 uninteresting nor barren of instruction to the student of 
 jurisprudence." 
 
 Again (/), "If very general language were employed, 
 the description of the Teutonic or Scandinavian village 
 communities might actually serve as a description of the 
 same institution in India. There is the arable mark, 
 divided into separate lots, but cultivated according to 
 miuLite customary rules, binding on all. Wherever the 
 climate admits of the finer grass crops, there are the 
 reserved meadows, lying generally on the verge of the 
 arable mark. There is the waste or common land, out 
 of which the arable mark has been cut, enjoyed as 
 pasture by all the community 2^^'(> iiidiinso. There is 
 the village, consisting of habitations, each ruled by 
 a despotic paterfamilias. And there is constantly a 
 council of government to determine disputes as to 
 custom. But there are some characteristics of the 
 institution, of which no traces, or very faint traces, 
 remain in Europe, though they probably once existed, 
 and there are some differences between the Em"opean 
 and Indian examples. Identity in the main being 
 
 valuable essay of Professor E. lated into English by Col. H. A. 
 
 Nasse of the imiversity of Bonn Ouvry and is published by the 
 
 on the Agricultural Community Cobden Club. 
 
 of the Middle Ages and Inclosures (/;) Lecture IV. p. 103. 
 
 of the Sixteenth Century in (i) Page 107. 
 
 England, which has been trans- 
 
 W.P. H
 
 98 PRESCRIPTIVE RIGHTS. 
 
 assumed, a good deal of instruction may bo obtained 
 from these distinctions of detail. First, as to the arable 
 mark or cultivated portion of the village domain. 
 Here you will naturally expect the resemblance to be 
 general rather than specific. The official publications 
 on Indian Settlement law, contain evidence that, in 
 some parts of the country, the division into three 
 common fields is to be found ; but I do not attach any 
 importance to the fact, which is probably quite acci- 
 dental. The conditions of agriculture in a tropical 
 country are so widely different from those which can at 
 any period be supposed to have determined cultivation 
 in Northern and Central Europe, as to forbid us to look 
 for any resemblances in India, at once widely extended 
 and exact, to the Teutonic three-field system. Indeed, 
 as the great agent of production in a tropical country is 
 water, very great dissimilarities in modes of cultivation 
 are produced within India itself by relative proximity 
 to running streams and relative exposure to the periodi- 
 cal rain-fall. The true analogy between the existing 
 Indian and the ancient European systems of tillage 
 must be sought in the minute but multifarious rules 
 governing the proceedings of the cultivators, rules which 
 in both cases have the same object — to reconcile a 
 common plan and order of cultivation on the part of 
 the whole brotherhood with the holding of distinct lots 
 in the arable land by separate families. The common 
 life of the group or community has been so far broken 
 up as to admit of private property in cultivated land, 
 but not so far as to allow departure from a joint system 
 of cultivating that land." Further on (k), "I now pass 
 to the village itself, the cluster of homesteads inhabited 
 by the members of the community. The description 
 given by Maurer of the Teutonic mark of the township, 
 as his researches have shown it to him, might here 
 again pass for an account, so far as it goes, of an Indian 
 (/•) Page 113.
 
 THE TILL OF ASTON, OXON. 99 
 
 village. The separate bouseliolds, eacb. despotically 
 governed by its family chief, and never trespassed upon 
 by the footstep of any person of different blood, are all 
 to be found there in practice ; although the theory of 
 the absolute rights of heads of families has never from 
 the nature of the case been acknowledged by the 
 British government. But the Indian villages have one 
 characteristic which could only have been gathered 
 from observation of a living society. The Grerman 
 writers have been struck with that complete immunity 
 of the Teutonic homestead from all external inter- 
 ference, which in this country found a later expression 
 in the long-descended commonplace, that an English- 
 man's house is his castle. But a characteristic which in 
 India goes along with this immunity, and to a great 
 extent explains it, is the extraordinary secrecy of family 
 life ; a secrecy maintained, I am told, in very humble 
 households, and under difficulties which at first sight 
 would seem insurmountable. There can be no question 
 that if the isolation of households in ancient societies was 
 always accompanied by this secrecy of their interior 
 life, much which is not quite intelligible in early legal 
 history would be explained." 
 
 Again (/), " The waste or common land of the village 
 community has still to be considered. One point of 
 difference between the view taken of it in the East and 
 that which seems at all times to have been taken in 
 Europe deserves to be especially noted. The members 
 of the Teutonic community appear to have valued the 
 village waste chiefly as pasture for their cattle, and 
 possibly may have found it so profitable for this purpose 
 as to have deliberately refrained from increasing that 
 cultivated portion of it, which had been turned into the 
 arable mark. These rights of pasture vested in the 
 commoners are those, I need scarcely tell you, which 
 
 {I) Page 120. 
 H 2
 
 100 PRESCRIPTIVE RIGHTS. 
 
 have descended but little modified to our own day in 
 our own country ; and it is only the modern improve- 
 ments in the methods of agriculture which have dis- 
 turbed the balance between pasture and tillage, and 
 have thus tended to multiply Inclosure Acts. But the 
 vast bulk of the natives of India are a grain and not a 
 flesh eating people. Cattle are mostly regarded by 
 them as auxiliary to tillage. The view therefore 
 generally taken, as I am told, of the common land by 
 the community is that it is that part of the village domain 
 which is temporarily uncultivated, but which will some 
 time or other be cultivated, and merge in the arable 
 mark. Doubtless it is valued for pasture, but it is more 
 especially valued as potentially capable of tillage. The 
 effect is to produce in the community a much stronger 
 sense of property in common land than at all reflects 
 the vaguer feeling of common which in England at all 
 events characterises the commoners." 
 
 Again (>;?), " India has nothing answering to the 
 assembly of adidt males, which is so remarkable a 
 feature of the ancient Teutonic groups, except the 
 council of village elders. It is not universally found. 
 Yillages frequently occur in which the affairs of the 
 community are managed, its customs interpreted, and 
 the disputes of its members decided by a single head- 
 man, whose office is sometimes admittedly hereditary, 
 but is sometimes described as elective ; the choice being 
 generally however in the last case confined in practice 
 to the members of one particular family, with a strong 
 preference for the eldest male of the kindred, if he be 
 not specially disqualified. But I have good authority 
 for saying that in those parts of India in which the 
 village community is most perfect, and in which there 
 are the clearest signs of an original proprietary equality, 
 between all the families composing the group, the 
 (ill) Pa^e 122.
 
 THE VILL OF ASTOX, OXON. 101 
 
 autliority exercised elsewhere by the headman is lodged 
 with the village council." 
 
 Again (ii), "There is yet another feature of the Indian 
 cidtivating groups which connects them with primitive 
 western communities of the same kind. I have several 
 times spoken of them as organized and self-acting. 
 They, in fact, include a nearly complete establishment 
 of occupations and trades for enabling them to continue 
 their collective life without assistance from any person 
 or body external to them. Besides the headman or 
 council, exercising quasi- judicial, quasi-legislative power, 
 they contain a village police, now recognized and paid 
 in certain provinces by the British Government. They 
 include several families of hereditary traders, — the black- 
 smith, the harness maker, the shoemaker. The Brahmin 
 is also found for the performance of ceremonies; and 
 even the dancing girl for attendance at festivities. 
 There is invariably a village accountant, an important 
 personage among an unlettered population ; so im- 
 portant indeed, and so conspicuous, that, according to 
 reports cmTent in India, the earliest English func- 
 tionaries engaged in settlements of land were occasion- 
 ally led by their assumption that there must be a single 
 proprietor somewhere, to mistake the accountant for the 
 owner of the village, and to record him as such in the 
 official register. But the person practising any one of 
 these hereditary employments is really a servant of the 
 community, as well as one of its component members. 
 He is sometimes paid by an allowance in grain, — more 
 generally by the allotment to his family of a piece of 
 cultivated land in hereditary possession. Whatever else 
 he may demand for the v/ares he produces, is limited 
 by a customary standard of price very rarely departed 
 from. It is the assignment of a definite lot in the 
 cultivated area to particular trades, which allows us to 
 
 («) Page 125.
 
 102 PRESCRIPTIVE RIGHTS. 
 
 suspect that tlie early Teutonic groups were similarly 
 self-sufficing. There are several English parishes in 
 which certain pieces of land in the common field have 
 from time immemorial been known by the name of a 
 particular trade ; and there is often a popular belief 
 that nobody not foUov/ing the trade can legally be 
 owner of the lot associated with it. And it is possible 
 that we here have a key to the plentifulness and per- 
 sistence of certain names of trades as surnames amongst 
 us." 
 
 Customs as to You wiU observe the remarkable similarity of the 
 custom as to particular trades thus described with the 
 names of the different persons to whom hams, or pieces 
 of inclosed pasture land, were allotted in the township 
 of Aston. There is the hay ward who looks after the 
 hedges ; the warden, who seems to have been the church- 
 warden; the wontner, or mole catcher; the grass steward, 
 who looked after the meadows; the water hay ward, who 
 looked after the meadows near the water; the water 
 steward, who regulated the fisheries. The homage cer- 
 tainly were not any particular trade, but were the 
 tenants of the manor. But the smith was a tradesman 
 of great importance, and had a ham to himself ; so was 
 the cowherd, who looked after the cattle on the com- 
 mon ; so also was the constable, who had a ham to him- 
 self. Brander, I should think, was probably the person 
 by whom the cattle turned out were branded with the 
 name of their owners. However that may be, one sees 
 the traces of a self-supporting village community, carried 
 down to a very recent date, and remarkably coinciding 
 with the state of things existing amongst village com- 
 munities in India ; for a knowledge of whose customs 
 we are indebted to the valuable Lectures of Sir Henry 
 Maine.
 
 103 ) 
 
 LECTURE VIII. 
 
 We have now considered both the nature and origin of 
 the right of common appendant, which belongs of com- 
 mon right to every owner of land which was anciently 
 arable ; and though originally the waste, on which the 
 right was exercised, was undefined, yet gradually it has 
 become limited, in ordinary cases, to the waste of the 
 manor of which the tenement is held ; though in some 
 cases such a right still exists over wastes, which are not 
 the property of the lord of the manor, of which the 
 tenement is held. And this appears to me to come out 
 very plainly, when we consider the two statutes, to 
 which I am now about to call your attention, — namely, 
 the Statute of Merton (a), and the statutes by which it 
 has been explained and its operation enlarged, — namely, 
 the Statutes of "Westminster 2nd {h), and the statute 
 3 & 4 Edw. VI. c. 3. The Statute of Merton is as Statute of 
 follows : — " Also because many great men of England 
 (which have enfeoffed knights and their freeholders of 
 small tenements in their great manors) have complained 
 that they cannot make their profit of the residue of their 
 manors, as of wastes, woods, and pastures, whereas the 
 same feoffees have sufficient pasture, as much as be- 
 longeth to their tenements, it is provided and granted 
 that whenever such feoffees do bring an assise of novel 
 disseisin for their common of pasture, and it is know- 
 ledged before the justices that they have as much pas- 
 ture as sufficeth to their tenements, and that they have 
 free egress and regress from their tenement unto the 
 pasture, then let them be contented therewith; and 
 they on whom it was complained shall go quit of as 
 
 {a) Stat. 20 Hen. III. c. 4. {b) Stat. 13 Edw. I. c. 4G.
 
 104 PRESCRIPTIVE RIGHTS. 
 
 much as tliey liave made their profit of their lands, 
 wastes, woods, and pastures; and if they allege that 
 they have not sufficient pasture, or sufiicient ingress 
 and egress according to their hold, then let the truth be 
 inquired by assise ; and if it be found by assise that the 
 same deforceors have disturbed them of their ingress 
 and egress, or that they had not sufficient pasture (as 
 before is said), then shall they recover their seisin by 
 view of the inquest, so that, by their discretion and 
 oath, the plaintiffs shall have sufficient ingress and 
 egress in form aforesaid ; and the disseisors shall be 
 amerced, and sliall yield damages as they were wont 
 before this provision. And if it be certified by the 
 assise that the plaintiffs have sufficient pasture, with 
 ingress and egress as before is said, let the other make 
 their profit of the residue, and go quit of that assise." 
 
 Coke's state- On this statute Lord Coke makes the following corn- 
 lord could not i^ei^^ {c)' " Hereby it appeareth that the lord could not 
 approve by approve by the order of the common law, because the 
 
 the common . t i p n i i , t c 
 
 law. common issued out oi trie whole waste and oi every 
 
 part thereof; and yet see Trinity Term 6 Hen. III., 
 
 where the lord approved two acres, and left sufficient, 
 
 the tenant brought an assise, and, the special matter 
 
 Whether being fouucl, the plaintiff retraxit sc^ However, in the 
 
 is contiva-™^'^* notes to the explanatory Statute of "Westminster the 
 
 dieted by 2nd, Lord Coke has the following, which does not seem 
 
 to agree with his Commentary on the Statute of 
 
 Merton. His note is {d) : " Note. — It is not said that 
 
 the lord could not improve against a neighbour, but 
 
 that the lords were letted by the contradiction of the 
 
 neighbours ; for by the common law the lord might 
 
 improve against any that had common appendant, but 
 
 not against a commoner by grant." I do not know 
 
 that these two remarks involve a real contradiction. 
 
 (c) Second Institute, part I, {d) Second Institute, part 2, 
 
 p. 85. p. 474.
 
 STATUTE OF MERTON. 105 
 
 My impression is that they refer to two different 
 matters. Where a lord in ancient times granted out 
 a freehold tenement to be held of himself, he also 
 granted, as a matter of coiu'se, a right for the tenant to 
 depasture his cattle on the wastes of his manor. Having 
 granted such right, he could not afterwards derogate 
 from his own grant, by inclosing any part of the waste, 
 without the consent of his tenant. But, from what I 
 have already said in previous Lectures, you will see 
 that, in many cases, there was a right of common, 
 belonging to a freehold tenement, over wastes which 
 were not the wastes of the lord of the manor of 
 which the tenement was held, but wastes belonging to 
 some neighbouring lord. As against such common as 
 this, I understand Lord Coke to say, in his note to the 
 Statute of Westminster the 2nd, that the owner of the 
 soil might inclose or improve by the common law, so that 
 he left the commoner sufficiency of pasture. It does 
 not appear to me likely that Lord Coke would have 
 directly contradicted himself in his commentaries on 
 these two statiites. And when we come to consider the 
 wording of the Statute of Westminster the 2nd, I think 
 the view which I have just taken will be confirmed by 
 the language of that statute. As between the lord and 
 tenant. Lord Coke distinctly says that, by the order of 
 the common law, the lord could not approve, because 
 the common issued out of the whole waste ; and the 
 fact which he mentions, that the tenant who brought an 
 assise against his lord, who approved two acres and left 
 sufficient, discontinued his suit, on it being found that 
 sufficient common was left for him, does not to my 
 mind alter the case ; as it is very probable that the 
 tenant, having sufficient common, did not think it 
 worth his while to insist upon a right which could give 
 him no practical benefit. 
 
 The statute, you will observe, relates only to lords or
 
 106 
 
 TKESCKIPTIVE rvlGIITS. 
 
 Those who 
 comphiiued 
 were those 
 who had 
 made sub- 
 infeudations. 
 
 Bracton. 
 
 great men, wliicli have enfeoffed knights and their 
 freeholders — viiUtes d alios lihere tcnentes, which strictly 
 means knights and others holding freely. For you 
 must remember that this statute was passed before the 
 passing of the Statute of Quia cmi^torcs (c) ; and that 
 when this statute was passed, the usual method of aliena- 
 tion was by subinfeudation, or a grant to the alienee 
 and his heirs, to hold freely of the grantor and his 
 heirs. When, therefore, the Statute of Merton was 
 passed, there must have been numerous very recent 
 feoffments made by great lords to their inferior tenants. 
 This indeed is shown by the words of the statute, 
 which are " because many great men of England, who 
 have enfeoffed knights and others holding freely, com- 
 plained, &c." Those who complained appear, according 
 to the letter of the statute, to be the very persons who 
 made the feoffments. The Treatise of Bracton, who 
 wrote in the reign of Hen. III., after the j)assing of the 
 Statute of Merton, and before the passing of the Statute 
 of Westminster the 2nd. which explained and enlarged 
 it, throws light upon this matter. Bracton says, speak- 
 ing of this statute (./'), "But if they, that is, the com- 
 moners, were his own tenants, then it is to be considered 
 in what way they Avere enfeoffed ; because neither all 
 the tenants, nor in all things, are they restrained by 
 the statute. Therefore, it is to be seen whether they 
 were enfeoffed generally, namely, over the whole, 
 everywhere and in all places, and for all manner of 
 beasts, and without number, and so that common of 
 this kind belongs to them by reason of a feoffment, 
 and not on account of user, such persons the aforesaid 
 statute does not bind ; because it does not take away 
 a feoffment, although it takes away an abuse, chiefly on 
 account of the voluntary consent of those who granted 
 
 (e) Stat. 18 Edw. I. c. 1. See 
 Lectures on the Seisin of the Free- 
 hold, p. 21. 
 
 (/) Bracton, Book 4, ch. 38, 
 par. 17, p. 228.
 
 STATUTE OF MERTOX. 107 
 
 the servitude and the common ; but if the common was 
 stinted with a certain and determinate number of beasts, 
 although the user had been larger and wider than was 
 necessary, such commoners the statute binds ; so that 
 they may be restrained to a certain place and within 
 a certain place : provided always that that place should 
 be sufficient and competent, with free and competent 
 ingress and egress, so that it may not be troublesome 
 or difficult ; but the place ought to be competent, so 
 that it should not be a long distance, but should be 
 assigned nearer. So, in the same manner, if any one 
 should be so enfeoffed, without the expression of number 
 or kind of beasts, but with pasture as much as belongs 
 to such a tenement in the same town, such a person the 
 statute binds, as before when the number is expressed, 
 because, when you have arrived at the quantity of the 
 tenement, it may easily be calculated as to the number 
 of the beasts, and also as to the kind, according to the 
 custom of the places." It seems, therefore, according 
 to Bracton, that the statute binds all those who have 
 common by reason of use, a very large class, and also 
 those to whom common was granted for their beasts 
 levant and couchant on their tenements, which you 
 may remember is the measure of the number of cattle 
 the tenement may put on [g), and also those who have 
 common stinted or restricted to a certain number of 
 cattle. But beyond this the statute did not extend. 
 There are contradictory dicta in modern times as to Whether the 
 whether or not the Statute of Merton was in affirmance Merton was 
 of the common law ; and Lord Coke himself is elsewhere ^^ affirmance 
 stated to have said that such was the case, particularly common law. 
 in a case of Procter v. MaUorie in the Star Chamber (J)). Procter \. 
 In this case, however. Lord Coke is reported even to 
 have said that it seems, where men have common in 
 gross of a certain number of beasts, the lord may 
 approve leaving sufficient for them. A dictum which 
 (y) Ante, p. 31. [It) 1 Rolle's Eep. 365. 
 
 Malloric.
 
 108 rRESCRIPTIVE IIIGHTS. 
 
 the reporter very properly queries, for, as lie remarks, 
 tlie Statute of Westminster 2nd appears to the contrary, 
 as it certainly is. As far as I can judge, the truth of 
 the matter is this, — that so far as the statute enabled 
 lords, who had granted the usual common appendant 
 over their wastes, to derogate from their grants by 
 inclosing a portion of the waste, so far the statute 
 gave a new authority, which the lord had not before. 
 But so far as the statute extended to common acquired 
 merely by user, and of which, as we have seen, there 
 must have been a large quantity in those days, so far 
 very probably at common law the lord had a power to 
 improve by inclosure, provided he left sufficiency for the 
 commoners. 
 
 The lords then complained that, after they had made 
 these feoffments, they could not make their profit of the 
 residue of their manor, as their wastes, woods and 
 pastures, although their feoffees had sufficient pasture. 
 And Lord Coke explains (/) that, when a lord of a 
 manor, wherein was great waste grounds, did enfeoff 
 others of some parcels of arable land, the feoffees had 
 common in the waste of the lord, as incident to the 
 feoffment. Then on the words, that they could not 
 make their profit of the residue of their manors. Lord 
 Coke observes (/>•), "Now it is to be seen how this 
 approvement must be. And it must be divided by 
 
 Inclosm-e of some iuclosure or defence, as it may be made several ; 
 
 part ap- ^^^, -^ ^^ lawful to the tenant to put on his cattle into 
 
 the residue of the common; and if they stray into that 
 part whereof the approvement is made, in default of 
 inclosure, he is no trespasser. And if the lord make a 
 feoffment of certain acres, the feoffee may inclose, 
 because the feoffment is an approvement in his nature," 
 On the words, " let them be contented therewith, and 
 
 (i) Second Institute, part 1, (/) Second Institiite, part 1, 
 
 p. 85. p. 86,
 
 STATUTE OF MERTON. 109 
 
 they on whom it was complained shall go quit of as 
 much as they have made their profit of their lands, 
 wastes, woods and pastures," Lord Coke remarks (/), ' 
 " By the approvement of part, according to this statute. Approved 
 that part by this Act is discharged of the common, inso- charg-ed of 
 much as, if the tenant, which hath the common, pur- "^^T.^^"^ 
 chase that part, his common is not extinguished in the 
 residue. If the lord do make an approvement he may Lord may 
 improve again, as often as he will, so he leave sufficient tmie lo^tim™ 
 common." And, " If the tenant at the time of the 
 approvement have sufficient common left unto him in 
 the residue, with a competent way thereunto according 
 to this Act, and after the residue becometh not suffi- Approvement 
 cient, yet the approvement remaineth good, for the residue after- 
 words of the statute are, that they should have so much ^',^^'^^ msuffi- 
 
 . cient. 
 
 pasture as is sufficient to then' tenement. ' And 
 again (?«), " If the lord doth inclose any part, and leave If common 
 not sufficient common in the residue, the commoner cominoner 
 may break down the whole inclosure, because it standeth "^''^y treak 
 
 . 1 1 1 • 1 • 1 • 5 5 down inclo- 
 
 upon the ground which is his common. sm-e. 
 
 This statute, however, was confined to cases between 
 the lord and tenant, and did not extend to cases in 
 which common, belonging to a tenement held of one 
 lord, was exercised over waste belonging to another 
 lord ; as must frequently have been the case, if our 
 view of the origin of common appendant is correct. In 
 order, therefore, to remedy a doubt, which the Statute 
 of Merton appears to have caused, as to whether the 
 owner of a waste might approve or inclose against 
 persons having rights of common there who were not 
 his tenants, the Statute of Westminster the 2nd was 
 passed {n) . This statute appears to me to contain a Statute of 
 very distinct implication that, at that time, it was the 2nd^^*^'^ 
 
 {!) Second Institute, part 1, {ni) Second Institute, part 1, 
 
 p. 87. p. 88. 
 
 (ii) Stat. 13 Edw. I. c. 40.
 
 110 PRESCRIPTIVE RIGHTS. 
 
 considered that a person might have common of pasture 
 of common right in waste ground, which was not the 
 soil and freehold of the lord of the manor of whom he 
 held his tenement. And if this he so, it seems to me 
 an additional confirmation of the view that common 
 appendant was not generally of manorial origin. This 
 statute refers to the Statute of Merton (o), by which 
 statute, as we have seen, lords of wastes were empowered 
 to approve or inclose for cultivation part of such wastes, 
 notwithstanding the contradiction of their tenants, pro- 
 ^'ided that the tenants had sufficient pasture to their 
 tenements, with free egress and regress to the same. 
 And the statute then recites, " forasmuch as no mention 
 was made between neighbom^s and neighbour's, many 
 lords of wastes, woods and pastures have been hindered 
 heretofore by the contradiction of neighbours having 
 sufficient pasture ; and, because foreign tenants have no 
 more right to common in the wastes, woods or pastm^es 
 of any lord than the lord's own tenants ; it is ordained 
 that the Statute of Merton provided between the lord 
 and his tenants, from henceforth shall hold place 
 between lords of wastes, woods and pastures and their 
 neighbom's, saving sufficient pasture to their tenants 
 and neighbours, so that the lords of such wastes, woods 
 and pastures may make approvement of the residue." 
 "And this," the statute goes on, " shall be observed by 
 them who claim pasture as belonging to their tenement. 
 But if any person claim common of pasture by special 
 feoffment or grant for a certain number of beasts, or 
 ofhenriae than of common right he ought to hare, since 
 covenant derogates from the law, he shall have his 
 recovery as he ought to have by form of the grant 
 made to him"(7j). 
 
 (o) Stat. 20 Hen. III. c. 4. siiimi. Sed si quis ckmat com- 
 
 [j)) " Et hoc observetur de his muniampasturfeperspecialefcof- 
 
 qui clamant pastnram tanquam famentum vel concessionem ad 
 
 pcrtinentem ad tcnementum certum numei-iun averiorum, vel
 
 STATUTE OF MERTOX. Ill 
 
 Here you will observe that the statute was passed in MLstransla- 
 order to enable the owner of waste lands to approve or statute o/ 
 inclose part of such land, notwithstanding that his Westminster 
 neighbour had a right of common of pasture thereon. 
 But the statute was not to extend to any one who had a 
 special feoffment or grant, or who claimed common of 
 pasture, othcncisc than of common rUjht he ought to have ; 
 evidently implying that a neighbour might, of common 
 right, claim common of pasture in the land of his 
 neighbom*. I do not remember to have seen, the 
 language of this statute, which always seemed to me to 
 bo remarkable, commented u]3on before; and you will 
 find that, in the ordinary copies of the statute, and also 
 in Lord Coke's Second Institute {q), where the statute and 
 translation of it are set out at length, this part of tlie 
 statute is mistranslated. The passage there runs in this 
 form, " But if any do claim common by special feoff- 
 ment or grant for a certain number of beasts, or other- 
 wise, which he ought to have of common right, whereas 
 covenant barreth the law, he shall have such recovery as 
 he ought to have had by form of the grant made unto 
 him." The words of the original are "vel alio 
 modo quam de jin-e communi habere" cleberet," which 
 certainly mean " or otherwise than of common right he 
 ought to have." And you will find in a subsequent 
 statute, in which this statute is recited, that portion of 
 it to which I have just referred, is translated in the 
 recital in the way I have translated it. The statute is Stat. 3 & 4 
 the 3 e^ 4 Edw. YI. c. 3, s. 2, by which the Statute ^^'^^i'- 
 of Merton and this Statute of Westminster the 2nd were 
 confirmed, saving only certain small encroachments 
 which had then already been made, and which were 
 not to be affected by such confirmation. If a man 
 might have, of common right, common appendant to 
 
 alio modo quam de jure commiuii perare, quale habere deberet j)er 
 habere deberet, cum conventio formam concessionis sibi factae." 
 leg'i deroget, habeat suum recu- {q) Part 2, p. 473.
 
 112 PRESCRIPTIVE RIGHTS. 
 
 his tenement, in lands not belonging to the lord of 
 whom his tenement was held, it would be a strong 
 circumstance to show, that there must have been some 
 origin of the ordinary right of common appendant to 
 lands, prior to the time when vills and to^\aiships were 
 granted out to lords of manors. 
 
 With regard to neighbours, Bracton, writing after the 
 
 passing of the Statute of Merton but before the passing 
 
 of the Statute of "Westminster the 2nd, has the fol- 
 
 Bractou's re- lowing remarks (>•), " If the commoner is a stranger, the 
 
 marks on the / j. j. i j. • i i • i i 
 
 operation of Statute Qoes uot imposc any law upon him, because he 
 the statute of j^^g fhe Servitude perhaps by consent and agreement, 
 
 Merton as to i • i i t i i n n 
 
 neighbours, everywhere, which cannot be dissolved but by a contrary 
 will and dissent, also because he has not been enfeoffed 
 by the lord of the soil, so as to allow his being re- 
 strained to a number certain and determinate, ac- 
 cording to the quantity of his tenement ; and hence, in 
 this case, if the lord of the soil and property wishes to 
 appropriate any part to himself and inclose it, this he 
 cannot do without the will and license of the aforesaid 
 commoners ; afid if he should do it, they can recover by 
 assise." Here you will observe that Bracton, speaking 
 of neighbours, merely says that they are not bound by 
 the Statute of Merton ; and he says that the right on 
 another man's land may have been granted by consent 
 and agreement, and the commoner has not been en- 
 feoffed with the right to put on any certain and deter- 
 minate number. Bracton leaves unnoticed the case in 
 which the neighbom-'s right of common may have been 
 acquired by user. He was commenting only on the 
 Statute of Merton, and had no occasion to notice this 
 case. This case, however, would appear to have fre- 
 quently occurred, and I take it that it was the frequency 
 of the occuiTence of such cases which gave occasion for 
 the passing of the Statute of Westminster the 2nd. 
 (r) Bracton, Book 4, ch. 38, par. 17, p. 228.
 
 STATUTE OF MERTON. ' 113 
 
 Lord Coke says (s) tliat, against common thus acquired 
 by use, and not by grant, the lord might have inclosed 
 at common law. And I see no reason to take any 
 exception to this statement. 
 
 There is a case of Glover v. Lane (/), in which it was Glover x. 
 held that the owner of a waste, in which his neighbours ^'"^' 
 
 11 • 1 J T , 1 r< , , . n TTT Owner of soil 
 
 Jiad common, might approve under the Statute of West- may approvo, 
 
 minster the 2nd, although he was not lord of any manor. 
 
 The act extends to every owner of the soil over which his 
 
 neighbours have rights of common. And in the case of 
 
 Patrick V. Stuhhs (u), it was said by Baron Rolfe that 
 
 " the Statute of Merton says nothing as to the natiu-e or The statute is 
 
 extent of the interest that the lord is to have in the the'^oxtent^of 
 
 soil ; and it must be quite indifferent to the commoner, ^^^ lord's 
 
 if enough common of pasture is left to him, whether 
 
 the lord of the manor inclose in his own right or as the 
 
 grantee of another." 
 
 To proceed with om^ statute : Lord Coke remarks {.r) 
 on the words " this shall be observed by them who 
 claim pasture as belonging to their tenements," that 
 " here it is to be observed that neither this statute nor 
 the Statute of Merton doth extend to any common but 
 to common appendant or appurtenant to his tenement. Statutes do 
 and not to a common in gross to a certain number." commonlJ*'* 
 The statutes, however, extend to common appurtenant, gross. 
 This was distinctly decided by the Court of Appeal in Extend to 
 the recent case of Rohinson v. The Maharajah Duleep ""^Xnant^' 
 8i)igh (//) . " What follows," says Lord Justice Cotton (s), 
 "is in effect this, that if a man produces his grant 
 wliich says that he shall have a grant, not only of 
 
 (.s) Second Institute, part 2, (.r) Second Institute, part 2, 
 
 p. 474. p. 475. 
 
 (0 3T. Rep. 445. (y) 27 W. R. 21; L. R., 11 
 
 («) 9 Mee. & Wels. 838. Ch. D. 798. 
 
 {z) L. R., 11 Ch. D. 822. 
 
 W.P, I
 
 114 PKESCRIPTIVE RIGHTS. 
 
 sufficient pasture for his cattle — whicli I suppose would 
 be the presumed grant — but pasture for a certain 
 number of cattle over all and every part of certain 
 waste, then the statute is not to enable a man to dero- 
 gate from that which has been expressly granted. Here 
 there is no express grant the terms of which the de- 
 fendant is violating, but it is said that this is a right 
 which is prescribed for and depends on a presumed 
 grant, and therefore the defendant cannot avail himself 
 of the Statute of Merton, because the Statute of West- 
 minster the Second prevents him from doing so. In my 
 oj)inion that is a mis-construction of the statute, which 
 giving the right, or recognizing the right, as existing as 
 against such as claim pasturage as appurtenant to their 
 tenements — that is, by presumed grant — says that it 
 shall not apply so as to enable a man to derogate from 
 that which he has expressly and in terms granted. It 
 does not say that in no case of express grant shall he be 
 entitled to do what the defendant is, in the present case, 
 doing. If it is not in derogation of the express terms 
 of his grant, why should the Com't prevent him from 
 doing it ? In my opinion we cannot but come to the con- 
 clusion that, if this is a right of common, it is in the 
 nature of common appurtenant, and that as against such 
 a right of common the Statute of Merton applies." 
 
 Windmill, The statute goes on to enact " that by occasion of a 
 
 ' ' windmill, sheepcote, dairy, or the necessary augmenta- 
 tion of a court or cui'tilage, for the future no man shall 
 be grieved by assise of novel disseisin for common of 
 pasture." On this passage Lord Coke observes (a) "there 
 be five kinds of improvements expressed, that both 
 between lord and tenant, and neighbour and neighbour, 
 may be done without leaving sufficient common to them 
 that have it, anything either herein or in the Statute of 
 
 {<■/) Second Institute, part 2, p. 475.
 
 STATUTE OF MERTON. 115 
 
 Merton to the contrary notwitlistanding ; and these five 
 are put but for examples; for the lord may erect a 
 house for the dwelling of a beast keeper for the safe 
 custody of the beasts as well of the lord as of the com- 
 moners depasturing there, in that soil, and yet it is not 
 within the letter of this law." Tlien, with regard to a Necessary- 
 necessary curtilage, he observes (b) necessarii is to be ^^'"^^o®- 
 applied to curtilage, both in congruity and by our 
 books ; and necessanj shall not be taken according to the 
 quantity of the freehold he hath there, but according to 
 his person, estate or degree, and for his necessary dwell- 
 ing and abode ; for if he hath no freehold there in that 
 town but his house only, yet may he make a necessary 
 enlargement of his curtilage." 
 
 Lord Coke, in the margin, refers to a case in the 
 32nd year of the reign of King Edward III., reported 
 in the Book of Assises (c). The Book of Assises is a Case in the 
 book of the assises and pleas of the Crown, moved and ^ °^ °^ ^ 
 
 J- ' Assises as to 
 
 depending before the justices, as well in their circuits inciosm-e for 
 as elsewhere, in the time of King Edward III. In this of messua<^e. 
 case, on an assise of novel disseisin, the plaintiff made 
 his plea of common in an acre of land, from the feast 
 of St. Michael until Candlemas, if the land was not 
 sown, and, if the land was sown before Candlemas, 
 then of common from the feast of St. Michael until the 
 land was sown, with all manner of beasts. Finch, the 
 opposite counsel, said he could not have an assise, be- 
 cause there is in the same town a messuage, and from 
 ancient times there has been a messuage and forty acres 
 of land, and this, which he calls an acre of land, is not, 
 perhaps, but a rod of land, and was adjoining to his 
 messuage ; and, because his messuage was too small for 
 his dwelling and for his necessaries, according to his 
 estate, he inclosed this rod of land, and on part of it he 
 
 {b) Second Institute, part 2, [c] 32 Ass. par. 5. 
 
 p. 476. 
 
 I 2
 
 116 PRESCRIPTIVE RIGHTS. 
 
 built rooms necessary to liis estate, namely, two granges 
 and two dove houses, and other rooms, and of the rest 
 he made a curtilage ; and he demanded judgment, 
 whether the assise should be. And he was driven to 
 say how much was built upon, and how much was cur- 
 tilage ; wherefore he said that one moiety was built 
 upon, and the other moiety was curtilage. Wichingham, 
 the opposite counsel, said that it was an acre of land, as 
 they had said, and that the plaintiff had over this land 
 a common chase and re-chase of his beasts of the same 
 town ; and they denied that the defendant had a house, 
 and that the house was not sufficiently convenient and 
 large for his freehold, w^hich he had in the same town ; 
 so that it was inclosed without necessity. Finch replied 
 that the statute spoke nothing of the quantity of land, 
 and only that he might inclose that which is necessary 
 to him for his dwelling ; so that a man may inclose and 
 enlarge his house, having regard to his person and his 
 estate, and not to the quantity of land. Skip nit h (who 
 was a judge) : A man may have more advantage from his 
 house than all the rest of his land, so that the quantity 
 of the land is not to the purpose on the words of the 
 statute. Green (also a judge) : If a man has only one 
 house in a town, still he may enlarge the house by the 
 statute ; for the benefit of the statute is only that a man 
 may amend his house for his dwelling, and not for the 
 land. Wherefore the issue shall be, whether it was in- 
 closed by necessity, as he has said, or without necessity. 
 And so it was. You will observe here, that the common 
 was claimed for the beasts in a town or vill. It was 
 not claimed over waste land, but over land which was 
 sometimes cultivated, and it was evidently a claim 
 between neighbour and neighbour, according to the 
 Statute of Westminster the 2nd. And it was also a 
 claim, not for commonable cattle only, but for all 
 manner of beasts, and so was a claim for common 
 appurtenant. And the Court held, that the question to
 
 STATUTE OF MERTON. 117 
 
 be decided simply was, whether the iuclosiire made by 
 the defendant was necessary or not for his habitation, 
 according to his estate and degree. 
 
 There is a modern case on this branch of the statute, 
 namely, the case of Patrick v. Stuhhs{d), in which it Patricks. 
 was held that the owner of a waste might lawfully erect " *' 
 two cottages thereon, for the habitation of two wood- Cottages fox- 
 wards to preserve the woods, and as beast keepers for 
 the safe custody of the cattle of the plaintiff, and of 
 other persons entitled to rights of common. The Court 
 proceeded on the authority of Lord Coke and his com- 
 mentary, which says, as you have seen, that the in- 
 stances put in the act are put merely by way of example. 
 Indeed, as the Court remarked, the building of a house 
 for a beast keeper was expressly said by Lord Coke to 
 be within the spirit of the act. 
 
 The statute goes on as follows : " And where some- 
 time it chanceth that one having right to approve doth 
 then make a dyke or a hedge, and some by night or at 
 another time when they suppose not to be espied, do If the hedge 
 overthrow the hedge or dyke, and it cannot be known, ^hiwu' the 
 by verdict of the assize or jury, who did overthrow the meri of the 
 hedge or dyke, and the men of the towns near will not towns to 
 indict such as be guilty of the fact, the towns near ad- ^''^^'^^ ^^ °^^'^- 
 joining shall be distrained to make the hedge or dyke 
 at their own cost, and to yield damages." This part of 
 the statute again, by its reference to adjacent towns, 
 seems to add confirmation to our theory with regard to 
 commons having anciently existed in respect of towns. 
 The men of the towns near ought to have indicted 
 those who wrongfully pulled down the dyke or fence ; 
 if they failed to do so the towns, by this statute, were 
 to be distrained to make the hedge or dyke at their 
 own expense. 
 
 {d) 9 Mee. & Wels. 830. See also Ncvlll v. Hancerton, 1 Lev. G2.
 
 118 
 
 PRESCRIPTIVE RIGHTS. 
 
 LECTURE IX. 
 
 Notice of an 
 intended in- 
 closure to be 
 given. 
 
 An important inroad on the Statutes of Merton (a) and 
 Westminster the Second (i) has been made by the 
 Commons Act, 1876 (e), which provides {d) that any 
 person intending to inclose or approve a common, or 
 part of a common, otherwise than under the provisions 
 of that act, shall give notice to all persons claiming any 
 legal right in such common, or part of a common, by 
 publishing, at least three months beforehand, a state- 
 ment of his intention to make such inclosure, for three 
 successive times and in two or more of the principal 
 local newspapers in the county, town or district in which 
 the common or part of a common proposed to be in- 
 closed is situate ; but the provisions of this section shall 
 not apply to any commons or waste lands whereon the 
 rights of common are vested solely in the lord of the 
 manor. A production of a newspaper containing such 
 advertisement as aforesaid shall be evidence of the same 
 having been issued, and the inclosure shall, until the 
 contrary is proved, be deemed to have taken place at 
 the time specified in such advertisement. 
 
 Onus on lord 
 to prove suf- 
 ficiency. 
 
 "When the owner of a waste wishes to improve or 
 inclose it, under either of the Statutes of Merton or 
 Westminster the Second, the onus lies on him to prove 
 that he has left sufficient common for all the commoners 
 entitled to common on the waste, together with suffi- 
 cient egress and regress for their cattle. This doctrine 
 
 {a) Stat. 20 Hen. III. c. 4 ; 
 ante, p. 103. 
 
 {b) Stat. 13 Edw. I. c. 46 ; 
 
 ante, p. 110. 
 
 {e) Stat. 39 & 40 Vict. c. 56. 
 {d) Sect. 31.
 
 APPROVEMENT. 119 
 
 is thus laid down by Mr, Justice Bayley in the case 
 of Arlett V. EUis (c). " It seems to me that the lord's 
 right is this : he may approve, provided he leave suffi- 
 ciency of common of pasturage for all the cattle which 
 are entitled to feed upon it. The common may ori- 
 ginally have been destined for a definite number of 
 cattle, or for all cattle levant and couchant upon certain 
 lands. Many of those rights may be extinguished, or 
 the common itself may produce so much more herbage, 
 that a smaller portion of that common may be sufficient 
 for depastming the cattle of the persons entitled, than 
 when it was originally destined to that purpose. Now, 
 whenever that is the case, I think that the lord has a 
 right to inclose ; but in order to justify making the 
 inclosure, it is incumbent upon him or his grantee, when 
 the right to inclose is questioned, to show that there is 
 sufficiency of common left." So Lord Hatherley, in 
 the case of Beits v. T/iompson {/), says: "As to the 
 argument that there was still enough waste left, the 
 onus of the proof was on the lord ; and even in cases 
 where a very large extent of common has been left, the 
 lord must prove that he has left enough." This proof Proof of suf- 
 is not always easy ; for it seems to involve in it a '^^^^'^y- 
 proof of the number of persons entitled to rights of 
 common, and of the nature and amount of their re- 
 spective rights, in regard to which it would not always 
 be easy to obtain sufficient evidence. On this point 
 there is not a great deal of authority. In the case 
 of LctJic V. PIaxton{g), it was held that the right of •i^'^s v. 
 the crown to tm-n deer on the waste did not form an 
 element for the consideration of the jury on the ques- 
 tion of sufficiency of common, in a case where no deer 
 had been turned on the waste for upwards of twenty 
 years. It is clear, however, that the right of the crown 
 
 (e) 7 B. & C. 369. {g) 10 Ex. 19G. 
 
 (/■) L. R., 6Ch. 723, 741.
 
 120 PRESCRIPTIVE RIGHTS. 
 
 to turn on deer would not be affected by twenty years 
 non-user, and this case, which related to Epping Forest, 
 cannot be relied on after the decision of the Master of 
 the Rolls in the Epping Forest case, The Commissioners 
 of Scircrs v. Glasse [li). 
 
 Lascciicsv. In the recent case of Lascelles v. Lord Onflow {!,), the 
 
 Court — J J. Mellor and Lush — were of opinion that if the 
 lord could prove that he had left sufficiency for all the 
 cattle that had been usually put upon the waste for the 
 last ten years, this was enough. Modern use is, however, 
 I venture to think, a very fallacious guide. Sheep and 
 cattle are often now too valuable to be put upon a com- 
 mon, where they run the risk of catching infectious 
 diseases from the poorer and less cared for cattle and 
 sheep, which other commoners may put on. And yet the 
 OAvner would be sorry to lose ]iis full right of common, 
 and I think ought not to do so, because perhaps for 
 some years he has not fully exercised it. And in the 
 Mimp-avcx. recent case of Musgrave \. Iiiclosure Commissioners {h), 
 Commissiomrs. the Court Came to the conclusion that a right of com- 
 mon of pasture existed, and had been usually enjoyed, 
 in respect of a farm called Main's Farm, over a waste 
 called The Fell, although there had been no user at all 
 from 1828 to 1844, sixteen years. The tenant, in 1828, 
 turned a few horses on The Fell, and also sixteen or 
 eighteen sheep during the summer of that year, and a 
 pony in 1844 or 1840. But he did not keep a flock fit 
 to be tm-ned on The Fell ; and sheep were not sent by 
 him to The Fell because there was better pasture on the 
 Main Farm. And yei, because in old deeds rights of 
 common generally had been granted, with rights of 
 way for cattle and sheep to and from The Fell, it was 
 held that there was sufficient evidence of a right of 
 pasturage usually enjoyed in respect of this farm ; 
 
 {h) L. E., 19 Eq. 134. (/.) L. E., 9 Q. B. 1G2. 
 
 (i) L. R., 2 Q. B. Div. 433.
 
 ArPROVEMENT. 121 
 
 altliougli for considerably more than ten years not a 
 single cow, horse, or sheep had been put upon the 
 waste. 
 
 The proceedings under the old icrit of adniemuvemcnt Writ of ad- 
 of pasture throw some light upon this subject. They are J^ pasture. 
 well described by Blackstone in his Commentaries (/). 
 He says, " This "wo-it lies, either when a common ap- 
 purtenant 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 ^\Tit of 
 admeasurement, which is one of those writs which are 
 called ricoiitielyheing dii-ected to the sheriff (vice comiti), 
 and not to be retm-ned to any superior Court till finally 
 executed by him. It recites a complaint that the de- 
 fendant hath surcharged, superonemvit, 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 com- 
 moners 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 oaths to ascertain, under the superintendence of 
 the sheriff, what and how many cattle each commoner 
 is entitled to feed. And the rule for this admeasure- 
 ment 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 ancient law ex- 
 pressed it, such cattle only as are levant and coucit a »t upon 
 his tenement " (^^0- Here you observe that all the com- 
 
 (0 Vol. 3, p. 238. {m) Ante, p. 31.
 
 122 
 
 PRESCRIPTIVE RIGHTS. 
 
 Robinson \. 
 Dulecj) Suiff/t. 
 
 Writ now 
 abolished. 
 
 Remedies for 
 
 surcliarge. 
 
 Distress, 
 
 trespass, 
 case. 
 
 moners were admeasured, as well those who had not as 
 those who had surcharged the common. And this seems 
 the only sure way of ascertaining whether there is a de- 
 ficiency or not. In case of deficiency every commoner 
 woidd be obliged in fairness to abate proportionably, 
 and there would be no means of arriving at each man's 
 due proportion, but by ascertaining how many sheep 
 and cattle each commoner's tenement would carry, as 
 levant and couchant thereon. And I confess that I 
 cannot see how else the question of sufficiency can be 
 fairly determined, whenever a substantial portion of the 
 common is inclosed. In the recent case of Robinson v. 
 Dukej) Singh (n), Mr. Justice Fry came to the conclu- 
 sion that the increase of an inclosure round a warren er's 
 house on the common from thi'ee acres and a-half to 
 seven acres did not interfere with the sufficiency of the 
 common as a common for sheep. The common was 
 eleven miles round. There were not many commoners. 
 Very little feed grew on the part inclosed. There was 
 grass in some places, but most parts of the common pro- 
 duced a kind of moss in great abundance, which, when 
 dry, the sheep would not eat, but which after rain was 
 far more than enough for all the sheep that the com- 
 moners had a right to tm'u on. The writ of admeasure- 
 ment of pasture was abolished by stat. 3 & 4 Will. IV. 
 c. 27 (o), along with a number of others, and in fact the 
 whole of the ancient writs in real and mixed actions 
 (except proceedings for freebench and dower, quare 
 impedit for presentations to benefices, and ejectment). 
 The usual remedies for surcharging a common are, on 
 the lord's part, by distraining so many of the cattle or 
 sheep as are in excess of the number allowed (p), or 
 by action of trespass. On the part of any commoner 
 the remedy is by action on the case (^7). 
 
 («) L. R., 11 Ch. D. 798. 
 
 (0) Sect. 36. 
 
 Ip) mis V. Bowles, Willes, 638. 
 
 (q) Hall V. Harding, 4 Bur. 
 2426; Cape\. Scott, L. E., 9 Q. 
 B. 269.
 
 APPROVEMENT. 123 
 
 I now come to consider the question whether the 
 Statute of Merton extends to copyholders, who have, by Copyholders, 
 custom, a right of common on the waste. The copy- 
 holder, you may remember, is in law but a tenant at 
 will ; he cannot, therefore, prescribe, as a prescription 
 must be made in the name of the owner of the fee ; and 
 the owner of the fee is the lord of the manor, on whoso 
 waste it is that the common is claimed. The law there- 
 fore allows him to claim by custom (r). I apprehend, 
 however, that in the case of an ordinary copj^holder, 
 having common by custom on the waste, the lord may Lord may ap- 
 approve under the Statute of Merton («). When this ^opyhoS'* 
 statute was passed, I apprehend that it could hardly having cus- 
 have been contended that the lord could not inclose of 'common, 
 against copyholders, whose position then was of a much 
 more uncertain kind than it is at present. And in the 
 case of Shakespear v. Peppiii (f), the point was given up Shakespear v. 
 by counsel. The lord, however, in the case of copy- '•'^^^'"" 
 holders, equally with freeholders, is bound to show that 
 he has left sufficiency of common for all the commoners. 
 In some manors a right is claimed by the lord of granting Grant of part 
 any part of the waste as copyhold, to be holden of him- copyhoid^^ 
 self by copyhold tenure. Wherever such a custom as 
 this exists, the presumption is that the whole of the 
 waste is of a demisable quality ; and, when the grant is 
 made, the tenant becomes a copyholder by virtue of the 
 custom of the manor, just as much as if he had been 
 a copyholder from time immemorial. A custom of this 
 kind, however, is invalid, unless each grant be accom- 
 panied with proof, on the part of the lord, that he has 
 left sufficient common for all the commoners. A custom Custom to 
 for the lord to grant at his pleasure any part of the pie^g^^^e j^j 
 waste, irrespective of sufficiency for the commoners, 
 would evidently be destructive to their rights, and as 
 
 ()•) Ante, p. 17. (0 6 T. Kep. p. 741. 
 
 {s) Stat. 20 Hen. III. c. 4.
 
 124 
 
 rRESCRll'Tl"S'E RIGHTS. 
 
 Lord must 
 prove that he 
 has left suf- 
 ficiency of 
 common. 
 Arlett V. Ellis. 
 
 siieli would be void {k). This is iu analogy to tlie 
 Statute of Merton. The inclosure under the Statute 
 of Merton is an inclosure of freeholds ; but, where 
 the lord grants as copyhold parcel of the waste to be 
 holden of the manor, that is not within the letter of 
 the Statute of Merton. But it is held to be within 
 its spmt ; and the lord cannot grant part of the 
 waste to be holden as copyhold, by virtue of the cus- 
 tom of the manor in this respect, unless he proves that 
 he has left sufficiency of common (.r) . In the case of 
 Ar/ett v. Ellis, the lord of the manor granted two acres 
 of land, part of the waste, to hold to the plaintiff, his 
 heirs and assigns according to the custom of the manor, 
 at the yearly rent of 26'. 6(1. and all other burdens and 
 services ; and the plaintiff paid for a fine 8/. and was 
 admitted tenant. This was in October, 1825. In 
 February, 1826, the plaintiff began to inclose the piece 
 of ground, and made an embankment ; but, before the 
 inclosure was completed, the defendants, on the 7th 
 of March then following, entered upon the land and 
 threw down the embankment. There was neither turf 
 fit for fuel, nor pasture, on the land in question ; and 
 the defendants had no cattle with them, nor any in- 
 struments to cut tm-ves. They might have entered 
 itpon the common, and upon the piece of land in ques- 
 tion, and turned on their cattle, without throwing down 
 the embankment (//). The plaintiff produced several 
 entries from the court rolls of various grants of parcels 
 of the waste, made by the lords of the manor, from the 
 year 1650 to the time of the trial. It did not appear 
 on the face of the grants that they were made with the 
 consent of the homage, or that a sufficiency of common 
 remained for the commoners. The jury found on the 
 trial that the defendants did more than was necessary 
 
 («) Hadf/er v. Ford, 3 B. & A. 
 153 ; Arktt v. Ellis, 7 B. & C. 
 34G. 
 
 (.r) 7 B. & C. 31G. 
 ll/) 7 B. & C. 349.
 
 APPROVEMENT. 125 
 
 for the purpose of asserting their right of common. 
 The learned judge at the trial then directed a verdict 
 to be entered for the plaintiff for Is. damages ; but re- 
 served liberty to the defendants to move to enter a non- 
 smt, if the Court should be of opinion that the custom 
 was void. In Easter Term, 1827, a rule nisi for a new 
 trial was obtained, on the ground that the defendant 
 had not done more than he was entitled to do, in the 
 exercise of his right of common, and also on the ground 
 that it ought to have been averred that a sufficiency of 
 common was left. And of this opinion was the Court, 
 who made the rule absolute for a new trial. In this 
 case it was proved that there were 2,000 acres of waste 
 land uninclosed (z) ; but it appeared that there were a 
 great number of tenants ; and it was not shown that 
 the common left was sufficient for them all. This is a 
 very strong case, because it appeared that the ground 
 was only two acres, and that there was neither turf nor 
 pasture upon the land in question. 
 
 In some manors there is a custom for the lord to Custom to 
 grant part of the waste as cojrj^hold with the consent crasenTo/ 
 of the homage ; and sometimes also a custom for the homage, 
 lord to inclose as freehold part of the waste with the 
 consent of the homage. The homage in this case means The homage, 
 the tenants of _the_ manor, who in ancient times were 
 bound to do homage to their lord (a) ; and it comprises 
 both the freeholders of the manor and also the copy- 
 holders, if any. Where a custom of this kind exists 
 it seems to me that the Statute of Merton cannot apply. 
 That statute authorizes the lord to inclose any part of 
 the waste, leaving a sufficiency of common. But, if 
 there be a custom of the manor that the consent of the 
 homage is to be obtained to the lord's grant or the 
 lord's inclosure, surely it would be an utter destruction 
 
 (:;) 7 B. & C. 377. («) See Lectiu-es on the Seisin 
 
 of the Freehold, pp. 9, 12.
 
 126 PRESCRIPTIVE RIGHTS. 
 
 to this custom, if the lord could inclose, leaving a 
 sufficiency of common. If tlie custom is valid, and I 
 apprehend that there is no doubt that it is, then the 
 lord cannot inclose without obtaining the consent of 
 the homage. The case seems to me to fall within the 
 exception contained in the Statute of "Westminster the 
 2nd (i), " That agreement barreth the law." Such a cus- 
 tom must have had its origin in an agreement between 
 the lord and his tenants that he would not inclose any 
 part of the waste without theu' consent. I am not 
 aware of any authority on this exact point. There is 
 Duhcricy v. a casc, Diiberlei/ Y. Page (r), in which there was a custom 
 "^^' of the manor which was held to be over-ridden by the 
 
 right of the lord conferred upon him by the Statute of 
 Merton. But when the case comes to be considered, it 
 will be seen that it was not a custom for the lord to 
 inclose with the consent of the homage, but merely a 
 custom enabling a tenant to inclose any part of the 
 waste to be held as copyhold, first ohtaining the consent 
 of the lord, and then obtaining the licence of the hom- 
 age. I have obtained an office copy of the pleas in 
 this case. The manor in question was the Manor of 
 Harrow, otherwise Sudbury, in the County of Middle- 
 sex ; and the custom is thus set out in the pleadings : 
 Custom of the " Within the said manor there now is, and from time 
 out in the whcrcof the memory of man is not to the contrary there 
 pleadings m }^r^l]^ been, a certain ancient and laudable custom, there 
 
 Jjuberleij v. ' ^ ^ 
 
 I'age. used and approved of, that is to say, that, if any person 
 
 or persons during all the time aforesaid have or hath 
 been desirous to improve or inclose any part of the 
 waste of the said manor of Harrow, otherwise Sudbury, 
 with the appurtenances, whereof, &c., such person or 
 persons, so desirous to improve and inclose as aforesaid, 
 during all the time aforesaid, have or hath repaired to 
 the homage of the Court Baron of the said manor, at a 
 
 {h) Stat. 13 Edw. I. c. 46. (<■) 2 T. Rep. 391, 392.
 
 APPROVEMENT. 
 
 General Court of the same Court Baron, liolden in and 
 for the said manor, according to the custom of the said 
 manor, from time immemorial used and approved of 
 within the said manor ; and such person or persons have 
 or hath, dming all the time aforesaid, at such Greneral 
 Com"t desired that such his, her, or theii* desire to im- 
 prove or inclose any part of the wastes of the said 
 manor (first ohtaining the consent and licence of the 
 lord of the said manor whereof, &c., for the time being 
 so to improve or inclose) might he presented hy the 
 homage of the said Court Baron of the said manor at 
 such Greneral Court, holden in and for the said manor ; 
 and that, if the said homage of the Com-t Baron of the 
 said manor, at such General Comi; so holden as afore- 
 said, have, during all the time aforesaid, thought in 
 their consciences that the said intended inclosure was of 
 no prejudice to any tenant or tenants of the said manor, 
 but that the same might be granted, that then the said 
 homage of the said Court Baron of the said manor, at 
 such General Cornet so holden as aforesaid, have, during 
 all the time aforesaid, presented and have used and 
 been accustomed to present, and of right during all the 
 time aforesaid ought to have presented, and still of 
 right ought to present, at the said General Com-t so 
 holden as aforesaid, that such person or persons, so 
 desiring the said inclosure (first obtaining the consent 
 and licence of the lord of the said manor for the time 
 being) might and may inclose the same ; and, after 
 making such presentment as aforesaid, the said pre- 
 sentment so made hath been publickly read in open 
 Court, at such General Court so holden as aforesaid; 
 and, if no tenant or tenants then and there present 
 at such General Court, have or hath, upon the read- 
 ing of the said presentment, forbid the inclosing of 
 the said part of the wastes so intended to be inclosed as 
 aforesaid, that then the steward for the time being at 
 the said Court Baron of the said manor, at such General 
 
 127
 
 128 PKESCRirXIVE RIGHTS. 
 
 Court so holclen as aforesaid, Lath set a fine, and hath 
 used and been accustomed to set a fine and rent upon 
 such person or persons so desiring to inclose the said 
 part of the said wastes as aforesaid, for and in respect 
 of the said part of the wastes so intended to be inclosed 
 as aforesaid ; and hath, during the time aforesaid, 
 granted, and liath used and been accustomed to grant 
 the same part of the waste, so intended to be inclosed 
 as aforesaid, to such person or persons, so desiring the 
 same to be inclosed as aforesaid, and to no other person, 
 by a copy according to the custom of the said manor ; 
 and it hath not been lawful for and during all the time 
 aforesaid for any tenant or tenants of the said manor, 
 for any time after, to forbid or otherwise to hinder the 
 said inclosure so intended to be made, and made, in 
 pursuance of the said custom as aforesaid, or otherwise 
 to disturl) the said person or persons or his or their 
 lieirs or assigns, or his or their tenant or tenants thereof, 
 in the quiet enjoying of the said waste ground so in- 
 closed as aforesaid, in pursuance of such custom as afore- 
 said." 
 
 The special Tliis custom, you wiU see, is a very different custom 
 
 ilaberh'l^v. ^^'o^^ ^^^^ which uot unfrcqueutly exists, by which the 
 Far/c did not }ord is empowered to inclose, or to ffrant as copyhold, 
 
 prevent lord ,s pi o j t • • i 
 
 right to ap- part 01 the waste, nrst obtammg the consent of the 
 prove. homage. And, in the present case, the custom was held 
 
 not to interfere with the right of the lord to inclose 
 under the Statute of Merton. Justice Ashunt said [d), 
 " The right of the lord of the manor in this case is a 
 common law right, and not dependant upon any cus- 
 tom ; every custom must be construed according to the 
 subject-matter of it. Here it is only applicable to the 
 tenants of the manor. It gives them a right of in- 
 closing under certain restrictions, which they would not 
 
 {fl) 2 T. Rep. 392, n.
 
 APPROVEMENT. 129 
 
 otherwise have been entitled to do at all. But the right 
 here exercised by the lord is superior to the custom, 
 and derived from the common law." Bulk); Justice, 
 also said, " These customs are in favour of the tenants 
 of the manor, but by no means abridge the common 
 law right of the lord. For, by common law, he alone 
 had a right to inclose, and this privilege has been ex- 
 tended to the tenant under certain restrictions, and in 
 this instance the previous steps necessary to be taken 
 were intended as a benefit to the lord, and not as a re- 
 straint on him ; for before any person can inclose or 
 take any steps towards it, he must first obtain the con- 
 sent of the lord. The words are, ' any person being de- 
 sirous of inclosing may apply to the Court, &c., first 
 obtaining the consent of the lord ; ' therefore, in no in- 
 stance, can the tenant inclose without such consent." 
 
 It is curious that this is the same manor as that in 
 the case of Lo)xl NortJucick v. Sfanuri?/ (e). In this case Lord Korth- 
 it was said, that within the manor there was a custom '^"^^'^f ^* ^'^"^^' 
 for the lord to grant parcels of the waste, whenever he 
 should think proper, to hold by cojDy of court roll, — 
 that there were many tenements within the manor, which 
 had been holden immemorially by copy of court roll, 
 and many which had been granted in the above manner 
 out of the waste. A general custom, however, for the 
 lord to grant parcels of the waste, to hold by copy, 
 whenever he should think proper, would be void, unless 
 the lord could prove that a sufficiency of common was 
 left(,/). There may have been, in addition to the 
 custom detailed in the pleadings of Buherley v. Fage, 
 another custom for the lord himself to grant parcels of 
 the waste, provided he left sufficiency of common. In 
 the case of Lord Northuick v. Stanivni/, the defendant 
 refused to pay a fine, which had been assessed on his 
 
 {e) 3 Bos. & Pul. 346. (/) Ante, p. 123. 
 
 W.P. K
 
 130 
 
 PRESCRIPTIVE RIGHTS. 
 
 admission to a copyliokl tenement, formerly part of the 
 waste, on the ground tliat the premises were not strictly 
 copyhold ; because it was the essence of copyhold tenure 
 that the premises should have been demised or demis- 
 able by copy of court roll from time immemorial ; 
 whereas it appeared in the present case that the premises 
 had been parcel of the waste within time of memory. 
 But, with res2:)ect to this point, the Court observed that, 
 although the premises in question had been newly 
 granted by copy of court roll, yet that, having been 
 granted by virtue of an immemorial custom to demise 
 parcel of the wastes as copyhold, they were to be con- 
 sidered as much copyhold tenements as if they had been 
 immemorially holden by copy of court roll ; and that 
 the tenure had its foundation in custom, which had im- 
 memorially attached upon the waste, the subject of the 
 grant. 
 
 Customs to 
 inclose with 
 consent of 
 homage. 
 
 Stepney. 
 
 Lady Went- 
 worth V. Claij. 
 
 Hampstead. 
 
 A custom for the lord to make grants or inclosures of 
 part of the waste with the consent of the homage con- 
 tinues in several manors. In the manor of Stepney, in 
 the county of Middlesex, there is a custom for the lords 
 of the manor, upon the presentment of seven of the 
 copyholders thereof, to determine what waste ground was 
 to be set out and inclosed, in order to build on the 
 same ; and such presentment being agreed unto by the 
 major part of the homage at the next court, the same 
 was set out and inclosed accordingly. This custom was 
 held valid in the case of Lady Wentwovth v. Chuj and 
 otJicrs {g), and it was held that the lady of the manor 
 had poM-er to grant leases and estates at her pleasure of 
 land A\hicli had been so set out. The manor of Hamp- 
 stead is also an instance ; and the custom is mentioned 
 in the case of ToJkard v. llemmdt (//), Avhich was a case 
 relating to this manor. The custom is there stated to 
 be a custom for the lord, with the consent of the homage, 
 {o) Cases temp. Finch, 2G3. {h) 5 T. Rep. 417, n.
 
 APPROVEMENT. ] 3 1 
 
 to make grants of portions of the wastes for the purpose 
 of building. In this manor the custom appears to be 
 also to grant portions of the waste as copyhold. The 
 case of Folkord v. Ilcmmdt is reported on another point 
 in Sir "Wm. Blaekstone's Keports (/), from which it 
 appears that the manor in question was the manor of 
 Hampstead. On a case of this sort, Air. Justice Bajley 
 makes the following remarks in the case of AHett v. 
 EUis (k) : — " In Folkard v. Hemmctt the grant of the soil 
 was made by the lord mth the consent of the homage. 
 Now, the homage are persons associated together at the 
 lord's court (at which all the tenants of the manor may 
 attend) to act as between the lord and his tenants. 
 Being tenants themselves, it is not very likely that they 
 ■udll lean unfairly towards the lord ; and if the homage 
 say, therefore, that a grant shall be made, assuming 
 that the lord has a right to grant wherever there is more 
 land than is necessary for the purpose of the commoners, 
 it may be reasonably presumed that the homage have 
 given their consent to the grant, only when it is clear 
 that the land granted may be taken by the grantor, 
 without interfering ^dth the rights of the commoners ; 
 and, on the other hand, it may be fairly presumed that 
 the homage would never consent to any part of the 
 common being taken away from the tenants, unless they 
 were satisfied that sufficient remained for the commoners. 
 The case, therefore, is distinguishable from the present : 
 there the grant was made with the consent of the homage, 
 here it is done by the act of the lord himself." Where, 
 therefore, the lord is, by custom, bound to obtain the 
 consent of the homage before he can inclose, I appre- 
 hend that the Statute of Merton will not enable him to 
 make an inclosure without such consent. 
 
 Where there is a custom for the lord of a manor to Homage can 
 inclose or grant any part of the waste with the consent tenantrof 
 
 (0 Vol. 2, p. 106. (/■) 7 B. & C. 368. "^^'loi'- 
 
 k2
 
 132 
 
 PRESCRIPTIVE RIGHTS. 
 
 Boulcott V. 
 Winmill. 
 
 Overrulecl iu 
 
 Commissioners 
 of Sewers v. 
 Glasse. 
 
 Lascclles v. 
 Lord Onslow. 
 
 of tlie homage, it must always be rememLered tliat the 
 homage assembled at the lord's court can only bind those 
 whom they represent, namely, the rest of the tenants of 
 the manor. If any persons, not tenants of the manor, 
 should have rights of common on the waste, the resolu- 
 tion of the homage will not bind them. There is a case 
 of Boukott V. Winmill {1), which related to the manor of 
 West Ham, in Epping Forest, in which it was held that 
 a custom for the lord, with the assent of the homage, to 
 grant parcels of the waste, to be held iu severalty by 
 copy of court roll, and inclosed, in exclusion of all per- 
 sons having rights of common, was a valid custom. But 
 this case was overruled by the present Master of the 
 Rolls, in the case of T/ie Commissioners of Seicers v. 
 Glasse {m). His lordship remarked [)i) that Boulcott v. 
 Winmill appears to have been a collusive action. In the 
 recent case of Lascelles v. Lord Onslow (o), it was held 
 that grants made by the lord of a manor under a custom 
 of portions of the waste to hold as copyhold, with the 
 consent of the homage, all of Avhom were copyholders, 
 were binding on the freeholders who were summoned to 
 attend, and w^ho might have done so if they pleased. 
 
 Whether 
 copyholder 
 grantee of 
 Avast e is en- 
 titled to com- 
 mon. 
 
 Bracton. 
 
 "When there is a custom in a manor for the lord to 
 grant a part of the waste as copyhold, either at his own 
 discretion, leaving sufficiency of common, or with the 
 consent of the homage, a question may arise, whether 
 the grantee has or has not a right of common upon the 
 residue of the waste in respect of the land so granted to 
 him. If the lord approves under the Statute of Merton, 
 or approves part of the waste as freehold with the con- 
 sent of the homage, there is no doubt that tlie land so 
 approved is not only discharged from all rights of com- 
 mon over it, but cannot entitle its owner to place any 
 cattle upon the common. Bracton says, speaking of the 
 
 (l) 2 Camp. 259. 
 
 (;«) L. R., 19E(i. 134. 
 
 (w) Page 143. 
 
 (o) L. K., 2 Q. B. Div. 433.
 
 APPROVEMENT. 133 
 
 defences which may he made to a claim of common, 
 that one defence may he, that no common helongs to 
 such a tenement, hecause it was formerly forest, wood, 
 and a place and common of vast solitude, and has lately 
 heen assarted, or newly inclosed or reduced to culti- 
 vation ; and common ought not to belong to common, 
 and to a place where all in the country were accustomed 
 to have common (7;). The expression, "where all of 
 the country were accustomed to have common," is re- 
 markable as showing how much ancient rights of com- 
 mon were acquired rather by user than by express grant. 
 If, however, the piece of land, newly inclosed from the 
 common, be granted to hold as copyhold under a custom 
 for that pm^pose, then it would rather seem that, the 
 custom being from time immemorial, the copyholder 
 would have the same rights and privileges as any other 
 copyholder. He becomes, in fact, an ancient copy- 
 holder by virtue of the antiquity of the custom. In 
 the case of Lord Northicick v. Stamca// {q), to which J^onl North - 
 I have already referred (r), it was said that the tene- un//. 
 ments granted out of the waste were called icaste hold 
 copyholds, whilst other tenements were called ancient 
 copyholds, and that the tenants of the former were 
 entitled to some privileges to which the tenants of the 
 latter were not entitled. But the Court held, as we have 
 seen {s), that "although the premises in question had 
 been newly granted by copy of court roll, yet that, 
 having been granted by virtue of an immemorial cus- 
 tom to demise parcel of the waste as copyhold, they 
 were to be considered as much copyhold tenements as if 
 they had been immemorially holden by copy of court 
 roll." If so, one would think that the tenement 
 created under such a custom ought to have precisely 
 the same privileges as ancient tenements. There is a 
 
 (p) Bracton, book 4, cliai?. 38, (;•) A)ite, i). 129. 
 
 par. 11, pp. 225, 226. («) Ante, p. 130. 
 
 i^j) 3 Bos. & Pill. 346.
 
 134 mESCRlPTIVE RIGHTS. 
 
 Swatjuc'scasc. case ill Loid Coke's Reports, called Sicaijnes case (/), in 
 ■\^-liieli a grant was made by copy of coiu-t roll of a 
 Louse and a yard and a-balf of land, according to the 
 custom of the manor, on which land oak and ash trees 
 were growing ; and, although all the woods and under- 
 woods had been aliened from the manor, yet it was 
 held that the grantee by copy could have estovers from 
 these woods ; on the ground that, although the grant be 
 new, yet the title of the copyholder is ancient, and so 
 ancient that by force of custom, it exceeds the memory 
 of man. In this case, however, the copyholds granted 
 did not form any portion of the waste of the manor ; 
 and I am not aware that the point in question has 
 actually been decided. 
 
 {t) 8 Eep. 63.
 
 ( 135 ) 
 
 LECTUEE X. 
 
 Lord Coke, in liis Commentary on the Statute of 
 Merton ((^/), observes (i), "If the lord dotli inclose any 
 part, and leave not sufficient common in the residue, the 
 commoner may break down the whole inclosure, because Commouer 
 it standeth upon the ground which is his common," jown fence if 
 And we have seen (c) that in the case of Arlett v. common m- 
 
 . sumcient. 
 
 Ellis (d), it was held, that the commoners might break Arlett Y.Ellis. 
 down the fence, although there was no pasture on the 
 land in question, and although the defendants had not 
 with them any cattle at the time. Mr. Justice Little- 
 dale said {c), "It might be a great injury to the com- 
 moner to have fences set up on a common in different 
 places ; and, although he might bring an action for the 
 obstruction, yet he is in this, as in other analogous cases, 
 entitled to abate the nuisance ; and that is much more 
 convenient than that he should bring an action for 
 every obstruction ; because, when the fences are thrown 
 down, the question of right may be decided in one 
 action," The most remarkable instance of pulling 
 down of fences in assertion of a common right, which 
 has occurred in modern times, was that which gave rise 
 to the suit of Smith v. Earl Broivnlow {/). In that Smithy. Earl 
 case, the late Earl Brownlow, who was lord of the 
 manor of Berkhamstead, in the county of Herts, caused 
 500 acres, part of Berkhamstead Common, to be in- 
 closed. Tliis was effected by the erection of two strong 
 iron fences, each more than half a mile in length, both 
 
 («) Stat. 20 Hen. III. c. 4. [d) 7 B. & C. 346. 
 
 (J) Second Institute, part 1, {c) 7 B. & C. 378. 
 
 1). 88 ; ante, p. 109. (/) L. R., 9 Eq. 241. 
 
 (c) Ante, pp. 124, 125.
 
 136 PRESCRIPTIVE RIGHTS. 
 
 of wliicli were carried from one boundary of tlie com- 
 mon to the otlier ; so tliat a space in the middle of the 
 common was completely shut in between the fences and 
 the boundaries of the common ; while a portion at each 
 end of the common was left uninclosed. On the 6th of 
 March, 1866, Mr. Smith, the plaintiff in equity, who 
 was a tenant of the manor, and claimed a right of 
 common on the ground inclosed, sent down, by an early 
 special train, about 200 men, provided with instruments 
 for nipping the wire of the fence, and digging up the 
 iron standards, and by seven o'clock in the morning, the 
 work, which had been begun about five o'clock, was 
 completely finished. Each several post was laid upon 
 the grass with its appropriate quantity of iron wire 
 carefully folded round it. On the 9th of March, 1866, 
 the late Earl Brownlow commenced an action of trespass 
 against Mr. Smith for breaking up the fence. On the 
 31st of July in the same year, Mr. Smith filed his bill 
 in Chancery against the late Earl Brownlow, and prayed 
 for a declaration that the freehold and copyhold tenants 
 of the manor were entitled to rights of pasture, and 
 other rights, over the common, and for an injunction to 
 restrain the defendant, the lord of the manor, from in- 
 closing any part of the common and waste, and from 
 disturbing and interfering with any of the rights of the 
 plaintifi', and the other freehold and copyhold tenants of 
 the manor, in and over the common, or interrupting 
 their free ingress thereto or egress therefrom. The late 
 earl died in 1867, and the plaintiff then revived his suit 
 against the present earl. The action at law was not 
 proceeded with. The present earl defended the suit. 
 But the Court made a decree on behalf of the plaintiff 
 in the terms of the prayer of the bill as to the rights of 
 pasture ; and a perpetual injunction was also granted in 
 the terms of the prayer of the bill. The costs were 
 ordered to follow the event. So that not only was the 
 fence prostrated, but an injunction was obtained from
 
 APPROVEMENT. 137 
 
 the Court of Chancery which precluded the defendant 
 from ever setting it up again. 
 
 Lord Coke remarks in his Commentary on the Sta- statute of 
 tute of Merton(^), that "throughout all this statute, Jends^'only'to 
 jxistnm ct communia pastinre is named ; so as that statute common of 
 of approvements doth not extend to common of pisehary, ^^^ ^^* 
 or turbary, of estovers, or the like." On this subject 
 the case of Fawcett v. Strickland (h) is a leading authority. Fawcett v. 
 In that case the defendant Strickland, who was the lord '^'^'■'<'^''^«"^- 
 of the manor of Sedbergh, inclosed 700 acres of one of 
 the wastes called Blewcaster Common, leaving sufficient 
 of pasture for all the commonable cattle of the tenants of 
 the manor, and of all other persons who had common of 
 pastiu'e in the wastes or common, together with free 
 ingress and egress into and out of the same. The 
 plaintiff put his cattle into this inclosure, out of which 
 the defendant drove them ; and the plaintiff relied on 
 his right of common of pasture, and also on a right of 
 common of turbary in the waste. The Court held that 
 it was certain the common of turbary was not within the 
 Statute of Merton ; but here the action was for chasing 
 cattle, put into the waste to use tlie common of pasture ; 
 and that, although the plaintiff had common of turbary, 
 that it would not hinder the lord's approvement ; for 
 they were distinct rights. "If, indeed," it was said by 
 the Court (/), " by such inclosm-e their common of piscary 
 or their common of estovers were affected, as they were 
 interrupted in the enjoyment of either of these rights, 
 they might certainly bring their action ; and the lord, 
 to be sure, in such case could not justify such inclosure 
 in prejudice of these rights. And so may the plaintiff, 
 in the present case, if he be interrupted in the enjoy- 
 ment of his common of tiurbary ; but, by his present 
 action, he does not complain of any such interruption, 
 
 {g) Second Institute, part 1, (//) Willes, 57 ; 2 Comyns, 578. 
 
 p. 86. 0) Willes, p. 01.
 
 138 PRESClllPTlVE RIGHTS. 
 
 nor does ho insist upon any such matter in his replica- 
 tion. As, therefore, his only complaint is of an inter- 
 ruption of his common of pasture, and as, by the 
 Statute of Merton, the defendant Strickland might 
 certainly inclose part of the common, notwithstanding 
 the plaintiff's common of pasture, if he has left suffi- 
 cient common of pasture (which in the present case is 
 admitted by the pleadings), we are of opinion that the 
 right of common of turbary, insisted upon by the 
 plaintiff in his replication, is no answer to the defen- 
 dant's plea ; therefore the replication is bad in substance, 
 and judgment, so far as the demurrer goes, must be for 
 the defendant." This case was followed by that of 
 Shal-cspear \. SJial'cspcar V. Pcppiii{k), which was also a case in 
 eju^in. which the plaintiff''s cattle were distrained for trespass- 
 
 ing upon an inclosure, which had been made by the 
 lord, under the Statute of Merton, leaving sufficient 
 common of pasture. And, in this case, it was held that 
 a right to dig sand and gravel, which the plaintiff set 
 up, was no answer to the lord's right of approval under 
 the Statute of Merton, where the only point raised by 
 the ease was, whether the plaintiff had or had not a 
 right to put his cattle into the land inclosed. 
 
 Lord caunot But a right of estovers, or a right of turbary, or a 
 ri"-Ms oT right to dig sand or gravel, if it exists, will prevent the 
 estovers, \or^ from inclosing to the detriment of such a right. 
 
 turbary, or . " 
 
 digging sand Thus in the case of Duhcrleij v. PcKje (/), to which I have 
 01- grave. 'before referred (;;?), the defendants broke and entered 
 Page. into a close, lately part of the waste of a manor, and 
 
 they pleaded amongst other things a justification under 
 a right of digging sand or gravel upon the waste, which 
 right was traversed by the plaintiff's replication. The 
 case went to trial on the issue thus raised, and the issues 
 relating to the defendants' prescriptive right to dig 
 
 {k) 6 T. Rep., 741. {m) Ante, p. 126. 
 
 {t) 2 T. Eep. 291.
 
 APPROVEMENT. 
 
 139 
 
 gravel and sand having been found for tliem, tlie jury 
 were discharged from giving any verdict on the other 
 issues, on the ground that the lord could not in- 
 close, under the Statute of Merton, against such a 
 right, or any right of estovers. I have taken an ex- 
 tract from the pleas in this case, in order to show the 
 exact nature of the right of digging sand and gravel 
 which the defendants claimed. Their claim is put in Plea of right 
 this form ; they pleaded that the close mentioned in the j^ huhcrUyy. 
 declaration was anciently part of Harrow "Weald Com- ^'"0«- 
 mon in the manor of Harrow, otherwise Suclbmy, in 
 the county of Middlesex; and that the defendant Page 
 was seised in his demesne as of fee of divers messuages 
 and land within the manor ; and that he and all those 
 whose estate he had, at the time of the alleged trespass, 
 in the same messuages and land, from time whereof the 
 memory of man is not to the contrary, until the time 
 of the inclosure thereinafter mentioned had dug and 
 taken, and had been used and accustomed to dig and 
 take, and during all the time aforesaid hitherto of right 
 ought to have dug and taken, and still of right ought 
 to dig and take, for himself and themselves, his and 
 their farmers and tenants, occupiers of the said last- 
 mentioned messuages and land with the appurtenances, 
 sand and gravel in, upon, and throughout the said 
 waste and common, whereof, &c., for the necessary 
 repairing and amending of the ways, paths, and walks 
 of, and the gardens, orchards, and j-ards of and belong- 
 ing to, the said last-mentioned messuages, with the 
 appmi;enances, and for the necessary repairing and 
 amending of the ways in, upon, and belonging and 
 appertaining to the said last-mentioned land, with the 
 appurtenances, every year, at all times of the year, as 
 often as need or occasion should require, as to the said 
 messuages and land last mentioned, belonging and 
 appertaining. This plea, having been proved, was held 
 a sufficient justification for the defendant in pulling
 
 140 
 
 PRESCRirXlAE RIGHTS. 
 
 Grant v. 
 Gunner. 
 
 Lord cannot 
 approve 
 against com- 
 mon of tur- 
 bary. 
 
 down the fence, by which he was prevented from exercis- 
 ing this right, without regard to the question whether 
 there was or was not sufficient gravel or sand left for his 
 use. So the case of Grant v. Gunner and anof/icr{n) was 
 an action against the defendants for breaking and 
 entering into a close of the plaintiff, and digging up, 
 prostrating and levelling a mound or fence of the 
 plaintiff there erected which separated the close in 
 question from a certain common called Farnborough 
 Common, The defendants pleaded that the close in 
 question was part of the common, and they further 
 pleaded a grant in fee simple of a certain copyhold 
 messuage and land within the manor, and averred a 
 custom that the tenants thereof had immemorially had 
 common of turbary, (to wit) peat and tm-f , in and upon 
 Farnborough Common, to be had and consumed in the 
 said messuage every year, and at all times of the year 
 as occasion required, as belonging and appertaining to 
 the said customary tenement with the aj^purtenances. 
 The plaintiff pleaded the Statute of Merton, alleging that 
 when he inclosed the close in question he had left suffi- 
 cient common. The Court, however, gave judgment for 
 the defendants. Mr. Justice Lawrence observed that, if 
 there be common of tm^bary by grant, to issue out of all 
 and every part of the waste, the lord cannot, in derogation 
 of his own grant, approve against the right of turbary. 
 Chief Justice Mansfield said, that " no case, since the 
 Statute of Merton, is to be f omid in which it has been held 
 that the lord may approve against the right of common 
 of tm-bary. If the law be not against the approver, all 
 the reasoning in the case of Faiccctt v. Sfrick/aiul is 
 absurd. Chief Baron Comyns and all the books recog- 
 nize Lord Coke's doctrine without a doubt. S//akcsj)car 
 v. Pcpp'ui recognizes the authority of Faiccctt v. Stride- 
 land, and that case throughout the whole argument takes 
 it for granted that the law is so." " The universally 
 
 {n) 1 Taunt. 435.
 
 APPROVEMENT. 141 
 
 received opinion of the profession, ever since I have 
 been in the law," continued the Chief Justice, " has 
 been that there can be no approver against common of 
 turbary. Again, what Lord Coke says of approving at 
 common law against common appendant is only applic- 
 able to common of pastiu'e." 
 
 There is a case, Peardon v. Underhill (o), in which it Pem-don v. 
 was held that, in order for a right of common of turbary "''^' " 
 or common of estovers to prevail against an inclosure 
 made by the lord, the land must be such as either does Land must 
 produce, or in its nature may be capable of producing, capable of ^ 
 turf or fuel. In that case, the spot inclosed by the lord pi-oducmg 
 was a bare rock ; and it appeared from its nature that 
 not only no turf, nor furze, nor anything fit for fuel 
 had ever been found there, or could be expected to be 
 found there. " Of course some convulsion of nature," 
 as Mr. Justice Erie said (7;), " or some geological change, 
 might convert the spot into a turf bog ; but, in the 
 ordinary course of nature, no fuel could ever be ex- 
 pected there." And the Court were of opinion that, 
 even if a grant to take turf on the common, wherever 
 turf was to be found, were produced, it ought not to be 
 construed to extend to a part of the common in which 
 no fuel could, in the ordinary course of nature, be ex- 
 pected at any time to be found. 
 
 But although the lord cannot approve, under the Lord may 
 Statute of Merton, as against any right of common approve™ 
 but common of pasture, yet there may be a custom of agamst tur- 
 
 btirv or esto- 
 
 the manor enabling him to do so, as against rights of vera, leaving 
 turbary or estovers, provided he leave sufficiency for the ^^^^ciency. 
 commoners. This was held to be the case in Arlett v. 
 Ellis (q), to which I have already referred (r). It 
 was there held, that a custom to inclose, even as against 
 
 (0) 16 Q. B. 120. (q) 7 B. & 0. 346. 
 
 Ip) 16 Q. B. 127. (r) Anfc, pp. 124, 135.
 
 142 
 
 rHESCRirTIVE KIGIITS. 
 
 Lascdlea v. 
 Lord Onslow. 
 
 Inclosurcs f or 
 growth of 
 timber. 
 
 Stat. 
 IV. c 
 
 22 Edw. 
 
 . 7. 
 
 common of turbary, parcels of the waste, leaving a 
 sufficiency of common, was good ; and that it lay on 
 the lord, or his grantee, to sliow that a sufficiency of 
 common was left. And a custom of this nature was 
 held to exist on Chobham Common, in the county of 
 (Surrey, in the recent case of Lascelks v. Lord Onsloiv {s) . 
 
 Several statutes have from time to time been passed 
 with a view to the encouragement of the growth of 
 timber, some of which it may be desirable to mention, 
 as by their means inclosures were in old times effected. 
 And the interpretation placed upon these statutes affords 
 a good illustration of the manner in which all statutes 
 ought to be construed. There is an old act of the 22nd 
 of Edward IV. chap. 7, which does not appear to have 
 been repealed, and is intituled " An Act for Inclosing of 
 Woods in Forests, Chases and Purlieus." This act 
 comes rather under the head of forest law, and was 
 intended to benefit those persons who had lands subject 
 to a right in the crown or other persons to sport over the 
 same. The statute enacts that " if any of the king's sub- 
 jects, having woods of his own growing in his own 
 ground, within any forest, chase or purlieu of the same, 
 sliould fell the wood, by licence of the king or his heirs, 
 in his forests, chases or purlieus, or without licence in 
 tlie forest, chase or purlieu of any other person, or make 
 any sale of the same wood, it shall be lawf id to the same 
 subjects, owners of the same ground whereupon the 
 wood so felled did grow, and to the persons to whom 
 the wood should happen to be sold, immediately after 
 the wood was felled, to inclose the same ground with 
 sufficient hedges able to Jiccj) out all manner ofl>easts and 
 cattle from the same, for the preserving of their young 
 spring ; and the hedges so made, the said subjects 
 may keep them continually by the space of seven years 
 next after the same inclosing, and repair and sustain the 
 
 (.s) 2 Q. B. Div. 433.
 
 APPROVEMENT. 143 
 
 same as often as sliall need, within the same seven years, 
 without suing of any other licence of the king or his 
 heirs, or other persons, or any of their officers, of the 
 same forest, chases and purlieus." By the forest law, 
 the king, or owner of the chase, had a right to prostrate 
 all fences put up without licence, as such fences pre- 
 vented the owner of the chase pursuing the deer and 
 other wild animals therein. And this act provided that 
 where wood was felled and sold, the ground might be 
 kept inclosed for seven years, in order to enable the 
 young wood to spring. You will observe the words of 
 the statute, that the inclosure was to be made with 
 sufficient hedges able to heep out all manner of beasts and 
 cattle from the same ground. It was, however, held, in Sb- Francis 
 Sir Francis Barrington's case {t), that this enactment did f^J^''"'^^""'' 
 not affect a person who had a right of common on the The statute 
 forest. In that case the plaintiff, one Eichard Chalke, 22 Edw. IV. 
 
 ■^ . . c. 7, does not 
 
 was seised in fee of a house and six acres of land in afPect com- 
 
 Hatfield, in the county of Essex, to which he had com- ^pgg^^ ™ ^ 
 
 mon appurtenant for all cattle levant and couchant in 
 
 and through the whole forest or chase of Hatfield. It 
 
 appeared that Lord Eich was seised of the forest or 
 
 chase of Hatfield in fee ; and by his deed granted to 
 
 Sir Thomas Barrington and his heirs all trees, as well 
 
 timber trees, underwoods and thorns, growing and 
 
 standing, or in future to grow and stand, on certain 
 
 parts of the forest called Bushend Quarter and Takely 
 
 Quarter, except the land and soil of the same wood, 
 
 with liberty to inclose them, and to hold them inclosed 
 
 for the preservation of the spring of wood, which should 
 
 be, for such time as by the laws and statutes of the 
 
 realm is appointed and enacted, without the clistui'bance 
 
 of the said Lord Rich, his heirs and assigns, and to 
 
 exclude the deer and all other cattle out of the wood so 
 
 inclosed, and to have herbage and feeding thereof as any 
 
 owner of the wood might do, by the laws and statutes of 
 
 {f) 8 Kep. 136.
 
 144 PRESCRIPTIVE RIGHTS. 
 
 the realm, without interruption of the said Lord Rich, 
 his heirs or assigns. Su- Thomas Barrington died, and 
 the wood descended to Sir Francis Barrington, as his 
 son and heir, who felled the wood and inclosed it for 
 the preservation of the spring. The plaintiff's cattle 
 appeared to have got into the inclosure, and were dis- 
 trained by the servants of Sir Francis Barrington, upon 
 which the plaintiff brought his action of replevin ; and 
 the question was, Avhether the plaintiff was, by this 
 statute, deprived of his common or not. The provisions 
 of the act of 22 Edward IV. chap. 7, were urged upon 
 the Court, and it was said that there was no saving in 
 the act for the commoners ; and therefore, as it was 
 urged, they should be excluded of their common during 
 the seven years ; for every one is party and privy to an 
 act of parliament, and the rights and interests of those 
 which are not saved by the act of parliament are bound. 
 But the Court held, first, that Sir Francis Barrington 
 had an inheritance as profit apprender in alieno solo, and 
 the soil remains to the Lord Rich. And, secondly, that 
 the statute of 22 Edward IV. extended to Sir Francis 
 Barrington, notwithstanding he had not the soil. But, 
 thirdly, they held that the act doth not extend to the 
 wood of a subject in which any other has common, but 
 only to a several wood ; for by the common law, he who 
 has a wood in which another has common, cannot inclose 
 it to exclude the commoner of his common, be it forest 
 or chase, or out of forest and chase. It was said that 
 the act was intended only to extend the time to which 
 the owner of a several wood might inclose, as against 
 the owner of the chase, from three years to seven years. 
 They held, fourthly, that the preamble showed between 
 what persons, and for and against what persons, the act 
 was made ; and the parties to this great contract by act 
 of parliament were the subjects having woods, &c., 
 within forests, chases or purlieus of one part, and the 
 king and other owner of forests, chases and purlieus of
 
 APPROVEMENT. 145 
 
 the other part ; so that the commoners are not any of 
 the parties between whom this Act was made. They 
 held, fifthly, that if the Act had extended to wood in 
 which others had common, yet the conclusion restrains 
 the generality of the precedent words ; for the statute 
 doth not give an absolute and indefinite power to the 
 owners of wood to inclose, &c.; but to inclose the ground, 
 to keep it inclosed, and to repair it, uithout suing the 
 Mng^s licence, or other persons, or their officers of the 
 same forests, chases or purlieus, so that this conclusion 
 limits the precedent words only against the king and 
 other owners of forests, chases and pmiieus ; but no 
 word in the whole Act gives authority to them to in- 
 close against any commoner. This Act, therefore, was 
 held by the Court not to affect any persons having a 
 right of common in a forest or chase, or in the purlieus 
 of the same. There was another statute, 35 Hen. YIII. Stat. 35 Hen. 
 c. 17, which enabled the owner of any wood in which 
 others had common to inclose a fourth part of the wood 
 by agreement with "the tenants and inhabitants being 
 commoners" (?/), or by order of two justices of the peace. 
 This Act was repealed in the reign of Greorge lY. (.r) . 
 
 There is another Act, 29 Greo. II. c. 36, amended by Stat. 29 Geo. 
 statute 31 Greo. II. c. 41, passed for the purpose of ^ ■,^' ' 
 
 ' -^ 1^ 1 1 Inclosure lor 
 
 enabling the inclosure, by the mutual consent of the lords plantingtrees. 
 and tenants, of part of any common, for the piu-pose of 
 planting and preserving trees fit for timber or underwood. 
 The former of these Acts contemplates only the case 
 of the right of common of pasture, on the ground or soil 
 inclosed, belonging to all the owners or occupiers of 
 tenements within the parishes or townships wherein the 
 wastes lie ; and it is a remarkable illustration of what I 
 ventm^e to think was really the fact, that, in by far the 
 greater number of instances, the commoners were the 
 owners and occupiers of land in the township as a 
 («) See ante, p. 15. [x) By stat. 7 & 8 Geo. 4, c. 27. 
 
 W.P. L
 
 146 PRESCRIPTIVE RIGHTS. 
 
 townsliip ; altliough perchance the township might, and 
 in fact in most cases did, correspond and be contermi- 
 nous with some manor. The Act provides (y), that it 
 shall be lawful for all owners of wastes, wherein any 
 persons have right of common of pasture, with the 
 assent of the major part in number and value of the 
 owners and occupiers of tenements, to which the right 
 of common of pasture doth belong, and also for the 
 mfdpr part in number and value of the owners and 
 occupiers of such tenements, with the assent of the 
 owners of the wastes, and for any other persons, with 
 the assent of both of them, to inclose and keep in seve- 
 ralty any part of the wastes for the growth and pre- 
 servation of timber or underwood. And the second 
 section provides, that any recompense which may be 
 agreed to bo given to the commoners shall be paid to 
 the overseers of the poor of the parish or township, to 
 be by them applied for the relief of the poor of the 
 parish or township, where such wastes shall lie. The 
 Stat. 31 Geo. amending Act of 31 Geo. II. c. 41, recites that in many 
 cases the right of common of pasture, in the ground or 
 soil inclosed, may not belong to all the owners and 
 occupiers of tenements within the parishes or townships 
 wherein such wastes shall lie, and provides for a recom- 
 pense being made to the persons interested in the right 
 of common, in proportion to their respective interests 
 therein, instead of being paid to the overseers of the 
 poor as directed by the former Act. These Acts, though 
 still in the main unrepealed, have now become obso- 
 lete (z). 
 
 Powor to lease The Act of 13 Greo. III. c. 81, to which I have already 
 of wastes of referred (a), empowers the lord of any manor, with the 
 
 (y) Stat. 29 Geo. II. c. 3G, 20 Geo. II. c. 3G, were repealed 
 s. 1. by Stat. 7 & 8 Geo. IV. c. 27, s. 1. 
 
 (s) Sects. 6, 7, 8 audO of stat. {a) Ante, pp. 76, 81. 
 
 II. c. 41
 
 APPROVEMENT. 147 
 
 consent of three-fourtlis of the persons having right of manor for four 
 
 common upon the wastes within his manor, at a meet- public aiic- 
 
 ing to be held after fourteen days' notice, to be given as *^°^- 
 
 therein directed, to lease for any term not exceeding 
 
 four years any part of such wastes, not exceeding a 
 
 twelfth part thereof, for the best and most improved 
 
 yearly rent that can by public auction be got for the 
 
 same, — the clear net rents to be applied by the lord and 
 
 the major part of his tenants in the draining, fencing * 
 
 or otherwise improving the residue of the wastes (h). 
 
 There is in the same Act a power, in every manor Po-n-er to levy 
 
 where there are stinted commons, in lieu of leasinj? fT^T^T^^"^"^ 
 
 ' o improviiig 
 
 part of the wastes, for the lord and the major part in wastes. 
 number and value of the owners or occupiers of such 
 commons, present at a meeting to be held within the 
 manor, in pursuance of fourteen days' notice, to be 
 given as therein directed, to direct an assessment to be 
 levied upon the lord and the owners or occupiers of the 
 commons, the money to be employed in the improve- 
 ment of the commons from time to time as need shall 
 require ; with power of distress for enforcing the assess- 
 ment {c). 
 
 I now come to mention certain statutes, by which the 
 lord of a manor is authorized to make inclosures for 
 certain pm'poses. One of these is the old Poor Law 
 Act (statute 43 Eliz. c. 2), which provides to the follow- Stat. 43 Eliz. 
 ing effect {d) : — to the intent that necessary places of ^' "' ^' ' 
 habitation may more conveniently be provided for poor habitations of 
 impotent people, be it enacted that it shall be lawful P^"""- 
 for the churchwardens and overseers, or the greater part 
 of them, by the leave of the lord or the lords of the 
 manor, whereof any waste or common within theu* 
 parish is or shall be parcel, and upon agreement before 
 
 {h) Stat. 13 Geo. III. c. 81, (c) Sect. 16. 
 
 s. 15. [d) Sect. 5. 
 
 L 2
 
 148 
 
 PRESCRIPTIVE RIGHTS. 
 
 with, liim or them in writing, under the hands and seals 
 of the said lord or lords, or otherwise according to any 
 order to be set down by the justices of peace of the said 
 county at their general quarter sessions, or the greater 
 part of them, by like leave and agreement of the said 
 lord or lords, in writing under his or their hands and 
 seals, to erect, build and set up in fit and convenient 
 places of habitation in such waste or common, at the 
 general charges of the parish or otherwise of the 
 hundred or county as aforesaid, to be taxed, rated and 
 gathered in manner before expressed, convenient houses 
 or dwellings for the said impotent poor. And also to 
 place inmates, or more families than one, in one cottage 
 or house ; which cottages and places for inmates are 
 only to be used for the impotent and poor of the parish. 
 
 Inclosurefor There is also an Act of the 51 Greo. III. c. 115, s. 2, 
 churchyard or which empowers any person seised in fee, by deed 
 glebe for enrolled to grant as therein mentioned, any parcel of 
 the waste of a manor, not exceeding five statute acres, 
 for the purpose of erecting or enlarging a church or 
 chapel, or for making or enlarging the churchyard, or 
 burying ground, or for glebe to erect a mansion house, 
 or make other conveniences, for the residence of the 
 rector, vicar, curate or other minister, freed and abso- 
 lutely discharged of and from all rights of common 
 thereon. There is a recent case upon the construction 
 of this enactment, in which it was held that rights of 
 common only being mentioned, the Act did not extend 
 to enable the lord of a manor to grant part of the waste 
 under this Act, in a case where the land granted was 
 Village pa,i-f^ Qf the village green, and was subject to a custom- 
 
 ary right in the inhabitants, for enjoyment and exer- 
 cise, amusement and recreation, and for all lawful 
 Forbes Y. village sports, games and pastimes. The case is Forbes 
 
 Commissioners. V. Tlic Ecclcskisticcil Commissio)icrs for Eiifjland {<'). Al- 
 
 (e) L. E., 15 Eq. 51.
 
 APPROVEMENT. 149 
 
 though inhabitants of a place cannot, as we have 
 seen (_/'), claim a right of common by custom, yet they Cu.stomto 
 may lawfully set up a custom to hold lawful sports on a spo^ts^^^ 
 village green or other piece of land. The leading case 
 on this subject is Abbot v. Weekhj (r/), which was followed 
 by the Exchequer Division of the High Court in the recent 
 case of Hall v. Nottingham {h) . The marginal note of Hall v. 
 that case is, "A custom for the inhabitants of a parish to " '"^ ''^"'' 
 enter upon certain land in the parish and erect a may- 
 pole thereon, and dance round and about it, and other- 
 wise enjoy on the land any lawful and innocent recrea- 
 tion at any times in the year is good." And in a case 
 of Magdalen College, Oxford, v. Hiatt in the Court of 
 Exchequer (/) , in which I was counsel, the right of the 
 college, as lord of the manor, to inclose a village green, 
 on which a custom was proved of carrying on village 
 sports, was given up by Mr. Manisty, now Mr. Justice 
 Manisty, counsel for the college, as a point which he 
 could not argue. 
 
 The Act to afford f mother facilities for the con- Gift of site 
 veyance and endowment of sites for schools (/.•) pro- ^^ ^^ ^° ' 
 vides (/) for the gift of any quantity not exceeding one 
 acre of land as a site for a school for the education of 
 poor persons, or for the residence of a schoolmaster or 
 schoolmistress; and further provides that where any 
 portion of waste or commonable land shall be gra- 
 tuitously conveyed by any lord or lady of a manor for 
 any such purpose as aforesaid, the rights and interests 
 of all persons in the said land shall be barred and 
 divested by such conveyance. But the land so granted 
 is to revert on its ceasing to be used for the purposes of 
 the Act. 
 
 (/) Ante, p. 13. (i) 25 January, 1875. 
 
 {g) 1 Lev. 176. (/t) Stat. 4 .& 5 Vict. c. 38. 
 
 \h) L. R., 1 Ex. D. 1. {I) Sect. 2.
 
 150 
 
 rRESCRlPTIYE RIGHTS. 
 
 Lord's right 
 to i)iit cattle 
 on the waste. 
 
 In case of 
 inclosurc lord 
 has a right to 
 allotment. 
 
 Arundell v. 
 
 l^isconnt 
 Falmouth. 
 
 LECTUEE XI. 
 
 The soil of the waste lands of a manor, you will 
 remember, is always vested in the lord of the manor, 
 notwithstanding- the rights which the commoners may 
 have upon it. The lord, therefore, as owner of the soil, 
 has the same rights as other owners, except so' far as 
 the existence of the rights of the commoners may 
 prevent him from exercising these rights. One im- 
 portant right which he has is that of putting his own 
 cattle or the cattle of the tenants of his demesne lands, 
 upon the waste. The right of the tenants of his manor 
 is only a right of common ;. and the word common itself 
 implies a community of right (r/). This right of the 
 lord, to put upon the waste the cattle, which plough 
 and manure his own cultivated land, is of great impor- 
 tance in case of the inclosiu-e of the common. His 
 right, of coui'se, is not strictly speaking a right of 
 common, because he puts on the cattle as owner of the 
 soil. And a man cannot have a right of common over 
 his own land. Still it is a quasi right of common, and 
 is as valuable to him as if it were a strictly legal right. 
 It has consequently been held that, where commons are 
 by Act of Parliament directed to be inclosed, and 
 divided amongst the several proprietors thereof and 
 persons interested therein, in satisfaction of their lands 
 and grounds, rights of common, and other rights and 
 interests therein, the lord of the manor has a right to 
 an allotment in respect of his right to stock the com- 
 mon from his demesne land. This was decided in the 
 case of Arundell v. Viscount Falmouth {b), followed by 
 
 {«) Co. Litt. 122a. 
 
 {d) 2 M. k S. 440.
 
 -- EIGHTS OF LOKD. 151 
 
 the case of Lloyd v. Lord Powis (c), and more recently Lloyd y. Lord, 
 by the case of Musqrave v. Lnclosure Commimoncrs id). ,^ 
 
 T 1 • 1 111 T T • ^ 1 ' • Musfjrave v. . 
 
 in this last case, the lord succeeded m obtaining an inciosnre 
 aUotment in respect of a farm called "The Mains," Comnmsioncrs. 
 part of his demesne lands, on the ground that his 
 tenants had usually enjoyed a right of pasturage in 
 respect of this farm over the land inclosed, which was 
 called " The Fell," although between 1828 and 1844 
 no cattle had actually been turned on. I mentioned 
 this case in a former Lecture {e). 
 
 In many places the lord exercises, and I apprehend Driviug the 
 that he always has, a right of driving the comnioit, as it ' 
 is said, that is, the right, once a year or oftener if he 
 thinks fit, of driving all the cattle and sheep upon the 
 common into some corner or inclosed place, for the 
 pui'pose of ascertaining whose sheep and cattle they 
 are, and whether or not they have been rightfully put 
 upon the common, in exercise of a lawful right of 
 common. This right, which used frequently to be 
 exercised in former times, has now become obsolete in 
 many places, owing to the neglect of the owners of the 
 waste to look after their own interests. The lord has Planting 
 a right to plant trees upon the waste, so that he do not 
 materially injm'e the grass, which the commoners have 
 a right to eat by the mouths of their cattle (/). He 
 has also a right to make rabbit burrows upon the com- Rabbit 
 mon, subject in like manner to this limitation, that he ^^^°^^- 
 does not materially deprive the commoners of their 
 right of pasture (f/). Subject to the same limitations, 
 he has also a right to dig for gravel, sand, loam, clay. Grave], &c. 
 &c., to quarry for stone, and to mine for coal, iron and 
 other minerals, which may lie under the waste, for his 
 
 (f) 4 E. & B. 485. & Pul. 13, 17; per Bayley, J., iu 
 
 {d) L. R., 9 Q,. B. 162. Arlott v. Ellis, 7 B. & C. 362. 
 
 (c) Lecture IX., ante, p. 120. {g) Cooper v. Marshall, 1 Bur. 
 
 (/) Kirbi/ V. Sadgrovc, 1 Bos. 2.59.
 
 152 
 
 PRESCRIPTIVE RIGHTS. 
 
 Onus on 
 commoner. 
 
 Bateson v. 
 Green. 
 
 Sporting. 
 
 Encroach- 
 ments. 
 
 own profit ; and tlie onus lies upon the commoner who 
 oLjects to any of these proceedings, to show that the 
 enjoyment of his right of common has been injured 
 thereby [It). There is a case of Bateson v. Green (/), in 
 which it was held that the right of the commoner 
 might, by the custom of the manor, be subservient to 
 the lord's right in the soil ; so that the lord might 
 dig clay pits on the common, or empower others to do 
 so, without leaving sufficient herbage for the com- 
 moners, if such right were proved to have been always 
 exercised by the lord. This case has been much re- 
 marked on (A) ; but it seems to be still law. The lord is 
 also entitled, as owner of the soil, to sport over the 
 waste ; and it is very desirable that he should exercise 
 his rights, as, for want of such exercise, it may happen 
 that he will lose the ownership of the soil altogether. 
 For instance, if a person builds a hovel or cottage upon 
 the waste, then makes a little garden, and then puts up 
 a fence around the whole, and continues in possession 
 of his encroachment formerly for twenty (/), and now 
 for twelve years or upwards {m) ; the lord being then 
 seised in fee and under no disability ; the person who 
 has made the encroachment becomes himself absolutely 
 seised in fee of the piece of land which he has inclosed ; 
 and, being seised of the surface, he becomes seised also 
 of the mines and minerals under the surface. 
 
 Heddon V. 
 Smith. 
 
 I was counsel the other day in a case of Seddon v. 
 Stnith in the Court of Exchequer, and afterwards in the 
 Court of Appeal {n), in which a long strip of land, 
 parcel of the waste of a manor, had been set out by an 
 inelosure Act as a road or way to a certain tenement. 
 
 (//) Uall Y.Byron, L. E., 5 Ch. 
 D. 667, 680 ; liohinson v. Buleep 
 Singh, L. E., 11 Ch. D. 798, 831. 
 
 [i) 5 T. Hep. 411. 
 
 (A) Sec L. E., 4 Ch. D. G7S, 
 
 680. 
 
 (0 Stat. 3 & 4 Will. IV. c. 27. 
 
 \m) Stat. 37 & 38 Vict. c. 57. 
 
 («) Now reported 36 Law 
 Times, N. S. 108.
 
 RIGHTS OF LORD. - 153 
 
 The Act set out a road or way of thirty feet in width, 
 which was more than was necessary for the few carts 
 and waggons which had occasion to go to the tene- 
 ment. The owner of the tenement, to which and to 
 which alone this road led, although there was a public 
 footpath along the side, began by planting a few 
 cabbages over three-quarters of this lane, leaving the 
 other quarter for the footjDath and for his cai-ts. And 
 from year to year he went on planting sometimes 
 cabbages, at length wheat and other crops, and so lie 
 continued for upwards of twenty years. There were 
 valuable minerals under the waste, which the lord as 
 owner of the soil worked by a tenant. When, however, 
 the tenant began to work the minerals immediately 
 under this piece of land ; the tenant of the farm, who 
 or whose predecessors in title had planted the cabbages, 
 brought an action of trespass against him for taking 
 away coal, which he alleged to be his own, by reason of 
 his acquisition of a title to the soil, by twenty years 
 adverse possession under the Statute of Limitations. 
 And the Court, Barons Bramwell and Amphlett, held 
 that an action for trespass lay under the cu'cumstances. 
 And on appeal this judgment was affirmed by the 
 Chief Justice and J J. Brett and Baggallay. The only 
 point on which, the Court above differed from the 
 Court below was this. The Court below held that the 
 plaintiff in trespass, that is, the encroacher, was en- 
 titled to the whole thirty-feet road, and to the minerals 
 under it : thus giving him a right to a wall of coal 
 thirty feet wide between the mines of the lord on the 
 one side and on the other. But the Court of Appeal 
 considered that the quarter of the space, or seven feet 
 and a half, which had been left all along for the public 
 footpath, still belonged to the lord ; and that, as to 
 that portion, there had been no adverse possession, the 
 encroachment not reaching so far. They, therefore, 
 held the plaintiff to be entitled, not to a wall of coal
 
 154 PKESCRIPTIVE IIIGHTS. 
 
 thirty feet wide, but to a wall of coal tliii'ty feet, minus 
 seven and a half, or twenty-two and a half feet, mde. 
 Cases of this sort show how important it is for the 
 owners of waste lands to see that no encroachments are 
 made upon them. A strip of cabbage garden, a few 
 yards wide, may be of little importance ; but a wall of 
 coal a few yards wide may be of the greatest impor- 
 Commoners tance, when mines come to be worked. Twenty years 
 ba^ed after adversB possession not only barred the owner of the 
 twenty years. gQ^}^ "^^i^ ^Iso all persons having rights of common over 
 >' the land encroached on. And if the encroachments 
 
 had been gradual, that part which had been inclosed 
 for twenty years was discharged of all rights of common, 
 though that which had been inclosed for a less time 
 was not (o). On the 1st of January, 1879, the new 
 Statute of Limitations came into operation {p), and the 
 period of twenty years given by the late Act {q) was 
 Now barred reduced to twelve years. I cannot help thinking that 
 it is a pity that in this respect our legislature has not 
 followed the example of some other countries, and made 
 a distinction between bond fide though mistaken acqui- 
 sitions for valuable consideration, and acquisitions by 
 purely wrongful acts, which I think our law now rather 
 tends to encoiu-age. 
 
 Tiiru-hlu V. There is a case of TyncldU v. Wi/nne {r), in which 
 
 jFi/zi/ic. ^^^ plaintiff brought an action of tres^^ass for breaking 
 
 down a wall, and the defendant pleaded that the place 
 ' in which the alleged trespass was committed was his 
 own soil and freehold. The plaintiff had recently pur- 
 cliased a farm in Wales, consisting of about sixty acres 
 of arable land; and the question was whether he was 
 entitled to the soil of the locus in quo, or only to a right 
 of common thereon. And the plaintiff produced no 
 
 (o) Taplei/ V. IValnicright, 5 B. (7) Stat. 3 & 4 Will. 4, c. 27. 
 
 & Adol. 395. {)■) 2 B. & A. 554. 
 
 {p) Stat. 37 & 38 Vict. c. 57. 
 
 after twelve 
 years
 
 RIGHTS OF LORD. 155 
 
 documentary evidence or title deeds, but rested his case 
 
 on the proof of various acts of ownership on the place Freehold in 
 
 in question, by owners of the farm for sixty years, by ^v a^ts^f 
 
 feeding sheep exclusively thereon, cutting trees, turf, owuersliip. 
 
 and fern, and granting leave to other persons to do so. 
 
 The defendant, Sii' AV. TV. Wynne, claimed the soil and 
 
 freehold of the land as lord of the manor, and proved ' 
 
 different acts of enjoyment by shooting repeatedly by 
 
 himself and gamekeeper, without interference, on the 
 
 premises in question, and also by collecting and taking 
 
 estrays, and forbidding the burning of the gorse grow- •> 
 
 iug thereon. The jury at the trial found a verdict for 
 
 the plaintiff, and the Court refused a rule for a new 
 
 trial. The main question in the case seemed to have 
 
 been with regard to the rejection of certain evidence 
 
 put in on behalf of the defendant. But the case is 
 
 a very strong one to show that if the lord permits other 
 
 persons to cut trees or turf on the waste without his 
 
 leave, or to exercise other acts of ownership thereon, he 
 
 may in time lose his freehold. There is, however, a case 
 
 oi Attorney-General Y.Rcreley, in the Exchequer — which Att.-Gen. v. 
 
 is not reported in the usual Eeports, but a report of ■^'^'■'^^^y- 
 
 which has been printed, though not published, by 
 
 Mr. W. W. Karslake, who was counsel for the Crown 
 
 in the case — in which it was held that the exclusive Appropriation 
 
 I £. r\ 1 PI j_ • • by tenants of 
 
 enjoyment of the pasturage of sheep on a certam piece parts of 
 of uninclosed land for upwards of sixty years, was not common, 
 of itself evidence of ownership of this piece of land as 
 against the Crown, who was lord of the manor, lb 
 was proved that the piece of land in question was 
 anciently part of a w^aste which belonged to the Crown ; 
 and acts of ownership on the part of the Crown were 
 proved on other parts of the waste. It appeared in 
 evidence in that case that it was the custom in Wales 
 for farmers, who had rights of common on a waste, to 
 appropriate the common amongst themselves for the 
 pm-pose of pasturing theii' sheep on those parts of the
 
 156 PRESCRIPTIVE RIGHTS. 
 
 common most convenient to their respective homesteads ; 
 and it was inferred that the exclusive occupation of the 
 parcel of land in question by the owners and occupiers 
 of an adjoining farm was referable to such a custom. 
 Eall V. Byron. And in the recent case of Hall v. Byron {s), before Yice- 
 Chancellor Hall — which related to the commons of the 
 parish of Coulsdon, near Croydon, in the county of 
 Surrey — it appeared in evidence that it was the custom 
 of the farmers, who had rights of common on the waste, 
 to agree amongst themselves to appropriate certain de- 
 fined portions of the waste for the sheep of certain par- 
 ticular farms ; and these limits so marked out between 
 themselves were strictly observed. Upon the strength 
 of these agreements, it was endeavoured, on the part 
 of the lord, to confine the rights of the tenants of the 
 manor to common only on those portions of the waste 
 which were adjacent to their respective tenements. But 
 the Com't held that the tenants had the usual right of 
 common appendant in respect of their tenements ; and 
 that the circumstance of the shej^herds having parcelled 
 out the waste amongst themselves was no evidence of 
 any restricted right in the tenants ; but that, on the 
 contrary, their rights of pasture extended over the whole 
 of the wastes within the manor. In that case, as in 
 many others, the manor and parish were conterminous. 
 
 Stiuis. In some cases the right of common is stinted or 
 
 limited to a certain number of cattle and sheep, accord- 
 ing sometimes to the extent, and sometimes to the 
 yearly value of each tenement. It does not follow in 
 these cases that the right of common, the exercise of 
 which is thus restricted, is not common appendant. 
 "We have seen, on the authority of Lord Coke, that an 
 upland town may make' bye-laws for the regulation of 
 its commons (/). And when, as now most frequently 
 
 (a) 25 AV. K. 317; L. 11., 1 (/■) Co. Litt. 110 b; aiih; p. 49. 
 
 Gh. D. GG7.
 
 STINTS. 157 
 
 happens, a common is claimed by the tenants of a 
 manor, it is clear that such tenants may make bye -laws 
 touching their commons, which will bind themselves, 
 and by immemorial custom, will bind all the other 
 tenants of the manor; but of course this cannot bind 
 strangers. The law on the subject of bye-laws is col- 
 lected in Sc riven on Copyholds {n). In the case of 
 Aston and Coat, to which I drew your attention the 
 other day {;x), the right of common on Coat common or 
 moor was limited to four rother beasts and forty sheep 
 for every yard land; and so in proportion for any less 
 quantity. In the case of Ellard v. Ilill {//) the prescrip- n/lard v. If in. 
 .tion was that every yard land within the vill should 
 havd common for twelve cows ; and for a quarter yard, 
 three cows; and for half a quarter a cow and a half, as 
 I mentioned in a former Lecture (z) . The case of 3Iorse ^^orse and 
 and Wehh (a) is an example of a stint of four rother 
 beasts, two horse beasts, and sixty sheep in respect of 
 two yard lands. In that case it was held that if so No common, 
 small a parcel of the land to which the right of common parJeTof laxid. 
 belongs be demised, which will not keep one ox nor 
 a sheep, then the whole common shall remain with the 
 lessor. And it was said that there is no difference when 
 the prescription is for cattle levant and couchant, and 
 when for a certain number of cattle levant and couchant. 
 In Epping Forest the number of cattle, which the 
 tenants of the townships or parishes within the forest 
 might put on, was limited according to the rental of 
 each tenement. Every tenant had a right to put on one 
 mare or gelding or two cows in respect of every 80.§. 
 annual rent. This stint was proved in the Epping 
 Forest case {h) . The stint also appears in the case of 
 
 («) Scriv. Cop. part 3, Ch. 20, («) 13 Eep. 33. 
 
 s. 4. {/)) The Commissioners of Sewers 
 
 (.r) Ante, p. 86. v. Glassc, L. E., 19 Eq. 134, 
 
 (//) Siderfin, 226. 161. 
 
 (.:) Ante, p. 49.
 
 158 
 
 PRESCRIPTIVE RIGHTS. 
 
 Taliner v. 
 
 Stone. 
 
 Fox V. Am- 
 hurst. 
 
 Pahner v. Stone (c), wliicli was a question as to a riglit 
 of common upon the forest. And in The CoiJDJiissioiiers 
 of Scirers v. Glasse the Court held that this right was 
 merely the measure of levancy and couchancy, — in fact, a 
 convenient method of measuring the number of cattle 
 which each tenement had a right to put on. So in the 
 manor of Plackney, Middlesex, called the Lord's Hold, 
 a stint was fixed by a bye-law made by the homage of 
 so many head of cattle according to the rental of each 
 tenant. And portions of the common lands having 
 been taken compulsorily for waterworks and railway 
 and other purposes, the compensation paid for the rights 
 of common was divided amongst the commoners accord- 
 ing to the stint, in the recent case of Fox v. Amhurst (cl). 
 So in the recent case of ITall v. Bijron (e) bye- 
 laws were put in evidence, made at different Courts 
 baron, to the effect that no tenant should put upon the 
 waste more than one sheep per acre. But this again 
 was considered by the Coui't to be merely a convenient 
 measure of levancy and couchancy. And the Court 
 decreed that the tenants had a right of common of 
 pastm'e for their cattle levant and couchant upon their 
 respective lands (/). , 
 
 Presentments 
 by homage. 
 
 In some cases presentments are made by the homage 
 with respect to the right of some particular tenement to 
 put cattle upon the waste. These presentments are of 
 little value if a constant user be shown contrary to such 
 presentment. This occurred in the case of Anindell v. 
 Viscount Fal mouth (r/), to which I have already re- 
 ferred {h). In that case it was proved that Brimpton 
 Farm, containing about 273 acres, formed part of the 
 demesne of the manor of Brimpton, and that there had 
 been an uninterrupted usage, for a long series of years, 
 
 ((•) 2 Wils. 9G. (/) L. K, 4 Ch. D. C73, G81. 
 
 {d) L. R., 20 Eq. 408. (f/) 2 M. & S. 410. 
 
 (r) L. R., 4 Ch. D. GG7. \h) Ante, p. 150.
 
 STINTS. 159 
 
 for the occupiers of tliat farm to turn out the cattle, 
 which had wintered there, on the marshes in question, 
 and which wpre inclosed under the authority of an 
 Inclosure AfJt. There was no evidence to oppose this, 
 but some presentment^ by the homage restricting the 
 right to three head of cattle ; but these presentments 
 had never been acted on. The jury found that the 
 defendant, the lord of the manor, was entitled under 
 the Act, in right of Brimpton Farm, to an allotment in 
 respect of the depasturing of cattle upon the marshes, 
 over and above such allotment as he might be entitled 
 to in respect of his right as lord of the manor to the soil 
 of the marshes. The Court held that the presentments 
 of the homage were entitled to no weight ; they were in 
 their origin decidedly for the interest of those who 
 made them, and were made against the rights of a 
 person, who was not entitled to bo heard ; and they 
 were not followed up by any act. There is also a case 
 of Chapman v. Co?r/r/;« (/), which was an action on the Chapman v. 
 case by a copyholder against a freeholder of the manor 
 of Crowle in Lincolnshire, for the disturbance of the 
 plaintiff's right of common, by the defendant sur- 
 charging the common. An old parchment agreement 
 was produced by the steward of the manor, dated in 
 1G98, which purported to be signed by many persons, 
 copyholders, stating " an unlimited right of common, 
 which having been found inconvenient, they had agreed 
 to stock the common in a certain manner, under which 
 the plaintiff claimed, in respect of a messuage and thirty 
 acres of land, common in a part of commonable ground of 
 the manor called the Stinted Cowpasture, for six cows, six 
 mares or geldings if above three years old, and for 
 sucking foals of such mares, levant and con chant upon 
 the said messuage and lands, upon and from May-day 
 old style unto and to Michaelmas-day old style. There 
 was also another parchment writing to the same effect 
 dated 1717. A nonsuit was directed at the trial, and 
 (0 13 East, 10.
 
 160 rRESCRlPTIVE RIGHTS. 
 
 on motion to set aside the nonsuit, tlie Court lield that 
 these instruments were evidence at least of the repu- 
 tation of the manor, at that time, as to the prescriptive 
 right of common, against the right set up by the plain- 
 tiff. Lord Ellenborough, 0. J. said, "It destroys the 
 right insisted upon by the plaintiff by showing what 
 the prescriptive rights of the copyholders were before. 
 And, as an agreement, it could have no effect to bind 
 subsequent copyholders, but only those who executed it. 
 It will be better to recur to the original right of common 
 as restricted by levancy and couchaney." And the 
 Court refused a rule to set aside the nonsuit ; being of 
 opinion, as you see, that the agreements signed by the 
 copyholders were evidence of an ancient right of com- 
 mon for cattle levant and couchant upon theii' tene- 
 ments, which ancient right was not defeated by the 
 agreement for stinting the common to which many of 
 the copyholders had come. 
 
 Bill of peace. When the rights of the commoners are denied by the 
 lord, the most effectual remedy is a bill of peace, or 
 now an action in the nature of a bill of peace, brought 
 by one of the commoners on behalf of himself and the 
 others against the lord, for the purpose of establishing 
 theu' rights. An early case on this subject is that of 
 
 roivcU\. Powell V. Earl of Poms and others (l). The plaintiffs in 
 
 oj ouis. ^j^^^ ^^^^ were freehold tenants of the manor of Clun in 
 the county of Salop, and claimed right of common 
 throughout a certain forest or waste parcel of the honor 
 or lordship of Clan called the forest of Clan. Earl 
 Powis, the lord of the manor, had inclosed certain 
 portions of the forest, and had granted the parts so 
 inclosed to the other defendants, who were in possession 
 of them. The plaintiffs, a short time before the filing 
 of the bill, broke down the fence of the parts so in- 
 closed, for the purpose of exercising their commonable 
 
 {1} 1 You. & Jerv. 159.
 
 BILL OF PEACE. 161 
 
 rights. The defendants commenced their action of 
 trespass against them. The bill of the plaintiffs 
 prayed that the rights of common of the plaintiffs, and • 
 the other freehold tenants of the honor or lordship, 
 might be estabhshed, and that the plaintiffs and their 
 tenants might be quieted in such rights ; that the Earl 
 of Powis might be restrained from inclosing any part of 
 the forest, to the prejudice of the plaintiffs and their 
 tenants, and from obstructing or molesting them in 
 their commonable rights, and for an injunction against 
 the action of trespass brought by the other defendants. 
 To this bill the defendants demurred. Lord Chief 
 Baron Alexander overruled the demurrer, saying, "The 
 cases establish that a bill may be brought by a lord 
 against his tenants, and by tenants against the lord, in 
 respect to rights of common. It is a bill of peace, and 
 to prevent multiplicity of actions. The dicta and cases 
 show that it is no objection to this bill, that the defen- 
 dants may each have a right to make a separate defence, 
 provided there be only one general question to be 
 settled, which pervades the whole. It would be against 
 all the cases to allow this demurrer : it would put the 
 bill out of Court." This case was followed by Lord 
 Romilly, the late Master of the EoUs, in the case of 
 Smith V. Earl Brownlow [m), to which I have already Smith -v. Earl 
 called your attention (n). The bill in that case was ■^'"^^'"^ ''"'• 
 filed on behalf both of the freehold and of the copyhold 
 tenants of the manor of Berkhamstead, the manor in 
 which was situate the common there in question. And 
 this was followed by the case of Wancick v. Queen'' s TFanvickv. 
 CoIIerje, Oxford (o), decided by Lord Eomilly, Master of Q"^^"'*^''^^^^^- 
 the EoUs, and affirmed on ajopeal by Lord Hather- 
 l^y (p)- This case related to the manor of Plumstead 
 in the county of Kent, of which Queen's College, 
 Oxford, were the lords. And the bill was filed by 
 
 (»») L. R., 9 Eq. 241. (o) L. E., 10 Eq. 105. 
 
 («) A7ite, p. 135. Ip) L. E., 6 Ch. 71G. 
 
 W.P. M
 
 162 
 
 PRESCRirTIVE RIGHTS. 
 
 Beits V. 
 ThomjJson. 
 
 tliree persons on behalf of themselves and all other the 
 freehold tenants of the manor of Plumstead against the 
 College as lord of the manor, praying for a declaration 
 of the rights of the freeholders. In this manor there 
 were no copyholders ; all the tenants were freehold 
 tenants. And a decree was made in their favour 
 establishing a right of pasture upon all the commons in 
 the manor, and some other rights claimed by them. 
 This was followed by the case of Betts v. Thompson {q), 
 in which the bill was filed by a freehold tenant of the 
 manor of Tooting Gravoney, in the county of Surrey, 
 on behalf of himself and all other owners of freehold 
 tenements within the ambit or former ambit of the 
 manor, to establish rights of common against the lord. 
 It was proved that the plaintiff and the other freehold 
 tenants within the present ambit of the manor had 
 commonable rights, and that the copyholders of the 
 manor had also commonable rights. But it was not 
 proved that the owners of freehold tenements within 
 the former ambit had such rights. It was held that 
 the joining as plaintiffs the owners of freehold tene- 
 ments within the former ambit amounted merely to a 
 misjoinder of plaintiffs, and did not prevent the Court 
 from making a decree under the bill. It was also held 
 that though the plaintiff might have sued on behalf of 
 the copyholders also, if they had rights co-extensive 
 with those of the freeholders, he was able to maintain 
 his bill on behalf of the freeholders alone. 
 
 Commissioners 
 of Sewers v. 
 Glasse. 
 
 The case of The Coiimiasioners of Sewers v. Glasse {)■), 
 to which I have before referred («), is a similar instance 
 of a representative suit. In that case the bill was filed 
 by the plaintiffs on behalf of themselves and all other 
 the owners and occupiers of lands and tenements lying 
 within the Forest of Essex, other than the waste lands 
 of the forest, except such of them as were defendants, 
 
 (.s) Ante, p. 54. 
 
 (v) 
 
 R., 6 Ch. 732. 
 E., 19 Eq. 134.
 
 BILL OF PEACE. 163 
 
 or were In tlie bill alleged to be sufficiently represented 
 by the defendants or some of them. Objection was 
 taken to the form of the suit on the ground that the 
 bill was on behalf of owners and occupiers. And a 
 demurrer to the bill was put in accordingly, but the 
 demiuTcr was overruled by Lord Romilly, then Master 
 of the Rolls, and his order overrilling the demurrer was 
 affirmed on appeal by the Lord Justices James and 
 Mellish (t). Lord Justice James observed that the 
 case was in accordance both with precedents and prin- 
 ciple. " It is the case," he said (u), " of a bill filed by 
 a person or persons claiming a general right against 
 several persons claiming several rights to have that 
 general right ascertained. To determine whether there 
 is any foundation for this claim, we of course on the 
 present occasion must take the allegations in the bill as 
 being admitted ; and if those allegations _ are well 
 founded, and can be proved by sufficient evidence, it 
 seems to me that it is far better that the whole case 
 should be tried in a Chancery suit, in which all persons 
 interested in disputing the right claimed by the bill can 
 join in making a defence, the costs of which, if they 
 combine, cannot be very oppressive, and where the 
 general right can be tried once for all as between the 
 persons interested on the one side and the persons 
 interested on the other side, than that it should be 
 tried by the only other proceedings I know of. One of 
 such proceedings would be the bringing actions against 
 every one of the trespassers for the disturbance of the 
 rights of common. If it was done in that way, there 
 might be thousands of actions brought ; because every 
 one of the occupiers claiming the right of common 
 could bring an action against every one of the persons 
 who has made an encroachment. The only other 
 
 {t) Commissioners of Sewers v. {u) Page 464. 
 
 Glasse, L. R., 7 Cli. 456. 
 
 M 2
 
 164 PRESCRirTIVE RIGHTS. 
 
 proceeding would Le that, if the inclosiires are an en- 
 croacliment and a nuisance to the forest, a person 
 entitled to common might, if he could do it without 
 committing a breach of the peace, sweep away the walls, 
 hedges and fences, and put the occupiers to bring 
 actions for trespass. Supposing that course to be re- 
 sorted to, the commoner, if reasonable, would give 
 notice that he was going to demohsh the fences, and 
 then the lord or the tenant who was threatened might 
 file his bill to restrain him from doing so, and no doubt 
 the destruction of property would be restrained by this 
 Court ; but of course only in such a way as that the 
 real question should be tried in the suit in which the 
 injunction was obtained." .... " Then it is said that 
 the allegations are not sufficient ; that is to say, that the 
 allegation of title to the right of common is on behalf of 
 owners and occupiers. G(dcH-ar(Vs case (.r) and other cases 
 have been cited for the pm'pose of showing that no such 
 right as this can be claimed by custom. Of com-se it is 
 settled and clear law that you cannot have any right to 
 a profit a prendre in alieno solo in a shifting body like 
 the inhabitants of a town, or residents of a particular 
 district. But construing the allegations here according 
 to their plain meaning, it appears to me that, if they 
 were judged most strictly, the allegation here is of a 
 right of common in the owners and occupiers of lands 
 in respect of those lands, for it is in express terms 
 claimed as a right of common either appendant or 
 appurtenant for their cattle levant and couchant upon 
 the tenements. That is an allegation of a right of 
 common not unknown to the law — a right of common 
 which is alleged as being appurtenant to land, and of 
 com-se claimed by persons who are either owners or 
 occupiers of the land, in respect of which that easement 
 
 (x) C Ecp. 59 b; nnte, ii. 13.
 
 BILL OF PEACE. 165 
 
 is claimed. It appears to me that the occupiers have a Eights of 
 right to join and to be joined in any suit in this Court °^^"P^^^- 
 for that purpose. The occupier alone is entitled, during 
 the continuance of his occupancy ; he may be an 
 occupier for a long term of years ; and he may be the 
 only person substantially interested in the assertion of 
 the right. Therefore I cannot conceive that there is 
 any objection to joining owners and occupiers in this 
 way in their character of quasi co-plaintiffs and as 
 persons on behalf of whom the right is alleged." Lord 
 Justice Mellish was of the same opinion. He con- 
 sidered that the right of common in the forest was 
 one which legally might exist. " The main objection," 
 he said, " which was taken was, that the right was 
 alleged in the occupiers, and that the occupiers could 
 not have such a right. There is no doubt that the 
 occupiers simply as such could not have the right ; but 
 looking at the allegations in the bill it appears to me 
 that the right is substantially alleged in the owners on 
 behalf of themselves and the occupiers." " The rights 
 granted to the owner have been enjoyed by the owner 
 and occupier. Of course the occupiers are the persons 
 who de facto enjoy the right, although that right is 
 gained to them thi'ough its belonging to the owner 
 from whom they get their estates." " When the bill 
 mentions the plaintiffs and their predecessors in title 
 and their respective tenants, and then adds and the 
 other owners and occupiers, I think that clearly means 
 the other owners and their tenants under them. There- 
 fore it appears to me that the right in that respect is 
 quite rightly laid." 
 
 Having now spoken of the means by which a right 
 of common appendant may be enforced, I now proceed 
 to the means by which it may be lost. Of course this 
 right, lilce every other right, may bo given up by a
 
 166 
 
 Release. 
 
 Abandon- 
 ment. 
 
 PRESCRIPTIVE RIGHTS. 
 
 release by deed to tlie owner of the soil; but if not 
 released, the right, when it has once been established, 
 continues until on sufficient evidence it is held that the 
 tenant has abandoned his right. The question of aban- 
 donment is eminently a g juestio n of fact for the considera- 
 tion of a jury. Of course non-user for a comparatively 
 short time, if it be coupled with evidence that the non- 
 user was accompanied with a desire or determination to 
 abandon or give up altogether the right of common, 
 would be sufficient evidence of abandonment. But 
 with regard to mere non-user a long continued ceasing 
 to put on cattle, is not necessarily evidence of an inten- 
 tion to abandon. There is no doubt that the change, 
 which has taken place in the modes of agriculture in 
 the present day, has rendered common of pasture far 
 less valuable than it was formerly. The breeds of 
 sheep now in use are many of them far too valuable to 
 be intrusted beyond the bounds of the farm. And the 
 placing of horses and cows to feed upon a common was 
 more the custom in times gone by than it is now. Few 
 persons would be so imprudent as to place a valuable 
 hunter or carriage horse on an open common simply for 
 the benefit of the pasture which he might pick up. 
 Grenerally speaking I think it may be laid down that 
 non-user for less than twenty years would hardly be 
 considered sufficient of itself to prove an abandonment 
 unless accompanied by other cii'cumstances. And non- 
 user for more than that period may not amount to an 
 abandonment if properly explained {//). 
 
 If the commoner purchase the waste his right of 
 common is of course extinguished. And if he should 
 take a lease of the waste his right of common would be 
 suspended during the lease. Common appendant does 
 not however become extinguished, if the owner of the 
 
 {>/) WardY. Ward, 7 Ex. 838.
 
 APPORTIONMENT. 167 
 
 tenement, in respect of wliicli the right of common is 
 exercised, should purchase a portion of the waste. He 
 would still have his right of common appendant over 
 the other part. The common appendant will in this Apportion- 
 case be apportioned, because it is of common right, and ™®^*^ 
 will not be totally extinguished ; whereas common appur- appendant, 
 tenant is said not to be of common right, and so, not 
 being favoured by the law, is held to be extinguished 
 altogether by the purchase by the commoner of any 
 part of the waste.
 
 168 
 
 PRESCRirTIVE RIGHTS. 
 
 LECTURE XII. 
 
 Commou a\>- 
 piu-tenant is 
 agaiust com- 
 mou right. 
 
 Donkeys, 
 goats, swine 
 and geese. 
 
 Pannage. 
 
 Grant. 
 
 Appurtenants 
 pass by con- 
 veyance of 
 tenement. 
 
 We now come to the consideration of common ap- 
 piu'tenant. Common appendant is of common right, 
 but common appurtenant is said to Tbe against common 
 right. Common may become appurtenant to lands 
 either by reason of long user, or by grant express or 
 implied. All common of pasture acquired by long 
 user, which is not common appendant, is common ap- 
 purtenant. Thus although donkeys, goats, swine and 
 geese are not commonable animals, yet a right to put 
 them upon a common or waste may be acquired by 
 long user. With regard to swine, in old times the 
 right of putting them into woods to feed on the acorns 
 and mast of beech trees was a very usual right, and 
 was called the right of pannage or pawnage ; but in the 
 present day the right has almost become obsolete. In 
 Manwood's Forest Law there is a whole chapter about 
 pawnage (a). The right of pawnage or pannage of the 
 woods within the king's forests, was under the direction 
 of officers called agistors of the forests ; but such rights 
 are rarely claimed in modern times. Common ap- 
 purtenant may be created by express grant. A grant 
 to a man and his heirs, owners and occupiers of a 
 certain farm, of a right to depasture on a certain waste 
 so many cattle or sheep, or as many cattle and sheep as 
 are levant and couchant upon the tenement, is a grant 
 of common appurtenant. And from and after the 
 grant the right of common becomes appurtenant to the 
 tenement, and passes from owner to owner by a con- 
 veyance of the tenement with the appurtenances, and 
 even without the word " appurtenances ; " for by grant 
 
 («) Manwood, cli. 12.
 
 COMMON APPURTENANT. 169 
 
 of any subject, that which is appendant or appurtenant 
 to it, will by implication pass also. Thus it is laid 
 down by Lord Coke {h), "Whatsoever passeth by livery 
 of seisin either in deed or in law, may pass without 
 deed ; and not only the rents and services parcell of the 
 manor shall with the demeans as the more principal 
 and worthy pass by livery without deed, but all things 
 regardant, appendant and appurtenant to the manor, as 
 incidents or adjuncts to the same shall, together with 
 the manor, pass without deed ; all which, as here it 
 appeareth and elsewhere is said, shall pass without 
 saying cum periinentus." Now, as you know, every 
 feoffment must be evidenced by deed(c); but the law as 
 to appurtenances remains the same. 
 
 The question sometimes arises as to what words will Wliat words 
 
 ^ re • 1 1 1 111 I sufficient to 
 
 be sutncient to create a common appurtenant by grant, create com- 
 If a right of common, though not appendant or appur- ^^°^ appur- 
 tenant to a tenement, has been usually enjoyed there- grant, 
 with, then a grant of the tenement, with all commons 
 and commonable rights therewith used or enjoyed, will 
 operate as a fresh grant of the right of common. This 
 was decided in the case oi Bradshaw v. Eyre{d). A Bradshmv v. 
 lease was made of a house and twenty acres of land, ^^^' 
 with all commons, profits and commodities thereto 
 appertaining, or occupied or used with the said mes- 
 suage. The lease was made by one Nicholas Brad- 
 shaw, who was the owner of the common, and prior to 
 the lease he had taken a feoffment of the farm in 
 question, which had previously enjoyed a right of 
 common, so that the common was extinguished by 
 unity of possession. But the Court held, that the 
 words in the lease " with all commons, &c. occupied or 
 used with the messuage," were a good grant of a new 
 common for the time ; for, although it was not common 
 
 (i) Co. Litt. 121b. {d) Cro. Elk. 570. 
 
 (f) Stat. 8 & 9 Vict. c. 106.
 
 170 
 
 PRESCRIPTIVE RIGHTS. 
 
 Worlcdg v. 
 Kingswel. 
 
 Copyholder 
 enfran- 
 chising-. 
 
 iu the hands of the feoffor, yet it was qua^i common 
 used therewith ; and although it be not the same 
 common as it was before, yet it is the like common. 
 But because there was not a sufficient averment, that 
 this common was used by the lessee at the time of 
 the lease, it passed not {e). Again in the case of 
 Worlcdg v. Kiiujfiircl (./), a copyhold of a manor, which 
 had common in part of the demesnes of the manor, 
 escheated to the lord, and the lord by deed granted it 
 to another in tail " with all commons whatsoever to the 
 same belonging or in any way appertaining or with the 
 same messuage used." And it was resolved by all the 
 Com-t that the donee in tail should have such common 
 as the copyholder had, although the ancient common 
 had determined by unity of possession in the lord. 
 The grant was held to enure as a new grant of the 
 same common. When a copyholder, who has rights of 
 common in respect of his tenement, takes a conveyance 
 of the fee simple thereof from the lord of the manor by 
 way of enfranchisement, the ancient rights of common, 
 which were by custom only, are thenceforth gone at 
 law(r7), unless revived by the use in the deed of 
 enfranchisement of such words as " together with all 
 commonable rights therewith used or enjoyed " (//). 
 But in equity it is said that the common rights 
 remain (i), on the ground, I presume, that the intention 
 is that the tenant by enfranchising should lose no right 
 he had before, but should g-ain the freehold in addition. 
 
 Lost grant of As commou appurtenant may be claimed as well by 
 
 right of grant within time of memory as by prescription, and as 
 
 a grant may be lost, a grant of common as appiu'tenant 
 
 (c) Sec also Hall v. Byron, L. [h) Gnjmcs v. Teacock, 1 Bulst. 
 
 E., 4 Ch. D. 667, 671, 672. 19. 
 
 (/) Cro. Eliz. 794. {I) 8tyant v. Stakcr, 2 Veru. 
 
 ((/) 3Iarisham v. Hiaikr, Cro. 2o0. 
 Jac. 253.
 
 COMMON APPURTENANT. 
 
 171 
 
 will iu some cases be presumed after long enjoyment. 
 Thus in the case of Coiclamy. Slack {k), the plaintiff Cowiamv. 
 declared that he was possessed of a messuage in the 
 parish of Crowle, in the county of Lincoln, and by 
 reason thereof he had common of pasture for all his 
 commonable cattle, levant and couchant upon his said 
 messuage and land, in certain large wastes in the parish, 
 as belonging and appertaining to his said messuage and 
 land ; and then alleged a grievance to him by the de- 
 fendant's sm-charging the common and waste grounds. 
 A third count in his declaration, more general, stated 
 the plaintiff's lawful possession, at the time of the 
 grievance, of the messuage and land with the appur- 
 tenances, and that by reason thereof he was entitled of 
 right to common of pasture throughout all the com- 
 monable waste grounds in the parish of Crowle, for all 
 his commonable cattle levant and couchant upon his 
 last-mentioned messuage and land with the appur- 
 tenances, without claiming such right of common as 
 belonging and appertaining to his messuage and land. 
 It appeared that the plaintiff, his father and grandfather 
 had occupied the manor house and farm for about fifty 
 years past, during all which time they had constantly 
 stocked and enjoyed the common. But it appearing 
 also upon cross-examination that the messuage and 
 farm were so held by the plaintiff and his ancestors 
 as tenants to the lord of the manor, the objection was 
 taken that neither the lord nor his tenants could have 
 a right of common upon the lord's own soil ; but that 
 the unity of possession extinguished the common ; and 
 the learned judge, being of that opinion, nonsuited the 
 plaintiff. A rule however was obtained to set aside the 
 nonsuit ; and after much consideration the nonsuit was 
 set aside by the Court, and a new trial granted. Lord 
 EUenborough said that there did not appear to be any 
 material difference in point of legal effect between the 
 {k) 15 East, 108.
 
 172 
 
 PRESCRIPTIVE RIGHTS. 
 
 claims of common as made in these several counts ; in 
 all the claim is in substance a claim of common appur- 
 tenant to the closes in respect of which the common is 
 claimed. And the only question upon the argument 
 of which the Court wished fui'ther to consider, was 
 whether common appurtenant, for which, as is said in 
 the text of Co. Litt. 122, one must prescribe, is, as 
 suggested in the notes of the learned commentators, 
 also claimable by grant as well as by prescription. 
 And, after going through several authorities, the Coui't 
 came to the conclusion that, it appearing that common 
 aj)purtenant, such as was claimed by the plaintiff's 
 declaration, may be created by modern grant, it was 
 proper that the jury should have had the usage in this 
 case left to them as a foimdation, whereupon they might 
 or might not, according as the evidence of enjoyment 
 would have warranted them, have presumed such a 
 grant to have been made by the lord to the plaintiff, or 
 his father, as would have sustained the right claimed of 
 common appurtenant in respect of their lands. And as 
 this was not done, the Court was of opinion that the 
 nonsuit should be set aside, and a new trial granted. 
 It would seem therefore that, although the right may 
 have commenced within legal memory, yet after long 
 enjoyment, it may be presumed that a grant was made, 
 which grant has now been lost. 
 
 But undoubtedly the usual method of claiming com- 
 mon appurtenant is by prescription from long enjoy- 
 ment ; and when a claim of this kind is made by any 
 person, not as one of a class, such as the tenants of 
 a manor, or the tenants of a township, but simply in 
 consequence of long enjoyment, ho must, unless a lost 
 grant can be presumed, either be prepared to have his 
 claim negatived by its being shown that it has arisen 
 within time of legal memory (/) ; or else he must avail 
 {I) See ante, p. 5.
 
 THE PRESCRIPTION ACT. 173 
 
 himself of the provisions of the Prescription Act, 2 & 3 Tho Prescrip- 
 "Will. IV. c. 71, sometimes called Lord Tcnterdcn's 2'*& 3 wm.'^ ' 
 Act, to which I now call your attention. The Act is IV- c. 7i. 
 intituled " An Act for shortening the Time of Prescrip- 
 tion in certain cases." It begins by reciting that the 
 expression " from time immemorial or time whereof the 
 memory of man runneth not to the contrary," is now 
 by the law of England in many cases considered to 
 include and denote the whole period of time from the 
 reign of King Eichard the first, whereby the title to 
 matters that have been long enjoyed is sometimes de- 
 feated by showing the commencement of such enjoy- 
 ment; which is in many cases productive of inconvenience 
 and injustice. And it enacts {in) that no claim, which 
 may be lawfully made at the common law by custom, 
 prescription or grant, to any right of common or other 
 profit or benefit, to be taken and enjoyed from or upon 
 any land of the king, his heirs or successors, or any 
 land being parcel of the Duchy of Lancaster, or of the 
 Duchy of Cornwall, or of any ecclesiastical or lay person, 
 or body corporate, except such matters and things as 
 are therein specially provided for; and except tithes, 
 rent and services, shall, where such right, profit or 
 benefit shall have been actually taken and enjoyed by 
 any person claiming right thereto, without interruption, 
 for the full period of t/iirf// ijecrrs, be defeated or Thirty years' 
 destroyed, by showing only that such right, profit or '^'^•1°^°^^'^ • 
 benefit was first taken or enjoyed at any time prior to 
 such period of thirty years ; but nevertheless such claim 
 may be defeated in any other way by which the same 
 is now liable to be defeated; and when such right, 
 profit or benefit shall have been so taken and enjoyed 
 as aforesaid for the full period of ski// years, the right Sixty years' 
 thereto shall be deemed absolute and indefeasible, unless enjoyment, 
 it shall appear that the same was taken and enjoyed by 
 some consent or agreement expressly made or given for 
 
 (wO Sect. 1.
 
 174 
 
 rEESCRIPTIVE RIGHTS. 
 
 Next before 
 some action 
 or suit. 
 
 What is an 
 interniption. 
 
 General alle- 
 gation, when 
 sufficient. 
 
 Allegation of 
 enjoyment by 
 occupiers. 
 
 that purpose by deed or writing. And it enacts {n) 
 tliat each of the respective periods of years before men- 
 tioned shall be deemed and taken to be the period next 
 before some suit or action, wherein the claim or matter, 
 to which such period may relate, shall have been or 
 shall be brought into question ; and that no act or 
 other matter shall be deemed to be an interruption 
 within the meaning of this statute, unless the same 
 shall have been or shall be submitted to or acquiesced 
 in for one year after the party interested shall have had 
 or shall have notice thereof, and of the person making 
 or authorizing the same to be made. It also enacts (o) 
 that in all actions upon the case and other pleadings 
 wherein the party claiming may now by law allege his 
 right generally without averring the existence of such 
 right from time immemorial, such general allegation 
 shall still be deemed sufficient ; and if the same shall be 
 denied, all and every the matters in this Act mentioned 
 and provided, which shall be applicable to the case, 
 shall be admissible in evidence to sustain or rebut suck 
 allegation ; and that in all pleadings to actions of 
 trespass, and in all other pleadings wherein, before the 
 passing of the Act, it would have been necessary to 
 allege the right to have existed from time immemorial, 
 it shall be sufficient to allege the enjoyment thereof as 
 of right by the occupiers of the tenement, in respect 
 whereof the same is claimed, for and during such of the 
 periods mentioned in the Act as may be applicable to 
 the case, and without claiming in the name or right of 
 the owner of the fee, as is now usually done ; and if the 
 other party shall intend to rely on any proviso, excep- 
 tion, incapacity, disability, contract, agreement or other 
 matter before mentioned, or on any cause or matter of 
 fact or of law, not inconsistent with the simple fact of 
 enjoyment, the same shall be specially alleged and set 
 forth in answer to the allegation of the party claiming, 
 («) Sect. 4. (o) Sect. 5.
 
 THE PRESCRIPTION ACT. 175 
 
 and shall not be received in evidence on any general 
 traverse or denial of such, allegation. And the Act 
 further provides {p) that in the several cases mentioned 
 in and provided for by the Act, no presumption shall 
 be allowed or made in favour or support of any claim, 
 upon proof of the exercise or enjoyment of the right or 
 matter claimed, for any less period of time or number 
 of years, than for such period or number, mentioned in 
 the Act, as may be applicable to the case and to the 
 nature of the claim. And, further ((7), that the time 
 during which any person, otherwise capable of resisting 
 any claim to any of the matters before mentioned, shall Exceptions of 
 have been or shall be an infant, idiot, non compos mentis, ^^ ^'^^^' 
 feme covert or tenant for life, or during which any 
 action or suit shall have been pending and which shall 
 have been diligently prosecuted, until abated by the 
 death of any party or parties thereto, shall be excluded 
 in the computation of the periods before mentioned, 
 except only in cases where the right or claim is thereby 
 declared to be absolute and indefeasible. So that in 
 case of an enjoyment for thirty years only, the fact that 
 the owner of the servient tenement has been, during 
 part of that time, under disability or tenant for life, or 
 that an action or suit has been pending and diligently 
 prosecuted during part of the time, will prevent the 
 thirty years' time being sufficient to establish the claim. 
 There must have been thirty years' enjoyment, irre- 
 spective of any disability, or of any pending action or 
 suit, on the part of the party entitled to resist the 
 claim. But the fourth and the seventh sections of the The fourth 
 Act are to be read together, so that the thirty years s^c*tionrto be 
 " next before some suit or action," mentioned in the read together, 
 fourth section, may be made up of two periods, com- 
 prising together thirty years, one commencing more 
 than thirty years before the suit or action, and ending 
 with the commencement of a tenancy for life of the 
 [p) Sect. G. {q) Sect. 7.
 
 176 
 
 PRESCRIPTIVE RIGHTS. 
 
 After sixty 
 years' enjoy- 
 ment no al- 
 lowance for 
 any dis- 
 ability. 
 
 servient tenement, and tlie other commencing at the 
 expiration of the tenancy for life, and ending at the 
 commencement of the suit or action (r). Where, how- 
 ever, an enjoyment as of right for sixty years can he 
 shown, there, by the 1st section the right is to be deemed 
 absolute and indefeasible ; and, by the 7th section, in 
 that case no allowance is made either for any disability 
 or tenancy for life, or for the time during which an 
 action or suit may have been pending and diligently 
 prosecuted. 
 
 Claim must 
 be lawful. 
 
 Mill V. Com- 
 missioners of 
 
 Neiv Forest. 
 
 The claim under this statute must be one which may 
 be lawfully made at the common law, by custom, pre- 
 scription or grant. If, therefore, the claim is an un- 
 lawful one, actual enjoyment for thirty or even sixty 
 years will not avail under this statute. Thus, in the 
 case of Mill v. The Commissioners of the New Forest (s), 
 it appeared that by statute 9 & 10 Will. III. c. 36, 
 an Act relating to the New Forest, it was enacted {t)^ 
 that, in case any person or persons whatsoever should 
 presume to take, or should obtain, any gift, grant, 
 estate or interest of and in the inclosure or wastes of 
 the New Forest, or any woods or trees growing thereon, 
 every such gift, grant or interest should iftso facto be 
 null and void. And by a subsequent statute of 1st 
 Anne, st. 1, c. 7, s. 5, the Crown was restricted from 
 making leases, beyond thirty-one years or three lives, 
 of any of the lands belonging to the Crown. The 
 forest belonged to the Crown. An allotment of waste 
 land had been made to the plaintiff, under an Inclosure 
 Act passed in 1810, and in respect of this allotment 
 the plaintiff claimed a right of common of pasture in 
 the waste lands of the forest, and a right of pannage in 
 the open woods of the forest ; and he proved an en- 
 joyment of the right claimed for the full period of 
 
 (r) Clayton v. Corby, 2 Q. B. 
 
 813. 
 
 (.s) 18 C. B. 60. 
 (C) Sect. 10.
 
 THE rRESCKirXION ACT. 177 
 
 thirty years, as of riglit and witliout interruption, as 
 provided by tlie statute 2 & 3 Will. lY. c. 71, s. 1. 
 But the Court held that the claim could not be sup- 
 ported ; because there could not be any grant to the 
 plaintiff from the Crown of any right of common ; 
 seeing that the Crown was by statute incapacitated 
 from making any such grant. It was impossible that 
 any legal grant of the right could have existed ; the 
 user therefore for thirty years was of no avail. So in 
 the case of TJte Attornoj-Gcncml v. Mathias {u), the Att.-Gcn. v. 
 Court was of opinion that no user however long could ^^^^'■''''^■ 
 establish a right which was unlawful in itself. The 
 right claimed in that case was a right for the de- 
 fendants, as woodwards or foresters of the Crown, to 
 grant to certain free miners, gales or licences for 
 making stone quarries in inclosed land, part of the 
 Forest of Dean, the soil whereof was in the Crown, and 
 to exact gale fees or rents in respect thereof, and to 
 apply the same to their own use, without accounting to 
 the Crown. The Court held that no length of user 
 could establish such a right. 
 
 Again, the user must be by a person claiming right User must be 
 thereto. It must not be by leave or licence granted at ciaimin^'^'' 
 any time during the period. And, as a person cannot ^^s^^- 
 claim a right against himself, if it be shown that, ^^uo^'claim 
 during any part of the prescribed period, the claimant right against 
 himself has been owner of the waste or other servient 
 tenement upon which the right of profit d jjreiidi-e is 
 claimed, such time must be excluded from the period 
 of thirty years, or sixty years, as the case may be. In 
 the case of Warbiwton v. Parke (.r), there was a claim TFarburton v. 
 of the enjoyment of a right of common for thirty years -P'^'*^^- 
 under the statute, and also for sixty years. But, as it 
 appeared that the claimant had been owner in fee of 
 the farm, in respect of which his right of common was 
 
 {a) 4 Kay & J. 579. (.r) 2 Hurl. & Norm. 64. 
 
 W.P. N
 
 178 PRESCRIPTIVE RIGHTS. 
 
 claimed, and had been also tenant for life and occupier 
 of the common, over which the right was claimed, 
 dimng a large portion of these periods, it was held that 
 the statute could not assist him ; and it was also held 
 that, as he could not have an enjoyment as of right 
 against himself, within the meaning of the statute, so 
 neither could his tenants of the farm in question. 
 
 The right must have been actually taken and enjoyed, 
 by a person claiming right thereto, without interruption. 
 User of for the full period of thirty years. It is not necessary, 
 
 common over ^^^ obviously would often be impossible, to prove the 
 part of waste, exercise of a right of common over the whole of a waste, 
 " Where the spot in question is parcel of a larger tract, 
 it is sufficient to show user over that larger tract. But 
 the evidence must be that the right has been so used 
 over the larger tract, that, taking into account all the 
 circumstances, the contiguity of the spot to those on 
 which the right has been exercised, its hability for the 
 exercise of the right, and all the other circumstances, 
 the jury may reasonably infer that the right extended 
 over the whole of the larger tract, including the spot in 
 question." The law on this subject is thus laid down 
 by Mr. Justice Patteson in the case of Peanlon v. ITn- 
 derhlll (//) ; and I have simply quoted his language. In 
 the case of a right of common, it does not appear to be 
 absolutely necessary that evidence should be given of 
 Cesser of user the exercise of the right every year; provided the cesser 
 of exercise can be accounted for^. as by the fact that, for 
 a year or two, the owner or his tenants had no common- 
 able cattle to put upon the waste. This was decided in 
 Qarr v. Tester, the case of Carv V. Fostcr {£). In that case tlie plaintiff 
 claimed a right of common in respect of a farm called 
 Mealingscales, of which he was tenant; and he proved a 
 continued user of such right by the tenants of Mealing- 
 scales for nearly forty years next before the commence- 
 {>j) 16 Q. B. 120, 123. (c) 3 Q. B. 581.
 
 THE rRESCRIPTION ACT. 179 
 
 ment of the action ; except that, about cigliteen years 
 back, the owner of the farm had it for two years in his 
 own hands, and, having no commonable cattle, made no 
 use of the common during that period. The Lord Chief 
 Justice Denman left it to the jury to say, whether the 
 tenants of Mealingscales had substantially enjoyed the 
 right of common for thirty years next before the com- 
 mencement of the action. A verdict was given for the 
 plaintiff. And a rule for a nonsuit or for a new trial, 
 upon the ground that the verdict was against tlie weight 
 of evidence, was discharged by the Court of Queen's 
 Bench. Lord Denman, Chief Justice, observed, that 
 " the words of section 1 are ' without interruption,' not 
 without intermission. And the intermission must be 
 a matter open in every case to explanation. Sect. 6 
 enacts, that no presumption shall be made in favour of 
 any claim, on proof of the right having been exercised 
 for a less period than that prescribed by the Act in the 
 particular case. But that provision is meant only to 
 encounter presumptions, from an exercise of the right 
 during such an imperfect period, that it was exercised 
 in older times. The effect of the clause is, that a 
 claimant, proving enjoyment for less than the specified 
 time, shall not, on that ground, carry back his right to 
 a period before that which his proof extends to. But 
 this does not affect the mode of proof : and, where actual 
 enjoyment is shown before and after the period of inter- 
 mission, it may be inferred from that evidence that the 
 right continued during the whole time." Mr. Justice 
 Patteson observed, " It is suggested that the argument 
 for the plaintiff might apply equally if there were a 
 cesser for seven years. I am not prepared to say that 
 it would not. It might be that, under the circum- 
 stances, the party had no occasion to use the right. The 
 question would always be for the jury. So long an in- 
 termission would be a strong piece of evidence against 
 the continued right ; but it would be for them to deter- 
 
 N 2
 
 180 PRESCRIPTIVE RIGHTS. 
 
 mine. The Act makes no provision for sncli a case, 
 sect. 6 relating only to the non-presumption of right, 
 at a period antecedent to that over which the proof 
 extends." Mr. Justice Williams was of the same 
 opinion: " Interruption," he said, "means an obstruction 
 not a cesser or intermission or anything denoting a 
 mere breach in time. There must be an overt act, 
 indicating that the right is disputed. Before the 
 statute, in cases relating to common, it was very usual 
 to explain the ceasing to turn on cattle by the fact that 
 there were not at the time commonable cattle to turn on. 
 No necessary inference arises from a cesser during two, 
 three or seven years. In this particular case enjoyment 
 for the requisite period was abundantly made out." In 
 
 Loive V. the case of Loive v. Carpenter (a), which was a case of a 
 
 right of way under other sections of the statute, which 
 require twenty or forty years' user, the Coui't held, that 
 some user must be shown to have been exercised in the 
 year in which the action was brought. Baron Parke 
 expressed an opinion that some act of user ought to be 
 shown to have been exercised at least once a year. 
 However that was a case, not of a right of common,' 
 
 Lord St. hut of a right of way. And on this case. Lord St. 
 
 LoivcY. Leonards has the following remarks in his Essay on the 
 
 Carpenter. i>eal Property Acts(/j). "The point decided in this 
 important case was, that there must have been an user 
 sometime in the year next before the commencement of the 
 action. This is a strict construction of the statute, where, 
 after long enjoyment, although there has been no actual 
 user within the last year, which might be accounted for, 
 there has been no interruption, that is, in such a case, 
 no attempt to prevent the user, — for examj)le, putting a 
 lock on a gate. But it would be found difficult to sup- 
 port the proposition that there must be proved to have 
 been an actual user every year during the twenty or 
 forty years. This case shows the necessity, where time 
 
 {«) G Ex. 82.'j. {h) Page 177, 2iid ed.
 
 THE PRESCRIPTION ACT, 181 
 
 constitutes the title under the statute, not to omit the 
 exercise of the right in any one year, for every neglect 
 will expose the claimant to the loss of the easement." 
 In the case of BaUeij v. Applef/ard (c), a right of com- Baikyv. 
 mon of pasture was set up by the plaintiff by reason -^ -'^^^ ^'^"" • 
 of thirty years' enjoyment under the statute. But, it 
 having been proved that in the year 1809, which was 
 twenty-eight years only before the commencement of 
 the action, a rail had been erected which prevented 
 access of cattle from the plaintiflE's land to the common 
 in question (which rail had been removed in conse- 
 quence of an agreement), it was held that the proof of 
 enjoyment before that time could not be brought in aid 
 to make up the period of thirty years. It was left to 
 the jury to say whether there had been substantially an 
 enjoyment for thii'ty years, or for twenty-eight only. 
 And a verdict having been found for the defendant, a 
 rule for a new trial on the ground of misdirection was 
 refused by the Court. 
 
 The enjoyment must, according to the fourth section Tlm-ty or 
 of the statute, have been for thirty or sixty years next sixty years 
 
 ' ^ "^ . next beiore 
 
 before some action or suit wherein the claim or matter some action 
 shall have been or shall be brought into question. 
 Accordingly in the case of Richards v. Fry {d), which Richards y. 
 was an action of trespass, it was held that the right '^* 
 ought to have been claimed by the defendant to have 
 been used by him for thirty years next before the com- 
 mencement of the suit, instead of for thirty years next 
 before the time when the alleged trespass was com- 
 mitted. A special demurrer was taken to a plea, which 
 thus set out the claim as a defence to the action. And 
 on argument judgment was given for the plaintiff. 
 This is an apparent absurdity, and has been more than 
 once so characterised by the Courts. As was remarked 
 
 (c) 8 Ad. & Ell. 161. {(l) 7 Ad. & Ell. 698.
 
 182 
 
 PRESCRirXIYE RIGHTS. 
 
 JJ'ard V. 
 Hob ins. 
 
 hy Baron Parke in the case of IFard v. Robins {d), with 
 reference to the period of twenty years provided in 
 other cases, "An enjoyment for twenty years or more 
 before the act complained of gives only what may be 
 termed an inchoate title, Avhich may become complete or 
 not by an enjoyment subsequent, according as that 
 enjoyment is or is not continued to the commencement 
 of the suit." 
 
 F/iffld V. 
 Thomas. 
 
 Acquiescence 
 in interrup- 
 tion for a 
 year. 
 
 Bcnnison v. 
 Cartwr'ujld. 
 
 The interruption must have been submitted to or 
 acquiesced in for one year, after the party interrupted 
 shall have had notice thereof, and of the person making 
 or authorizing the same to be made. In the case of 
 Flight V. TJioiiuis, in the House of Lords (c), which was 
 a case on the section of the Act which relates to window 
 lights, it was held that an interruption of the enjoy- 
 ment, in whatever period of the twenty years it may 
 happen, cannot be deemed an interruption within the 
 meaning of the Act, unless it is acquiesced in for a 
 whole year. And in the case of Benniso)i v. Cart- 
 wrigld (/), the Court of Queen's Bench held that an 
 interruption is not necessarily acquiesced in because no 
 action or suit is brought in respect of it. Non-acquies- 
 cence may be shown by other acts, as by correspondence 
 between the solicitors of the parties, the question of 
 acquiescence being a question of fact to be determined 
 ^y a jury. 
 
 Extingiiisli- 
 ment of com- 
 mon appiu'- 
 tenant. 
 
 Tyrringltant' s 
 case. 
 
 Common appurtenant being, as I said {g), against 
 common right, is extinguished if the ownership of the 
 land, in respect of which the right of common is 
 claimed, becomes united with the ownership of any part 
 of land, over which the right of common is exercised. 
 This was the point decided in Tijrvingham^8 case (//). 
 
 {(l) 15 M. & W. 237, 242. 
 (c) 8 CI. &Fin. 231. 
 (/) 5 Best k Smith, 1. 
 
 (-/) Aide, p. 168. 
 (/*) 4 Kep. 38.
 
 COMMON APPURTENANT. 183 
 
 The right of pasture was unluckily claimed in that case 
 as belonging to a meadow or pasture. And it was held 
 that, as common appendant is in respect of land 
 anciently arable, although it might afterwards have 
 become meadow or pasture, this common, being claimed 
 only in respect of a meadow or pasture, must be com- 
 mon appurtenant ; and, being common appurtenant, it 
 was totally extinguished by reason of the owner of part 
 of the common having purchased the tenement to which 
 the right of common belonged. Common appurtenant, Apportion- 
 
 1 T, 1 J. 1 meut of com- 
 
 however, as well as common appendant may be appor- ^^^ appur- 
 tioned, in case part of the dominant tenement, in respect tenant. 
 of which the right is claimed, come into the hands of 
 one person, and another part into the hands of another 
 person. Each person shall, in such case, exercise his 
 right of common, in respect of the land belonging to 
 himself, according to the number of beasts and sheep 
 or other cattle levant and couchant upon his part of the 
 tenement. 
 
 It is often said there are four kinds of common. Common by 
 
 ^, , . , , T reason of 
 
 Common appendant, common appurtenant, common by yicinao-e. 
 reason of vicinage and common in gross. Common by 
 reason of vicinage was in its origin merely an excuse 
 for trespass, in a case where two wastes, on which two 
 distinct classes of persons have common of pasture 
 adjoin one another without any boundary fence existing 
 between them ; so that the cattle of one class of com- 
 moners stray upon the waste which belongs to the other 
 class. The nature of this right is a good deal gone 
 into by the present Master of the Eolls in his judgment 
 in the Epping Forest case, Coiimiissioiwrs of Scirci-s v. Commissioners 
 Glassc {i). Commons by reason of vicinage can only ''^i^sse''.''^ ^' 
 exist between two classes of commoners. It cannot 
 
 (i) L. R., 19 Eq. 134, 159—162. See also Cajie v. Scott, L. R., 
 9 Q. B. 269.
 
 184 PRESCRIPTIVE RIGHTS. 
 
 exist between two private estates (/>■). Each class must 
 turn out upon their own common, and cannot turn out 
 upon the common of their neighbours. Each class must 
 put on so many cattle as their own common will main- 
 tain, and no more ; and if the one class inclose their com- 
 mon against the others, the others' right to common by 
 vicinage is extinct. There must, however, be an actual 
 inclosm-e ; otherwise the neighbours' cattle will still be 
 excused from trespassing on the waste. 
 
 Common in Common in gross, is common which a man has, irre- 
 
 spective of the ownership or occupation of any tene- 
 ment. It may be created by the owner of a common 
 appurtenant, for a fixed number of cattle, alienating his 
 common appurtenant, without the tenement to which it 
 belongs. It is held to be immaterial to the owner of 
 the waste, when the right is fixed and stinted to a 
 certain given number of cattle, whether those cattle are 
 put on in respect of a tenement, or by a person who 
 owns no land(/). Common appendant, however, for 
 cattle levant and couchant upon a tenement and com- 
 mon appurtenant in like manner for cattle levant and 
 couchant upon a tenement, cannot be severed from the 
 tenement, and aliened so as to become common in 
 gross (m) . Common in gross, as you have already 
 seen (»), is not within the statutes of Merton and West- 
 minster the Second, by which the lord is enabled to 
 inclose, leaving a sufiiciency of common. Common in 
 gross may also be created by express grant to a man 
 and his heirs of a right to put on so many cattle on the 
 lands of the grantor, either at all times of the year, or 
 
 (/<;) Jones v. Hobin, 10 Q. B. Dajiiel v. Sanslip, 2 1iev. 67. 
 681, 620. (»() Brury v. Kent, Daniel v. 
 
 [1) Drury v. Kent, Cro. Jac. Uansllp, uhi siq). 
 15; Spooncr v. Day, Cro. Cai-. {n) Ante, i^.Wi. 
 
 432 ; Viu. Abr. tit. Common (0.) ;
 
 COMMON IN GROSS. 185 
 
 at certain times. It is said also that a grantor may 
 grant to his grantee a right to put an unlimited nimiber 
 of cattle into the lands of the grantor. Common in 
 gross may also be claimed by prescription from long 
 user by a man and his ancestors, whose heir he is, in the 
 same manner as we have seen in former Lectures (o), 
 that a right of exclusive pasture may be so claimed. 
 The right of common in gross is not within the Pre- 
 sentation Act {jj), as that relates only to cases in which 
 there is a dominant as well as a servient tenement (q) ; 
 but, when created, it is an incorporeal hereditament, 
 grantable by deed. 
 
 (o) A)ife, pp. 9, 10. {q) SJiuttlcivorth v. Le Fleming, 
 
 {p) Stat. 2 & 3Wm.IV. C.71; 19 C. B.,N. S. 687. 
 ante, p. 173.
 
 186 
 
 PllESCllll'Tl^■E lllGHTS. 
 
 Common of 
 other matters 
 thau pastiu'e. 
 
 First, things 
 renewable. 
 
 Secondly, 
 things not 
 renewable. 
 
 LECTURE XIII. 
 
 We now come to the consideration of common in respect 
 of other matters than pasture. These may be classed 
 generally under two heads : — first, the right of taking 
 such matters as, in the course of nature, may be renewed ; 
 such as wood or peat for fuel, or fern and gorse, either 
 for fuel, or for fodder for cattle, for the foundation of 
 haystacks, and other agricultural purposes ; and secondly, 
 the right of taking such things as, in the course of 
 nature, are not renewable ; such as sand, gravel, clay, 
 loam, coals and other minerals. 
 
 Common of First witli respect to common of estovers, turbary 
 
 ^ '^^^^'''' and the like. Common of estovers, as I mentioned in 
 
 a former Lecture {a), is the right of cutting timber, 
 underwood, gorse or furze, and such like, for fuel to 
 burn in the house, or for the repairs of the house and 
 farm buildings, hedges and fences, and instruments of 
 husbandry. This right to take fuel to burn in a house, 
 if claimed by prescription, must be claimed in respect 
 of an ancient house ; for prescription is a title acquired 
 by user, from time whereof the memory of man runneth 
 not to the contrary. And it is evident that no such 
 user can possibly take place except in an ancient house. 
 Luiird's case. The law on this point is laid down in LnttrcVs case {b), 
 where it is said, " If a man has estovers, either by 
 grant or prescription, to his house, although he alters 
 the rooms and chambers of this house, as to make a 
 parlour where it was the hall, or the hall where the 
 parlour was, and the like alteration of the qualities, and 
 
 Ancient 
 house. 
 
 (rt) Ante, p. 18. 
 
 (i) 4 Rep. 8G, 87.
 
 COMMON OF THINGS IIKNEWABLE. 187 
 
 not of the liouse itself, and without making new chim- 
 neys, by which no prejudice accrues to the owner of the 
 wood, it is not any destruction of the prescription ; for 
 then many prescriptions will be destroyed ; and, although 
 he builds new chimneys, or makes a new addition to 
 his old house, by that he shall not lose his prescription ; 
 but he cannot employ or spend any of his estovers in 
 the new chimneys, or in the part newly added." And 
 in Coster and WingfielcVs C((se{c), the Court all agreed Coster and 
 "that he who set up again a new chimney, where an case. '^ 
 old one was before, should have estovers to the said new 
 chimney ; and so if he build a new house upon the 
 foundation of an old house, that he should have com- 
 nom to his said house newly erected ; so, if a house 
 falleth down, and the tenant or inhabitant sets up a 
 new house in the same place." Common of turbary is Common of 
 a species of common of estovers, being the right to take ^^^' 
 peat or tm'f , which has become by course of time fit for 
 bm'ning, and not green turf, for the purpose of using 
 the same for fuel in a messuage ; and, when claimed by 
 prescription, it must be claimed also in respect of an 
 ancient messuage, for the reason I have just stated. It 
 is not, however, necessary in the pleadings to mention House 
 the messuage as an ancient messuage, as that would be indent, 
 intended if the contrary were not shown {d) . In the 
 case of Clarkson v. Woodlwuse {e), a custom was pleaded, ciarkson v. 
 showing that divers ancient messuages within the manor ^° """^' 
 of Stalmine, in the county of Lancaster, had common 
 of turbary upon the waste or common called Stalmine 
 Moss, to dig and take turves in and upon the said waste 
 or common, except such parts as had been inclosed or 
 approved, as after mentioned, for their necessary fuel to 
 be burned and consumed in their respective messuages 
 every year at all time of the year as occasion required, 
 and also common of pasture throughout the waste 
 
 ((■) 2 Leou. 44, 45. Jac. 2oG. 
 
 {(l) Dote ff lass V. Kindal, Cro. (e) 5 T. Rep. 412, n.
 
 188 PRESCRIPTIVE RIGHTS. 
 
 (except such parts as had beeii approved and inclosed) 
 for all their commonable cattle levant and couchant 
 upon the said respective messuages and lands. And a 
 custom was pleaded for the owners of the waste by 
 themselves or their superintendent of the waste, called 
 the moss reeve, from time immemorial, to assign to the 
 several owners and occupiers of such ancient messuages 
 and lands, upon their reasonable request in that behalf, 
 certain reasonable parts and proportions of the said 
 Moss dales. waste or common commonly called moss dales, to be 
 by them respectively held in severalty, exclusive of all 
 others, for digging and getting turves thereon for their 
 necessary fuel to be burned and consumed in such their 
 respective messuages every year and at all times of the 
 year, as to such theu' respective messuages belonging and 
 appertaining, and that the respective owners and occupiers 
 of such ancient messuages got such turves in their re- 
 spective moss dales, and in no other part of the waste, so 
 long as any turbary remained in the moss dales so' set 
 out ; and when and so often as the turbary of such moss 
 dales so assigned had been got and cleared therefrom, 
 the owners of the waste had inclosed and approved to 
 themselves all such moss dales or parts of the common 
 or waste called Stalmine Moss, as had been cleared as 
 aforesaid, commonly called the following ground thereof, 
 and to hold the same in severalty for ever afterwards, 
 freed and discharged from all common of turbary and 
 pasture thereon. This was held to be a reasonable 
 custom. The fuel was to be used in the messuage. 
 The grant was advantageous to both lord and tenant. 
 And the judgment was affirmed in the Exchequer 
 Chamber (/). 
 
 In addition to the right of taking wood, peat and 
 other matters for fuel, and to the right of taking 
 timber for repairs, may be the right of taking fui'ze, 
 (/) 5 T. Rep. 415, u.
 
 COMMON OF THINGS RENEWABLE. 189 
 
 fern, and otlier matters for fodder and litter for cattle Fodder, 
 and other purposes. There may also be the right ^^' ''^' 
 which I mentioned in a former Lectui'e {g) of 7Jrt?r;;f/£/e 
 or jmnnage ; that is, a right of taking acorns and mast 
 of beech trees by the mouths of swine turned out into 
 the woods to feed there. This, however, is a species of 
 common of pasture. In the recent case of Smith v. Smith v. Earl 
 Earl Brownloic{h), the following rights were established ^'•<'^'«^'''^- 
 by the decree. The words of the decree are not set out 
 in the report, but I have been furnished with a copy 
 of it. It is dated the 14th January, 1870, and it is as 
 follows, so far as regards the declaratory part : " His 
 Lordship doth declare that the plaintiff, and the other 
 freehold and copyhold tenants of the manor of Berk- 
 hamstead in the amended bill mentioned, except any 
 tenants whose rights have been purchased by the 
 present or late defendant, are entitled, as to the right of 
 pasture for commonable cattle as appendant, and, as to 
 all other rights of pasture and commonable rights, as 
 appurtenant, to their respective freehold and copyhold 
 tenements, held of the said manor, to the following 
 common rights, viz. a right of common of pastm^e upon Common of 
 Berkhamstead Common in the amended bill mentioned, ^^^ ^^' 
 and so much of the four pieces of waste in the amended 
 bill mentioned as now remains uninclosed, for all com- 
 monable cattle levant and couchant on theu- tenements, 
 and to a right oi jmnnage, and to a right to cut so much Pannage, 
 furze, gorse, fern and underwood upon the said com- To cut fui-zc, 
 mon, and so much of the said four pieces of waste as °* 
 now remains uninclosed, as may be required for the 
 purpose of fodder and litter for all commonable cattle 
 and swine, levant and couchant on their tenements, and 
 for fuel, and other purposes of agriculture and hus- 
 bandry, necessary for the beneficial and profitable en- 
 joyment and use of their said tenements." A similar To cut 
 right of cutting and taking away brackens, or ferns, to ^^^ ^^^' 
 
 {cj) Ante, p. 168. (Ji) L. R., 9 Eq. 211.
 
 190 PRESCRIPTIVE RIGHTS. 
 
 be used and consumed on the estate, from tlie commons 
 
 within the town and hamlet of Ulverstone, also occurs 
 
 in the case of IloIIinshead v. Walton (i). And in the 
 
 Warrick V. recent case of JFarricIc v. Queen'' s College, Oxford {k), 
 
 College. similar rights were established. The decree runs as 
 
 follows : " His Lordship doth declare that the plaintiff 
 
 John Warrick and the other freehold tenants of the 
 
 manor of Plumstead in the county of Kent are entitled, 
 
 as to the right of pasture for commonable cattle to a 
 
 right of common as appendant, and as to all other 
 
 rights of pastm-e and other common rights to a right of 
 
 common as appurtenant to their freehold hereditaments, 
 
 held of the said manor, and that such rights extend to 
 
 Common of a right of pasture upon the commons called respectively 
 
 cattle. °^ ' Plumstead Common and Bostal Heath for all sorts of 
 
 cattle levant and couchant, as well commonable as 
 
 To cut turf others, and that they are also entitled to cut turf for 
 
 °^ ^^'^ ' use as fuel in their dwelling-houses, and to cut such 
 
 To cut furze, „ , „ J 1 • 1 1 
 
 &c. iiu-ze, gorse and lern upon the said commons as may be 
 
 required for fuel to be consumed on the said heredita- 
 ments so held by them, and for the purpose of fodder 
 and litter for cattle levant and couchant on the said 
 hereditaments, and doth order and declare the same 
 accordingly." 
 
 Claims must Claims of this sort, when made in respect of a mes- 
 able!^^°^" suage or tenement, must be reasonable ; and the things 
 which are claimed to be taken must be spent or used 
 upon the tenement in respect of which they are claimed. 
 The claim must be reasonable. Thus in the case of 
 Wjhonx. Wilson V. Willes (l), the tenants of the manor of 
 
 Hampstead claimed a customary right for all the 
 customary tenants, having a garden or gardens, parcel 
 of their tenements, to dig and carry away from the 
 heath, by themselves and their farmers and tenants 
 
 (i) 7 East, 485. (/) 7 East, 121. 
 
 {k) L. R., G Ch. 71G.
 
 COMMON OF THINGS RENEWABLE. 191 
 
 respectively, occupiers of siicli customary tenements 
 with the appurtenances, to be used and spent in and 
 upon their said customary tenements for the purpose 
 of making and repairing grass plats in the gardens, 
 parcels of the same respectively, for the improvement 
 thereof, such turf covered with grass fit for the pasture 
 of cattle, as hath been fit and proper to be so used and 
 spent, every year at all times in the year as often and 
 in such quantity as occasion hath requu-ed, as to their 
 said customary tenements with the appurtenances 
 respectively belonging and appertaining. Another 
 plea alleged more generally the same right in the 
 customary tenants, the tm-f to be used and spent in and 
 upon their customary tenements, in and for the im- 
 provement of the gardens, parcels of the same respec- 
 tively, without confining the improvements to the 
 making and repairing of grass plats. The third plea 
 alleged a similar right in the customary tenants to dig, 
 take and carry away turf, to be used and spent in and 
 upon their customary tenements, for the purpose of 
 making and repairing the banks and mounds in, of, and 
 for the hedges and fences thereof. A fourth plea laid 
 the custom still more generally to be, for the customary 
 tenants to take the turf from the locus in quo, as often 
 and in such quantity as the occasion required, to be 
 used and spent upon their customary tenements re- 
 spectively for the improvement thereof. To all these 
 special pleas there was a general demurrer and joinder 
 on the part of the plaintiff. And the Court gave 
 judgment for the plaintiff, thereby allowing the de- 
 murrer to all the pleas. Lord Ellenborough, Chief 
 Justice, said, " A custom however ancient must not be 
 indefinite and uncertain ; and here it is not defined 
 what sort of improvement the custom extends to : it is 
 not stated to be in the way of agricultiu-e or horti- 
 culture : it may mean all sorts of fanciful improve- 
 ments : every part of the garden may be converted 
 into grass plats, and even mounds of earth raised and
 
 192 PRESCRIPTIVE RIGHTS. 
 
 covered wltli turf from the common : there is notliing 
 to restrain the tenants from taking the whole of the 
 tni'bary of the common and destroying the pasture 
 altogether. A custom of this description ought to have 
 some limit ; but here there is no limitation to the 
 custom as laid but caprice and fancy. Then this privi- 
 lege is claimed to be exercised v/hen occasion requires. 
 What description can be more loose than that ? It is 
 not even confined to the occasions of the garden. It 
 resolves itself, therefore, into the mere will and pleasure 
 of the tenant, which is inconsistent with the rights of 
 all the other commoners as well as of the lord. The 
 third special plea also is vastly too indefinite : it goes 
 to establish a right to take as much of the tm'f of the 
 common as any tenant pleases, for making banks and 
 mounds on his estate : it is not even confined to pur- 
 poses of agriculture. All the customs laid therefore 
 are bad, as being too indefinite and uncertain." 
 
 Must be spent Not Only must the right claimed be reasonable and 
 
 tenement. definite, but it must also be claimed for the purpose 
 of being spent or used upon the tenement, in respect 
 
 Valentine v. of which it is claimed. Thus in the case of Valentine 
 cnny. ^^ Penny {m), in an action of trespass the defendant 
 
 justified that he and all those whose estate he had in a 
 cottage, have used to have common of tiu'bary, to dig 
 and sell ad Uhifiim, as belonging to the house. And it 
 was adjudged that it was an ill plea; for a common 
 appertaining to a house ought to be spent in the house 
 
 JTaj/irai-d v. and not sold abroad. So in the case of Haytcard v. 
 anmnrj on. Qannington (which is perhaps best reported in the second 
 volume of Keble's Eeports (»)) in an action of trespass, 
 the defendant justified by a prescription for as much 
 turf as two men can dig in fourteen days, by reason of 
 an ancient messuage ; and did not say to be spent in the 
 messuage ; to which the plaintiff demurred ; and the 
 dcmm'rer was allowed by the Court, judgment being 
 
 {m) Noy, 145. («) Pages 290, 311.
 
 COMMON OF THINGS RENEWABLE. 193 
 
 given for tlie plaintiff. The Court all agreed that in 
 the ease at bar it must be alleged to be spent in the 
 messuage. It was argued that the claim was sufficiently 
 certain, being as much as two men can dig in fourteen 
 days ; but, in addition to the certainty, the Court also 
 required that, as the claim was made in respect of a 
 messuage, the matter claimed should be spent in the 
 house. In the report of the same case in Siderfin (o), Siderfin's 
 the claim is stated to be a claim on the part of the ^"^P^"^^- 
 defendant that he is seised of an ancient messuage, and 
 that he and all those whose estate he has, &c. have had 
 fourteen days' digging of turf in the place where, &c. 
 as to the said messuage pertaining. And in the report 
 of the same case in Levinz (79), the plea is stated to be Levinz's 
 a plea on the part of the defendant that he is seised of ^'^^°^^- 
 an ancient house, and prescribes to have so many turves 
 every year as two men could dig in a day, as belonging 
 to his messuage. But all the reports agree that judg- 
 ment was given for the plaintiff. So the case of Bailei/ Bailey v. 
 V. StepJiens (q) was an action of trespass for breaking '^^^p^'^"^- 
 and entering into a close of land of the plaintiff's, called 
 Short Cliff Wood, and cutting down two trees of the 
 plaintiff then and there standing and growing, and con- 
 verting the same to the defendant's use. The defendant 
 pleaded several pleas ; amongst others that, at the time 
 of the alleged trespass, William York was seised in his 
 demesne as of fee, of and in a certain close called Bloody 
 Field, immediately adjoining the said close of the 
 plaintiff, and that the said William York, and all those 
 whose estate he had, and his and theii' tenants, had from 
 time whereof the memory of man runneth not to the 
 contrary, enjoyed the right, at their free will and 
 pleasure, to enter, by themselves and their servants, 
 upon a part or strip, to wit, a lug fall (or perch) of the 
 said close of the plaintiff, adjoining the said close of the 
 
 (0) Page 354. {(j) 12 C. B.,N. S. 91. 
 
 (;;) 1 Lev. 231. 
 
 w.r. o
 
 194 
 
 PPtESCRirXlVE RIGHTS. 
 
 said "William York, for the purpose of cutting down 
 and carrying away, and to cut down and carry away, 
 and convert to liis and their own use, the trees and 
 wood growing and being on the said strip or lug fall, as 
 to the said close of the said "William York appertaining ; 
 and that the alleged trespass was committed by the 
 defendant as the servant and by the authority of one 
 James Emery, who was lessee of the close called Bloody 
 Field from William York. Other pleas stated a user 
 for sixty years, for thirtj^ years, and also a grant by 
 deed of the same right, but which grant was alleged to 
 be lost. To all these pleas the plaintiff demiu-red, on 
 the ground that the plea showed no defence to the 
 action, and claimed too large a right; and of this 
 opinion was the Coui't. The claim, you will observe, 
 was a claim, by the owners and occupiers of the defen- 
 dant's close, to cut down the trees on the plaintiff's 
 land, and to sell and dispose of them at pleasure, 
 wholly irrespective of any use to be made of them on 
 the land of the defendant. If the claim had been to 
 cut the wood for the pm'pose of repairing the fences of 
 the close called Bloody Field, or for any reasonable 
 purpose of agriculture connected with that field, it 
 would have been good. But this was simply a claim 
 for the owners and occupiers of one close, always to cut 
 wood growing upon another close, for any purpose 
 whatsoever ; and such a claim is too wide, and therefore 
 bad in law. 
 
 Claim of 
 I)rofit h 
 jjreucli'e can- 
 not bo mado 
 by custom. 
 Selbi/ V. 
 Robinson. 
 
 I have already mentioned (r) that, except in the case 
 of a copyholder, which of necessity forms an exception 
 to the general rule (.s), no claim of a jirofit a prendre in 
 alieno solo can be made by custom, nor can it be claimed 
 Ijy a fluctuating body such as the inhabitants of a place. 
 Thus in the case of Sclhy v. Bohinson (t), which was an 
 
 (?•) Ante, p. 13. 
 (a) Ante, p. 17. 
 
 (0 2 T. Rep. 758. See also 
 Chilton V. Corporation of London,
 
 COMMON OF THINGS RENEWABLE. 195 
 
 action of trespass for entering the plaintiff's close and 
 cutting down wood, the defendant pleaded a custom, 
 that all and every the poor, necessitous and indigent Poor house- 
 householder and householders, residing and abiding ^^"^*^^i''^- 
 within the township of Whaddon, in the parish of 
 "Whaddon in the county of Bucks, from time imme- 
 morial had used and been accustomed at his and their 
 free will and pleasure, standing upon the ground within 
 the chase of Whaddon, as well with their hands as 
 with wood hooks, to break off, gather, pick up, take 
 and carry away, from and out of Whaddon chase 
 aforesaid, as well the rotten wood of and belonging to 
 the boughs and branches of the trees standing and 
 growing on the said chase, as the rotten wood broken 
 and fallen off from the boughs and branches of the said 
 trees, there standing and growing, and found upon the 
 ground within the said chase, for necessary fuel, to be 
 used, burned and consumed in his and their respective 
 dwelling-houses, in the township of Whaddon aforesaid. 
 The Court thought that it was impossible to support 
 the custom as thus set out, and that the question was 
 too clear for discussion. It might perhaj)S have been 
 otherwise if the defendant could have stated on the 
 record that he was seised of a certain ancient tenement, 
 and so prescribed in a que estate; because that would be 
 limiting the benefit claimed to the house, to which the 
 prescription would apply. But there is no limitation at 
 all in this case; and it is impossible to ascertain who is 
 entitled to this right, under the custom as stated on this 
 record ; for the description of poor householders is too 
 vague and uncertain. 
 
 There may, however, be exceptions to this rule. Exceptions. 
 Thus, in the case of WcchJij v. Wildman (u), it is said by Tr'tr/di/v. 
 
 Wildman. 
 L. E., 7 Cli. D. 735 ; Lord Rivers {><) 1 Lord Eavmond, 40.5. 
 
 V. Ad.ims, L. E., 3 Ex. D. 361. 
 
 O 2
 
 196 
 
 PRESCRIPTIVE RIGHTS. 
 
 Special 
 custom. 
 
 Dean of Bhj 
 V. Warren. 
 
 Royal forest. 
 
 Hainatilt 
 Forest. 
 
 Chief Justice Treby tliat in ancient times sucli grants 
 to the inhabitants were allowed to be good, which would 
 not be good at this day. " So, in this case, a grant of 
 common to the inhabitants for encouragement of habi- 
 tation in the fen country may be supposed, which ought 
 to be adjudged good, if there had been constant enjoy- 
 ment under such grant." And in the case of Tlie Dean 
 and Chapter of Ely v, Warren (.r), there appears to have 
 been very strong evidence of a custom in manors in the 
 fen country for the tenants and occupants of tenements 
 within the manor to dig up the lord's soil for turves, 
 a custom which Lord Hardwicke denounced as a very 
 great absurdity ; at the same time, the evidence being 
 very strong, he directed an issue to try it. So an 
 exception to the rule has been allowed in the case of a 
 royal forest. Thus it appears from the statute 14 & 15 
 Vict. c. 43, by which Hainault Forest was disafforested, 
 that every poor widow in those parts of the parishes of 
 Barking and Dagenham, which lay within the Forest 
 of Hainault, who did not receive parochial relief, and 
 whose husband had been dead a year, had been usually 
 allowed to have one load of wood yearly on Easter 
 Monday, from and out of the king's forest or king's 
 woods, or in lieu of it eight shillings in money, to those 
 who could not procure a team to carry the wood on 
 that day. And compensation was made to the widows 
 accordingly. 
 
 WiUingaJe v. 
 Maitland. 
 
 So in the case of WitUngale v. Maitland [y), the 
 plaintiff alleged a grant by the Crown, to the inhabi- 
 tants of Loughton, in the county of Essex (which was 
 a Crown manor and parish within the royal forest of 
 Epping), that the labouring or poor people inhabiting 
 
 {x) 2Atk. 189. 
 
 \y) L. R., 3 Eq. 103. But see 
 as to this case, Chilton v. Corpo- 
 
 ration of London, L. R., 7 Ch. D. 
 735 ; and Lord Ltivers v. Adams, 
 L. R.,3 Ex. D. 361.
 
 COMMON OF THINGS RENEWABLE. 197 
 
 the parish and having families might, diuing a certain 
 period of every year, cut or lop the boughs and branches, 
 above seven feet from the ground, on the trees growing on 
 the waste lands of the manor or parish of Loughton for 
 their own use and consumption, and for sale for their own 
 relief to all or any of the inhabitants, for their consump- 
 tion within the parish as fuel. This grant was held upon 
 demurrer to be a valid grant. The Court relied on its 
 being a grant by the Crown in derogation of its f orestal 
 rights, and entirely assented to the statement of counsel 
 that grants by the Crown in derogation of its forestal 
 rights are to be considered and treated in a different 
 manner from other grants. The forestal rights were 
 excessively oppressive upon the inhabitants, and ac- 
 cordingly the Crown frequently made, to the inhabi- 
 tants in the neighbourhood of a forest, certain grants 
 in derogation of those rights ; which grants, though 
 they might not be good in every other respect, were 
 good so far as they were in derogation of those forestal 
 rights. This is in accordance with the law laid down 
 by Lord Coke (~), where it is said, "And concerning 
 claims, it is especially to be observed that, by the forest 
 law, a grant made of a privilege within the forest to all 
 the inhabitants being freeholders within the forest, or 
 such other commonalties not incorporated, is good." 
 
 We have already seen {a) that where there is a right Lord cannot 
 of this kind, namely, of estovers or turbary and so a^ai^Jt^ these 
 forth, the lord cannot approve under the Statute of "ghts. 
 Merton {h), or the Statute of "Westminster the Second (r), 
 as against such right; although he may approve or 
 inclose any part of the waste in which, according to the 
 usual course of nature, there is no possibility for any 
 turves, furze or ferns to grow (d). So there may be a 
 
 {z) 4 Inst. 297. (f) Stat. 13 Edw. I. c. 46. 
 
 («) Ante, p. 138. {d) Peardon v. Underhill, 16 
 
 \b) Stat. 20 Hen. III. c. 4. Q. B. 120; ante, p. 141.
 
 198 
 
 PRESCRIPTIVE RIGHTS. 
 
 Custom to 
 apx^rove, 
 leaving suffi- 
 ciencv. 
 
 custom of the manor iu whicli tlio waste is situate for 
 the lord to make grants by way of approval of portions 
 of the waste, even as against these rights ; provided that 
 he leave a sufficiency of estovers or turbary to be taken 
 from the rest of the waste, with as beneficial egress and 
 regress to and from the same as the commoners had 
 before (e) . 
 
 (f) ArlM V. mils, 7 B. & C. 346; ante, p. 141.
 
 ( 190 ) 
 
 LECTURE XIY. 
 
 Rights of the kind which I mentioned in my last 
 Lecture, namely, to cut timber for fuel or repairs, or 
 to get peat or brushwood for fuel, may be created by 
 grant, either as appurtenant to a certain messuage, or Grant. 
 as a right in gross ; and such right in gross may, I 
 apprehend, be granted either to an individual, or to a 
 corporation. It was laid down in Si/ni's case {a) that Si/m's case. 
 " there is a difference between advantages in gross, and 
 advantages which by the grant are made appurtenant 
 or incident to another thing. As if a man be seised of Grant of 
 a house in the rio-ht of his wife, and another grants to ^•'^tovers to be 
 
 o _ ' _ o appiu'tenant 
 
 the husband and his heirs to have sufficient estovers to to a house, 
 burn in the same house ; in that case the estovers are 
 appurtenant to the house, and shall descend to the issue 
 of the husband and wife. So if one hath a house of 
 the part of his mother, and one grants to him that he 
 and his heirs shall have competent house bote to be 
 burned in the same house, this is appurtenant to the 
 house, and although it be a new purchase, yet it shall 
 go with the house to the heir of the part of the 
 mother." 
 
 I apprehend that a right to take wood, tm-f, furze, Grant in 
 fern, &c., may also be granted in gross, irrespective of its o^^''^- 
 use in any tenement. Thus, a man may grant to another 
 and his heirs so many loads of wood per annum to be 
 taken out of his woods. So it was said by Wyndham, 
 Justice, in the case of Ilayu-ard v. Canningion {b), that 
 a man may prescribe to have two loads of wood out of 
 another man's land as in gross, but not as appendant 
 
 (ff) 8 Rep. 54. {b) 2 Keble, 311.
 
 C ISC 
 
 200 PRESCRIPTIVE RIGHTS. 
 
 without application : — tliat is to say, not as belonging 
 to any messuage without its being applied to the use of 
 Monntjoifs that messuage. So in Lord Monnijoi/s case (c), Lord 
 Mount] oy, being seised of two parts of the manor of 
 Sanford, by deed indented and enrolled, bargained and 
 sold these two parts to John Brown and Charles Brown 
 and the heirs of the said John Brown, in which in- 
 denture divers covenants were contained, and amongst 
 them the following : — " Provided always and it is 
 covenanted, granted, concluded and agreed between the 
 said parties to these indentures, and the said John 
 Brown and Charles and their heirs covenant and grant 
 to and with the said Lord Mount joy, his heirs and 
 assigns by these presents in form following : that is to 
 say, that it shall be lawful to and for the said Lord 
 Mount joy, his heirs and assigns, at all times hereafter, 
 to have, take and dig, in and upon the heath ground of 
 the premises, from time to time sufficient ores, heath, 
 turrcs and otJtcr necessaries for the making, &c. of alum 
 or copperas ; and to build houses there, pull down and 
 alter, without let or interruption of the said John and 
 Charles, their heirs or assigns, or either or any of them." 
 And afterwards Lord Mount joy, by deed indented, 
 authorized one Richard Leycolt, for thirty-one years, 
 to dig for mines and minerals in the manor, and to 
 convert the same to his own use for thirty-one years, 
 yielding to Lord Mount joy, &g. one-half of the clear gains 
 and profits to arise by reason of the grant. And the 
 judges certified their opinion to be, that Lord Mount- 
 joy, by this assurance, had sufficient interests and right 
 in fee to dig such turves, ore and other things, for 
 making of alum and copperas, &c., as he should think 
 good. And that all the interest that Lord Mountjoy 
 had to dig or make alum was granted to Leycolt during 
 the term mentioned in the indentm'e. Lord Coke 
 
 (r) Co. Lilt. IGlb; 1 Anderson, 307.
 
 COMMON OF THINGS RENEWABLE. 201 
 
 says ((/), that it was held that, though Lord Mount joy- 
 might assign his whole interest to one, two or more, 
 then if there be two or more, they could make no 
 division of it, but work together with one stock ; neither 
 could Lord Mount] oy assign his interest in any part 
 of the waste to one or more ; for that might work a 
 prejudice and a surcharge to the tenant of the land. 
 They held also that, notwithstanding the grant. 
 Brown, his heirs and assigns, might dig also as owner 
 of the soil. It appears from the report of the same 
 case in Grodbolt (e) that Lord Coke was counsel for 
 Lord Mount joy in the case. An instance of the 
 grant of such a right to a corporation occurs in the 
 case of The Queen v. T/ie C/iamberlains of Ahucick (/). Queen v. 
 In that case, so long ago as the year 1290, William ^oflinwick' 
 de Yesci granted to the burgesses of Alnwick, amongst 
 other things, common in Haydon with all the privi- 
 leges in Haydon Moor (a large tract of uninclosed 
 land adjoining the town) in the marshes feeding and 
 pastui'e grounds ; with liberty to ^ai peats, turves and 
 brushwoods, and with all the other their free appur- 
 tenances and privileges which they were wont to have 
 and to use in the times of the grantor's ancestors, as 
 well as in the forbidden month as in others. Haydon 
 Moor was not only a piece of waste ground but also 
 a forest. The forbidden month is called the fence 
 month, being the time during which the deer are 
 breeding ; and during which therefore they ought not 
 to be disturbed. It begins fifteen days before Mid- 
 summer and ends fifteen days after midsummer. For 
 these privileges of common during the fence month it 
 appears that the freemen and burgesses paid 2.s. per 
 annum, pursuant to the following proviso in their 
 charter: — "And it must known that the same bur- 
 gesses and their heirs, for the privileges which they are 
 
 {(1) Co. Litt. 165 a. (/) 9 A. & E. 444. 
 
 (e) Page 18.
 
 202 PRESCRIPTIVE RIGHTS. 
 
 to have in Ilaydon in the forhidden month with their 
 
 liberties, shall give me and my heirs 2s, annually, 
 
 namely, one-half at the feast of St. Martin, and the 
 
 other half at Pentecost for ever." The point decided 
 
 in this case was that, the interest of the freemen being 
 
 Right of that of commoners only, the corporation was not 
 
 rateable to rateable to the poor in respect thereof. A right of 
 
 the poor. common, as such, is not rateable to the poor ; but, if it 
 
 is aj)pendant or aj^purtenant to a tenement, and so 
 
 increases the value of the tenement, the tenement to 
 
 which it belongs is subject to a higher rate accordingly {g). 
 
 As in the ease of pasture {/i), so in the case of the 
 right to take brushwood and other matters of the same 
 
 Right may be kind, the right claimed may be exclusive, either by 
 vu'tue of a prescription, or by virtue of a grant. Thus 
 
 l)ou-fjiass\. in the case of Doirglass v. Kendal (J.) , an action of tres- 
 pass was brought for taking and carrying away thirty 
 loads of thorns of the plaintiff's, by him cut down, and 
 lying upon his land at Chippingwarden in a place called 
 the common waste. The defendant justifies because the 
 place where, &c. is an acre, and that he is seised in fee 
 of a messuage, and three acres of land in Chipping- 
 warden aforesaid, and that he and all whose estate it 
 was, from time immemorial, have used from"^me to 
 time to cut down and take all the thorns growing upon 
 the said place to expend in the said house, or about the 
 said lands, as pertaining to the said house and lands: 
 and so justifies. The plaintiffs showed that one Sir 
 Richard Saltington was seised in fee of the manor of 
 Chippingwarden, whereof the place where the trespass 
 was committed is parcel, and granted licence to him to 
 take the thorns ; whereupon he cut them down, and the 
 defendant afterwards took them. Upon this plea it was 
 demurred; and after argument at the bar adjudged for 
 
 (y) Eex V. CliiirchUl, 4 B. & C. (h) Ante, pp. 9, 21. 
 
 750, 755. (;) Cro. Jac. 256.
 
 COMMON OF THINGS NOT RENEWABLE. 203 
 
 the defendant ; for, as tliis case is, the lord may not cut 
 down any thorns, nor license any other to cut them 
 down ; for the defendant prescribeth to have all the 
 thorns growing upon that place, and this prescription 
 excludes the lord to take any thorns there ; but, if he 
 had claimed co)tuno)i of estovers only, then, if the lord 
 had first cut down the thorns, the commoner might not 
 take them ; and if he had cut down all the thorns, the 
 commoner might have had an assize ; but here he pre- 
 scribes to have all, which is admitted by the replication, 
 and is well enough. 
 
 I now come to the consideration of rights of digging Things not 
 for sand, gravel, coal, and other matters which, when ^'"^^^^^o^^- 
 taken away, are not in the course of nature renewable. 
 And with regard to these, a right may be established 
 either by prescription, as appurtenant to a tenement for 
 the repair thereof or to be used thereon for any reason- 
 able purposes, or by grant to be appurtenant to a tene- 
 ment for any such purposes ; or, I apprehend, either by 
 prescription or grant, as a right in gross, independent 
 of the enjoyment of any tenement. When a right of 
 this kind is claimed as belonging to any particular tene- 
 ment, it must, like the claim of estovers or turbary, be 
 
 of a reasonable kind, and it must be for materials Claim must 
 
 1 • 1 1 J. 1 ,1 1 1 be reasonable, 
 
 which, when taken, are to be used or consumed upon 
 
 the tenement in respect of which they are claimed. 
 An instance of a claim annexed to a tenement, which 
 was considered unreasonable and therefore void, occurs 
 in the case of Clayton v. Corhij (/.•) . This was an action Clayton t. 
 of trespass for breaking into a close, and taking away °^ ^' 
 clay and other things. And in justification the defen- 
 dant pleaded that, before and at the several times when 
 the alleged trespasses were committed, the defendant 
 liad been and was the occupier of a certain tenement 
 and premises, to wit, a brick kiln ; and that the defen- 
 (/.) 5 Q. B. 415.
 
 204 PRESCRIPTIVE RIGHTS. 
 
 dant, whilst he was such occupier as aforesaid, and all 
 the occupiers for the time being of the tenement with 
 the appurtenances, for the full period of thirty years 
 next before the commencement of the suit, had respec- 
 tively had and enjoyed, as of right and without inter- 
 ruption, and the defendant still as of right ought to 
 have and enjoy, a right to dig, take and carry away, in, 
 out of and from the said close, in which the alleged 
 trespasses were committed, so much of the clay of the 
 said close as was at any time required by him and them, 
 his and their servants, for the purpose of making bricks 
 in and at the said last-mentioned brick kiln, in every 
 year and at all times of the year. This, you see, was a 
 plea under the first section of the Prescription Act, 2 & 
 3 Will. IV. c. 71 {)//), of thirty years' enjoyment without 
 interruption; and, under the fifth section («), enjoy- 
 ment was alleged as of right by the occuj^iers of the 
 tenements, in respect whereof the right was claimed, 
 without claiming in the name or right of the owner of 
 the fee. And it was also alleged, in pursuance of the 
 fourth section {ii), that the enjoyment was for thirty 
 years next before the commencement of that suit. The 
 Court, however, held the plea to be bad as unreasonable. 
 Lord Denman, in delivering the judgment of the Court, 
 observed (o), "The nature of the tenement, so called a 
 brick kiln, leads to no conclusion, one way or the other, 
 as to the extent of the claim and demand upon the soil 
 of the plaintiff. It may have been at the time of the 
 trespass of any dimensions and capacity. It may have 
 been, during the thirty years of alleged enjoyment, 
 continually varying, and consequently the quantity of 
 clay required for the purpose of making bricks thereat 
 may have varied also. There is no limit. No amount 
 of clay, measured by cartloads or otherwise, requu-ed, — no 
 number of bricks, estimated by hundreds or thousands, 
 
 (»0 Ante, p. 173. (o) 5 Q. B. 422. 
 
 («) Ante, p. 174.
 
 COMMON OF THINGS NOT RENEWABLE. 205 
 
 claimed to be made, — is given or attempted. What is it, 
 therefore, but an indefinite claim to take all the clay- 
 out of and from the said close in which, &c., or in other 
 words to take from the plaintiff, the owner, the whole 
 close ? We are of opinion, therefore, that the plea can- 
 not be sustained." 
 
 So, the materials claimed must not only be rea- Must be spent 
 sonably claimed, but must also be claimed for the "P^^.^li^ 
 
 , . , premises. 
 
 purpose of being spent upon the premises. Thus, in 
 the case of Peppiii v. ShaJcespear {p), a plea was put in Tcppin v. 
 that the tenants of a customary tenement had im- '""^'"^'"^v^^"''- 
 memorially been accustomed to have, and still of right 
 ought to have, the liberty and privilege of digging for 
 and carrying away sand, loam and gravel in and from 
 the common, /or Mf/r necessary repairs; and that the 
 defendant Shakespear, in his own right, and the other 
 defendants as his servants, entered in the place in 
 question, being parcel of the said common, for the 
 purpose of digging for and carrying away sand, loam 
 and gravel, /or the necessary repxdrs of ilie said 8/iake- 
 spear the defendant. The Court gave judgment for 
 the plaintiff on account of defects in the pleas, which 
 stated that the defendant entered for the purpose of 
 digging for and carrying away sand, &c.,/or the neces- 
 sary rejmirs of the said defendant. In one of the pleas 
 the tenement was stated to be a messuage ; and with 
 respect to that they said, " It ought to have been 
 expressly alleged that the house was in want of repair, 
 and that the defendants entered for the purpose of 
 digging for and carrying away sand, &c., for the 
 necessary repairs of that house, and that they used the 
 sand, &c. for that purpose, in order that the plaintiff 
 might have traversed those facts." In the case of 
 Duberley v. Page {q), a right of taking sand and gravel Buberleyx. 
 was sustained, and was held sufficient to defeat a claim '^^^^ 
 {p) G T. Rep. 748. (/y) 2 T. Eep. 391.
 
 206 PRESCRIPTIVE RIGHTS. 
 
 of the lord to iiicloso under the Statute of Merton (r). 
 I mentioned this case in a former Lecture (s). The 
 rig-lit claimed was, as appears from the pleadings in the 
 case, to dig and take sand and gravel throughout the 
 waste for the necessary repairing and amending of the 
 ways, paths and walks of, and the gardens, orchards 
 and yards of and belonging to, the messuages, and for 
 the necessary repairing and amending of the ways 
 belonging to the lands, as often as need should require. 
 
 Marquis of There is a case of Tlic Marquis of Salishiry v. Glad- 
 
 'Glad'stoney sfoiie{f), which relates to copyholds, but which has some 
 Custom for bearing upon cases of this nature. The custom there 
 d'i^''ala^''^out° ^®^ ^^P ^^^ ^ custom for a copyholder, without the 
 of his own licence of the lord, to break the sm'face and dig and get 
 gale. clay without limit, oui of his oicii copz/liold tenement, with 
 
 the object of its being made into bricks, and to be 
 afterwards sold by him off the manor, for purposes not 
 connected with the manor. It was found that such a 
 custom did in fact exist; and the question was, whether 
 it was a lawful custom or not. The Court held that 
 the custom was lawful. It was held that there could 
 be no doubt that the lord, upon the original grant of 
 the copyhold tenements in question, might have re- 
 served to himself the right to dig and carry away the 
 brick earth found upon them, and that, if a custom of 
 this kind existed in the manor, it would be reasonable 
 and valid. But if the lord might have reserved such a 
 right to himself, why might he not confer it upon his 
 tenants ? and, if it is not unreasonable to suppose that 
 such a right might have been originally conferred, then 
 the custom which had been proved by the immemorial 
 exercise of the right was good in law. Here you see 
 the right claimed was a right to dig and sell the clay 
 under the copyholder's own tenement only. If the 
 
 (;•) Stat. 20 Ilcn. III. c. 4; (.v) .-i«^e, pp. 138, 139. 
 ante, -p. 103. (0 9 11. of L. G92.
 
 COMMON OF THINGS NOT UENEWAIJLE. 207 
 
 claim had been to dig and sell clay without limit out of 
 
 the waste lands of the manor, I apprehend that a 
 
 different conclusion would have been arrived at. Thus 
 
 in the case of The Didcc of Portland v. Ili/i (ii), a T)uic of Tort- 
 
 custom for the customary tenants of a manor to dig for 
 
 coal on the waste for their own use was held to bo 
 
 confined to digging coal for their own consumption. 
 
 With regard to a right of estovers (.r), as well as with 'Wlietlier 
 regard to a right of common of pastui-e (y), it has been a m\stom^for 
 held, as we have seen, that there may be a custom in t'^« ^'^^^ to 
 the manor for the lord to inclose any part of the waste, leaving suffi- 
 leaving a sufficiency of common for the commoners. '?,^^'^{'^o?^ 
 But where a right is proved on the part of the tenants, 
 cr any other class, to take away sand, gravel, or any 
 other substance which cannot be renewed, the question 
 arises whether it is possible for the lord to leave a 
 sufficiency of common for the commoners. Pasture 
 and wood may be renewed, and in the course of natui-e 
 will be renewed by regrowth. But sand and gravel 
 and substances of that kind cannot be renewed. It 
 seems, therefore, difficult to say, having regard to the 
 length of time during which the rights of the tenants 
 may continue, that it is possible, in such a case as this, 
 to leave a sufficiency for the tenants. I am not aware, 
 however, of any decision on this point. 
 
 Rights of this kind may be created, as I have said(c), 
 not only by prescription, but also by grant. And a grant Grant. 
 may be either as appiu"tenant to some tenement or in 
 gross. An instance of a grant of a right to a man, his heirs 
 and assigns, irrespective of any tenement, to dig for ore 
 in common with the grantor and his heirs, occm^ed in 
 Lord Mountjoifs case (a), to which I have just refeiTcd. lord Mount - 
 
 Jul/'' s case. 
 («) L. E., 2 Eq. 765. (;:) Ante, p. 203. 
 
 \x) Ante, pp. 141, 198. («) Co. Litt. 1G4 b; 1 Andcr- 
 
 (y) At2te, p. 123. son, 307; ante, p. 200.
 
 208 
 
 PRESCRIPTIVE RIGHTS. 
 
 The Queen v. 
 Chamberlains 
 of Alnwick. 
 
 Hex V. Wark- 
 icorth. 
 
 And in tlie case of The Queen v. TJie Chaniherhiins of 
 Ahucick (b), to whicli I have also referred, a grant was 
 made to the freemen of Alnwick of liberty at all times 
 to get limestone, slate and freestone in any of the 
 quarries for their own use, and to dig clay, burn bricks, 
 and to dig and take away sand, gravel, clay and marie, 
 for the use of themselves and other freemen, &c., in 
 such parts of the forest or moor as the lord's baililfs of 
 the borough and the chamberlains should think fit. 
 This was held to be a grant of a right of common for 
 the corporation. And, in the previous case of Bex v. 
 Warix worth (c), the interest of each individual freeman 
 of Alnwick, who did not himself exercise any of the 
 rights, was held to be a mere personal liberty, and not 
 a hereditament vested in liim, sufficient to give him, 
 under the old poor laws, a settlement in the place. 
 
 Owner may- 
 get unless 
 licence 
 exclusive. 
 
 Carr x. 
 
 Benson. 
 
 It must always be borne in mind that a licence to get 
 stone, gravel, &c., or to work mines, is not an exclusive 
 licence, unless so expressed. It does not prevent the 
 owner of the land from himself v/orking the minerals, 
 or from granting to other persons the same right. This, 
 you will remember, was one of the resolutions in Lord 
 Mountjoifs ease {d). The case of Carr v. Benson (e), is 
 an instance of a grant of a licence to work coal and 
 minerals, including fire-clay, for a certain term, which 
 was held not to be an exclusive licence. The grant 
 was dated the 29th of September, 1854. It was made 
 by Lord Eokeby, the lessor, to two persons of whom the 
 plaintiff was one ; and it gave them power to dig, work 
 and burn the fire-clay, and convert or manufacture the 
 same into fire-bricks and other things made of fire-clay, 
 for sale, and also to woi'k the ironstone and coal to be 
 found in connection with such fire-clay for the purpose 
 of the manufactory. Afterwards by an indenture dated 
 
 (i) 9 A. &E. 444, ante, p. 201. 
 ((■) 1 M. & S. 473. 
 
 //) Co.Litt. 164 b; rm/e, p. 201. 
 V) L. R., 3 Ch. 524.
 
 COMMON OF THINGS NOT RENEWABLE. 209 
 
 tlie 31st August, 1(862, and made between Lord Rokeby 
 
 of the one part, and the defendant Benson of the other 
 
 part. Lord Rokeby demised to Benson all and every 
 
 the collieries, coal mines and seams of coal, and also all 
 
 mines, seams, veins or beds of ironstone and iire-clay 
 
 found in connection with such coal seams as were 
 
 workable as coal seams, within and under, or which 
 
 should be dug and got from, the lands in question. 
 
 And it was held by the Court of Appeal that the first 
 
 deed, having been merely a licence, and not an exclusive 
 
 licence, the coal and fire-clay remained in the lessor ; 
 
 and that he had full liberty to demise it to Benson, 
 
 subject to the right of the former licensees to get 
 
 fire-clay and work the coal. The plaintiff asked for an 
 
 injunction to restrain the defendant from working the 
 
 fire-clay ; and this injunction was granted by the Court 
 
 below. But on appeal the decree was reversed, and 
 
 the bill dismissed with costs. The case, you will see, 
 
 is like that of common of estovers (/), where both the 
 
 commoners and the lord have a right to cut down 
 
 furze or brushwood for their own use. If the lord cuts 
 
 down brushwood for his own use, the tenant cannot 
 
 prevent him ; and if the tenant cuts down brushwood 
 
 for his own use, the lord cannot prevent him. In the 
 
 case of a common right of this kind the rule always is 
 
 first come first served. An exclusive right of digging An exclusive 
 
 for coal, called a mining licence, is a mode not un- ^''®'^'^^- 
 
 frequently adopted for the working of mines. If the 
 
 grant is in terms the grant of an exclusive right, the 
 
 grantor cannot himself dig for the minerals included 
 
 in the licence, or authorize any other person to do so ; 
 
 whereas a licence not exclusive amounts merely to a 
 
 grant of a right of common. 
 
 A licence to take coal and other minerals does not Licence gives 
 
 no estate in 
 (/) Ante, p. 203. the land. 
 
 w.r. p
 
 210 PRESCRIPTIVE RIGHTS. 
 
 convey any legal estate in the substratum of the lands 
 Chetham v. thomselves. Thus in the case of Chetham v. WilUam- 
 son ( (j), one Eichard Nettleton was mortgagee of certain 
 lands, and Edward Hyde was the mortgagor thereof. 
 And they, hy lease and release, granted the premises to 
 one Ilobson in fee. And Ilobson granted, for himself 
 his heirs and assigns to Hyde, his heirs and assigns, 
 that it should be lawful for Hyde, his heirs and assigns, at 
 all times thereafter to enter into all or any part of the 
 premises to search for and dig for coal or stone, or any 
 other mine or mineral whatsoever, and the same to take 
 off and carry away for their own use. The Court held 
 that this liberty reserved of digging coals could not give to 
 Hyde the exclusive right in them. They held that the 
 covenant could only operate as a grant, and did not con- 
 vey any interest in the soil. A grant would not, in those 
 days, pass the land itself without livery of seisin. So in 
 l)oe d. Hmiiei/ the case of Doe d. Ilanleij v. Wood (//), a grant was made 
 V. Wood. ^Q certain persons, their executors, administrators and 
 
 assigns, of free liberty, licence, power and authority to 
 dig, work, mine and search for tin, ore, &c. in certain 
 places, and the tin ore so found to bring to grass, pick, 
 dress, &c., and dispose of to their own use, subject to 
 certain reservations. It was held that this did not 
 amount to a lease of the tin ore, but contained a mere 
 licence to dig and search for minerals, and that the 
 grantee could not maintain an ejectment for mines 
 lying within the limits of the set, but not connected with 
 the working of the grantee. This case came before the 
 Xonccnjx. Court of Chancery in the case of Noniriy v. lloice{i), 
 Mom. ^^^ ^]^Q Lord Chancellor, Lord Eldon, said, " This is 
 
 nothing like a demise of mines. I do not say that 
 similar principles will not apply to it. These leases, as 
 they are called, are not demises of the mines, but simple 
 
 {(j) 4 East, 4G9. [l) 19 Vcs. 143, 158. 
 
 (//) 2 B. & A. 724.
 
 COMMON OF THINGS NOT RENEWABLE. 211 
 
 grants of liberties and licences to work, to some persons 
 named and others not named, but described under the 
 cliaracter of fellow-adventui'ers, &e. It is necessary to 
 see not only one of the original leases, but also one of 
 the titles under which the sharers became interested, and 
 the form of the mortgages ; for if there is nothing 
 more than a licence to work, there is no estate what- 
 ever." If, however, a grant be made of an exclusive Exclusive 
 right of mining, and the licensee enter upon the mine, maTitaiiT'^''' 
 and commence working it, he acquires the possession of trespass, 
 the mine, and may bring an action of trespass against 
 any person who may intrude upon such possession. 
 This was decided in the case of Ilarker v. Birkheck (Ji). Sarlcerv. 
 And you will remember that, in the similar case of a " ' ^^'• 
 grant of the exclusive right of the herbage of land, the 
 grantee, whilst in possession of the herbage, has a 
 sufficient possession to enable him to bring an action of 
 trespass against any person who may tread down the 
 grass ; although the right to bring an action of trespass 
 for meddling with the subsoil does not belong to him, but 
 belongs to the owner of such subsoil. This was decided 
 in the case of Cox v. Glue (/), to which I called attention Cox v. Glue. 
 in a former Lecture {in). It has been held that, if the Wliatis 
 licensee digs holes for the purpose of ascertaining the session by- 
 nature of the property, and the minerals to be found li*^^^^^^- 
 therein, and then shuts up the holes again, this is not to 
 be considered as a taking of possession, which will make 
 him liable for use and occupation (»). 
 
 The right to dig for sand, gravel, &c., claimed by one Rights of lord 
 person in the soil of another, must be carefully dis- ^ij^anc/'&c 
 tinguished from the right of the lord of a manor to dig 
 
 IJx) 1 Sir W. Black. 481, more {»>) Ante, pp. 26, 27. 
 
 fully reported, 3 BiirroAvs, 1556. (??) Jones v. Mcynohls, 7 Car. & 
 
 (?) 5 C. B. 533. Payne, 335. 
 
 p 2
 
 212 PRESCRIPTIVE RIGHTS. 
 
 for the same materials in tlie waste lands of the manor, 
 over which his tenants have rights of common of pasture. 
 The lord's right to dig is by vu-tue of his ownership of 
 the soil ; and his ownership of the soil carries with it 
 the usual rights of all owners, so long as the rights of 
 the commoners are not infringed on (o). 
 
 (o) Ante, p. 151.
 
 ( 213 ) 
 
 LECTURE XV. 
 
 I NOW come to consider tlie general law with regard to Mines and 
 mines and minerals, in respect of which incorporeal "^^^°^'^^'^- 
 rights of a prescriptive nature not unfrequently arise. 
 And first with regard to manors. The lord of a manor Manors. 
 is seised in fee of the demesne lands of the manor, l^i^'^'t« of 
 which comprise his own lands and the wastes which are 
 subject to the rights of common of his tenants, and the 
 copyholds which are parcel of the manor. As to free- 
 hold lands held of the manor, the lord has no right to 
 the minerals under them. They belong to the free- 
 holder as part of the soil of which he is seised. As to 
 the wastes, the mines belong to the lord as part of the 
 soil of which he is seised. And, as we have seen {a), he 
 may work the minerals, so that he do not unduly inter- 
 fere with the common rights of his tenants. With Copyholds, 
 regard to the copyhold lands, a copyholder, as you are I^igl'ts of 
 
 T^WT . . / .. . 1 -1 copyholder iu 
 
 doubtless aware, is, m construction oi law, simply a mines and 
 tenant at will, but long-continued enjoyment has created "^^"^rals. 
 a custom, by virtue of which, though legally tenant at 
 will, he is practically the owner of the lands which he 
 holds. Being in possession of the land, he is in posses- 
 sion also of the mines and minerals under the surface 
 of the land ; although the property in them, as in the 
 rest of the land, remains in the lord. The law upon 
 this subject is well laid down by the present Master of 
 the Rolls in the case of EanUcy v. Granville {b). " The bardie// v. 
 law," he said, *' seems to stand in this way. The estate '"'"''' ''' 
 of a copyholder in an ordinary copyhold (for it is an 
 estate) is an estate in the soil throughout, except as 
 regards for this purpose timber-trees and minerals. 
 
 [a) Ante, p. 1.51. {!>) L. R., 3 Ch. D. S26, S32.
 
 214 rRESCRIPTlVE RIGHTS. 
 
 As regards the trees and minerals, the property remains 
 in the lord, but, in the absence of custom, he cannot 
 get either the one or the other, so that the minerals 
 must remain unworked, and the trees must remain 
 uncut. The possession is in the copyholder ; the pro- 
 perty is in the lord. If a stranger cuts down the trees, 
 the copyholder can maintain trespass against the 
 stranger, and the lord can maintain trover for the trees. 
 If the lord cuts down the trees, the copyholder can 
 maintain trespass against the lord; but if the copy- 
 holder cuts down the trees, irrespective of the question 
 of forfeiture, the lord can bring his action against the 
 copyholder. So in the case of minerals. If a stranger 
 takes the minerals, the copyholder can bring trespass 
 against the stranger for interfering with his possession, 
 and the lord may bring trover, or whatever the form of 
 action may be now, against the stranger to recover the 
 minerals. The same rule applies to minerals as to 
 trees. If you once cut down the tree, the lord cannot 
 compel the copyholder to plant another. The latter 
 has a right to the soil of the copyhold where the tree 
 stood, including the stratum of air which is now left 
 vacant by reason of the removal of the tree. So, if the 
 lord takes away the minerals, the copyholder becomes 
 entitled to the possession of the space where the minerals 
 formerly were, and he is entitled to use it at his will 
 and pleasure. If you have a shaft made for working 
 the mines, the copyholder may descend in the shaft, 
 and either walk about in the space below, or use it for 
 any other rational purpose. That is the position of 
 the copyholder." In the case of Eardley v. Granville, 
 the plaintiffs were copyholders of part of the manor of 
 Newcastle-under-Lyne ; and the crown, in right of the 
 Duchy of Lancaster, was seised in fee of the manor. 
 The defendant. Earl Granville, was lessee under the 
 crown of the collieries, mines and minerals within the 
 manor. By tlie custom of the manor, the crown and
 
 MINES AND MINERALS, 215 
 
 its lessees were entitled to enter upon the land for tlio 
 purpose of working the mines and minerals. Lord 
 Grranville was not only lessee from the crown of the 
 mines within the manor, but he was also the lessee of 
 the mines under an adjoining tract of freehold land 
 belonging to one Sneyd ; and he claimed a right to use 
 a erut, or underground Avay, beneath the land of the 
 plaintiifs, for the purpose of conveying minerals from 
 Sneyd's mine to the deep pit by which the manorial 
 mines were worked, and thence by a branch railway 
 constructed by the defendant over part of the same 
 copyhold, to the main line. It was lield that this user 
 was a trespass, and that the plaintiifs were entitled to 
 an injunction to restrain the defendant from carrying 
 the Sneyd minerals over or under their copyhold land. 
 His lordship observed, that, there being no minerals in 
 this crut, "the earl as crown lessee cannot have a greater 
 right than the crown, that is, the lord or lady of the 
 manor. He has, therefore, no right now to trespass 
 on the copyhold for any purpose whatever, because I 
 assume he does not want it for the purpose of working 
 the manorial minerals : for that purpose he has a right 
 to use it ; but assuming that he does not want it for 
 that purpose, but only wants it for the purpose of 
 carrying the coal from under Sneyd's estate — that is, 
 foreign coal — he has no riorht to use it at all. Of 
 course the injunction to be granted will only restrain 
 him from using it for that purpose ; it will not affect the 
 other right. It is not trespass while he carries crown 
 minerals. It is trespass when he uses it for any other 
 purpose." Thus you see that, the possession being in 
 the copyholder, he can prevent the lord of the manor, 
 or any person authorized by him, from coming into the 
 underground vacant spaces, left after the minerals have 
 been got, except only for such pm-poses as the custom of 
 the manor may expressly warrant. If, however, as the
 
 216 
 
 PRESCRIPTIVE RIGHTS. 
 
 Grant of 
 lands except- 
 ing- mines. 
 
 Master of the EoUs says (e) , a freeholder grants lands 
 excepting mines, he grants out his estate in parallel 
 horizontal layers ; and the grantee only gets the parallel 
 layer granted to him, and does not get any underlying 
 mineral layer or stratum. That underlying stratum 
 remains in the grantor. The freeholder retains the 
 mineral stratum as part of his ownership ; and whether 
 or not he takes the minerals or subsoil out of the 
 stratum, the stratum still belongs to him. But in the 
 case of a copyholder, that is not so, because the copy- 
 holder, though he has no property in the stratum in the 
 sense of being entitled to take the minerals, has property 
 and possession in this sense, that the moment the minerals 
 are taken away, the space is in his possession, and he only 
 can interfere with it, the lord ha\dng no right to do so. 
 
 The strata of 
 coal> &:c. 
 cannot be 
 claimed by 
 prescription. 
 
 WilJcinson v. 
 Proud. 
 
 If a person claim the whole stratum or strata of coal, 
 or other mines and minerals, under the surface of any 
 land, as his corporeal property, and not merely a right, 
 whether in common with others or exclusively, to take 
 coal or other minerals, he cannot make a title thereto 
 by prescription. Prescription is only for an incorporeal 
 right. The land itself, of which the coal, stone or 
 other minerals is part, is a very different thing. There 
 is a case of WlUcln>ioii v. Pro!^f/ (r/), which shows this 
 distinction. That was an action on the case for injury 
 to the plaintiff's reversion in certain closes or parcels of 
 land, in the occupation of one Grill as tenant tliereof to 
 the plaintiff ; and the damage alleged was, that the 
 defendants, without the leave or licence of the plaintiff, 
 dug and excavated divers holes and pits, and erected 
 and fixed divers engines, gins, buildings and posts on 
 the land, and dug and worked the coal, and carried 
 away and converted the same. The second plea of the 
 defendant was to the effect that John Proud deceased, 
 
 (c) L. R., 3 Ch. D. 834. {d) 11 M. &; W. 33.
 
 MINES AND MINERALS. 21' 
 
 and all his ancestors whose heir he was, from time 
 whereof the memory of man is not to the contrary, 
 until the time of making the indentm^e thereinafter 
 mentioned, had been used and accustomed to have, and 
 of right ought to have, all the coals and veins of coal in 
 and under the close, with liberty to enter the close for 
 the purpose of working the mines. The plea then 
 alleged that by deeds of lease and release dated the 2nd 
 and 3rd of September, 1841, the said John Proud 
 bargained and sold to one William Eichardson ; and 
 the defendants then justified the trespasses as the 
 servants of Eichardson. The third plea was framed 
 upon the Prescription Act {e), and it alleged that, for 
 the full period of thirty years next before the com- 
 mencement of the suit, the said John Proud deceased 
 and his ancestors whose heir he was, and the said 
 William Eichardson, that is to sa}^, the said John 
 Proud and his ancestors whose heir he was, before and 
 up to the time of making the indenture before men- 
 tioned, and the said William Eichardson from the time 
 of making the said indenture, had actually taken and 
 enjoyed, as of right and without interruption, all the 
 coals and veins of coal under the closes, and had, 
 dming all that time, as of right and without interrup- 
 tion, at all times of the year, entered into the closes, 
 and cut, dug into and excavated the same, for the 
 pm-pose of searching for, mining and winning the coals 
 under the same, and so on. A special demuiTer was 
 put in to each of these pleas ; and the Court, after 
 argument, allowed the demm-rers. The Court held that 
 this was clearly a prescription to land. A vein of coal 
 is land. Baron Parke observed, " This is not a claun 
 of a prescriptive right to take coal in the plaintiff's 
 close, but a prescription for all the strata and seams of 
 coal lying under it ; that is, for a part of the soil itself, 
 and not for a right to get the coal, which would be the 
 
 (c) Stat. 2 & 3 WiU. IV. c. 71, s. 1; ante, p. 173.
 
 218 
 
 rRESCRlPTIVE RIGHTS. 
 
 subject of a grant. Possibly the defendants may be 
 able to amend by pleading a seisin in fee in the strata 
 of coal, or by prescribing for the right to take coals in 
 the plaintiff's close." Leave was given to the defen- 
 dants to amend on payment of costs, otherwise judg- 
 ment was to be for the plaintiff. 
 
 Conveyance 
 of land 
 reserving 
 minerals. 
 
 When mines 
 are reserved, 
 acts of owner- 
 ship of 
 surface im- 
 material. 
 
 Siillth V. 
 Lloyd. 
 
 If a man, having land with coals and other minerals 
 under it, convoys the land to another, but reserves to 
 himself the coal and minerals, the coal and minerals 
 remain in him, as I have said (./'), as part of that 
 corporeal inheritance of which he was previously seised. 
 Where, therefore, the mines are reserved out of a con- 
 veyance, there is no necessity for the owner of the 
 mines to keep his title alive by any act of ownership. 
 In that case, whatever acts of ownership may be com- 
 mitted with respect to the siu'face, have no bearing 
 whatever upon the mines below, which have been 
 severed from the surface. It may therefore be that, for 
 forty or fifty years or more, the mines remain un- 
 worked ; and yet the ownership will continue the same ; 
 for the Statutes of Limitations {<j) have no effect in 
 this case. Thus, in the case of Smith v. Lloyd (Ji), it 
 appeared that, so long ago as the year 1725, one 
 Eichard Parkes was seised in his demesne as of fee of 
 the close in question and the coals and minerals under 
 the same. And by an indentm-e, made on the 5th of 
 May in that year, he conveyed to John Eowley and his 
 heirs the said close, excepting all mines of coals, stone 
 and other mines whatsoever, with powers of working. 
 The plaintiff was entitled under John Powley to the 
 close and surface ; and the defendants were entitled 
 under Richard Parkes to the excepted minerals. And 
 the question was whether, where, more than a centmy 
 ago, the owner of the fee simple of a close with a 
 
 (/) Ante, p. 216. 
 
 \y) Stats. 3 i: 1 Will. IV. c. 
 
 27 ; 37 & 38 Vict. c. 57. 
 [h) 9 Ex. 562.
 
 MINES AND MINERALS. 219 
 
 stratum of coal and otlier minerals under it, conveyed 
 the surface to one, under wliom tlie plaintiff claims, 
 reserving the minerals, and a right of entry to get 
 them, to himself, under whom the defendants claim, 
 that right of entry is barred by simple non-user for 
 more than forty years, no other person having worked 
 or been in possession of the mines. And the Court had 
 not the slightest doubt that the title of the grantees 
 of the mines was not barred, in that case, under the 
 Statute of Limitations ; for they were "clearly of opinion 
 that that statute applies, not to cases of want of actual 
 possession by the plaintiff, but to cases where he has 
 been out of, and another in, possession for the pre- 
 scribed time. " There must be," they said, " both 
 absence of possession by the person who has the right, 
 and actual possession by another, whether adverse or 
 not, to be protected, to bring the case within the 
 statute." 
 
 If however a person conveys lands, with the mines Otherwise 
 and minerals under it, reserving to himself, not the '"'"'^'^''^ ^?o"*^ 
 
 ' _ o _ ' _ . tfl get mines 
 
 roiues and minerals, but a right to dig them, either in ouly is 
 
 common with the owners of the closes, or exclusively of 
 
 such owner, a different state of circumstances arises. 
 
 The grantor, if he wishes to retain his right, must do 
 
 some act in the exercise of it within a reasonable period, 
 
 certainly, I should say, within twenty years ; otherwise 
 
 he runs the risk of losing his right under the doctrine 
 
 of abandonment (/). He is then in the same position as Abandon- 
 
 a person to whom has been granted a right of common, "^'^^*^' 
 
 but who ceases to exercise that right of common for 
 
 upwards of twenty years. The mere cesser of use for 
 
 that period is not necessarily an abandonment ; for it 
 
 may be explained ; and the question of abandonment is 
 
 one of fact to be submitted to a jury. But the difference 
 
 between the two cases is this, — when the coals or other 
 
 (i) Ante, p. 166.
 
 220 
 
 PRESCRIPTIVE RIGHTS. 
 
 minerals are retained by the vendor, under an exception 
 of tlie same from his conveyance of the surface, he con- 
 tinues in the possession which he before enjoyed, not- 
 withstanding that now the sui'face has been severed 
 from the mines ; but he, to whom a right to work coal 
 or other mines has been granted, gets no possession 
 until he actually begins to work, and if, having a right 
 to work, he does not use it for a length of time, there is 
 evidence to go to the jury that he has abandoned it 
 altoorether. 
 
 Meaning of 
 the word 
 " minerals." 
 
 BcU V. 
 
 inison. 
 
 Ilcxt V. GUI. 
 
 A good deal of difficulty has sometimes arisen as to 
 the meaning of the word minerals. There is a case 
 of BcU V. Wihon (/i), in which that question was much 
 discussed. In that case a conveyance was made of land 
 in Northumberland, and a reservation was made to the 
 grantor, of all mines or seams of coal and other mines, 
 metals, or minerals under the land granted, with liberty 
 to dig, bore, work, lead and carry away the same and 
 to make pits, &c. It was held by the Lords Justices 
 Turner and Knight Bruce, varying the decree of Yice- 
 Chancellor Kiudersley, that the term ^' iiu>ierals^' in- 
 cluded freestone ; but that the grantor had liberty only 
 to get the freestone by underground mining, and not by 
 working in an open quarry. So in the case of Ilcxt v. 
 Gill {I), a reservation of all mines and minerals mthin 
 and under a copyhold tenement, with powers of working, 
 was held to comprise china clay ; but at the same time 
 the owner of tlie clay under the reservation was restrained 
 from getting it in such a way as to destroy or seriously 
 injure the surface. These cases suggest the remark 
 that in case stone, clay or other things, which can only 
 be gotten by open quarry working or digging, should 
 be intended to be excepted, they should be specifically 
 
 (/.■) L. R., 1 Ch. 303. missioiicrs, L. R., 7 Cli. D. 375, 
 
 (0 L. R., 7 Ch. 699. Sec also 379, 381. 
 Whklhorne v. Ecclesiastical Com-
 
 Mi>JES AjS^d minerals. 221 
 
 mentioned ; for, tliougli in strictness of law they are 
 undoubtedly minerals, yet tlie terms in wliicli they are 
 reserved may indicate an intention on the part of the 
 parties to the deed, that they should not be obtained, 
 otherwise than by underground mining ; and, if so, of 
 course it comes in many cases to this, that they cannot 
 be obtained at all. 
 
 The possession of coal or other minerals under the Incidental 
 surface of land carries with it, as incidental to such "° °^°^ ' 
 possession, the right to work the mines and all such 
 liberties and privileges as are ng^essary for the purpose 
 of such worldng, but not mowT In the case of The EariofCar- 
 Earl of Cardigan v. Armitage {in),ii is laid down by J^mUagc. 
 Mr. Justice Bailey, in delivering the judgment of the 
 Court of King's Bench, that the incidental power would 
 warrant nothing beyond what was strictly necessary for 
 the convenient working of the coals ; it would allow no 
 use of the surface, no deposit upon it to a greater extent 
 or for a longer duration than should be necessary, no 
 attendance upon the land of unnecessary persons. It 
 would be questionable at least whether it will authorize 
 a deposit upon the land for the purpose of sale, and 
 whether it would justify the introduction of purchasers 
 to view the coals. In consequence of the incidental 
 rights of the owner of mines and minerals being so 
 strictly limited, it is usual, when mines are reserved or 
 granted either in fee or for a term of years, to give 
 in express terms powers of working them, including 
 liberties of using the surface for works connected with 
 the mines, such as the deposit of rubbish, the erection 
 of engines and other works, of cottages for workpeople, 
 tramways, railroads, and such other matters as may be 
 considered useful or expedient for the purpose of work- 
 ing the mines intended to be granted or reserved. 
 But when it is wished to work one mine, by means of a 
 
 (m) 2 B. &C. 197, 211.
 
 222 
 
 PrtESCmPTIVE HIGIITS. 
 
 Way leaves. 
 
 In stroke and 
 out stroke. 
 
 Grantee of 
 mines may 
 use vacant 
 space. 
 
 "Way for one 
 purpose gives 
 no right for 
 another 
 purpose. 
 Cowling V. 
 Higginson. 
 
 Senhousc v. 
 Christian. 
 
 shaft in anotlier mine, so as to involve tlie carrying of 
 the coal from one mine across another, it must always 
 be borne in mind that a right for this purpose requires 
 to be specially granted. Eights of this kind are usually 
 called u-a II haves; and the working of mines, by passing 
 through underground passages in other mines, is called 
 working by in sfrolxc and out sfrolr. If a person is a 
 grantee either in fee or for years of the corporeal mine 
 and mineral under the surface, that is, of a horizontal 
 layer of the land itself, then, when the minerals have 
 been taken out, he has a right to use the vacant space, 
 which is his own, for any purpose he pleases ; and he 
 may accordingly make a profit of it by granting the use 
 of this vacant space as a way or passage to the owner 
 of any mine adjoining. But a person who has merely 
 an exclusive right to take mines or minerals under 
 certain land, has no right to authorize any other person 
 to carry mines or minerals through any vacant space 
 which may be left after the mines or minerals are taken 
 away. And whether a man be a grantee of the mines 
 and minerals themselves, or has only a right to take 
 them, he cannot, as against the owner of the surface, 
 use any pit or shaft by which the mine is worked for 
 the purpose of bringing up foreign coal got by him 
 from under other lands. For a right of way for one 
 purpose by no means necessarily implies a right of w^ay 
 for any other purpose. Thus in the case of Coicling v. 
 Ilifjfjimon {u), a right of way was shown to have existed 
 for many years ; and it was held that a proof of user 
 of the way for horses, carts, waggons and carriages for 
 agricultural purposes, would not support a claim to a 
 right to use the way for carrying coal obtained from 
 a coal mine, lying under the tenement in respect of 
 which the right was claimed. But in the case of 
 ScnJionse v. Christian (o), under the grant of a free and 
 convenient way for the purpose of carrying coal and 
 
 {») 4 M. & AV. 21.'). {<>) 1 T. Rop. r,GO.
 
 Ml^ES AND MIN^ERALS. 223 
 
 other articles, it was held that the grantee had a right 
 to lay a framed waggon way. It was, however, held 
 that, under the grant, he had no right to make a trans- 
 verse road across the parcel or slip of land, in, through 
 and along which a free and convenient way had been 
 granted to him. 
 
 When mines are reserved, the owner of the mines is Support to 
 bound to leave sufficient support to the surface, so as to '^^^ ^^'^' 
 keep it at its ancient and natural level. But this right 
 may be given up by the owner of the surface ; and 
 the mine-owner may then do as much damage to the 
 surface as he pleases. There is a case of Roichotham v. Ron-hotham v. 
 Wilson {])), in the House of Lords, where, on the ^ "''*'"'• 
 construction of a clause in an Inclosm-e Act, the owner 
 of the mines was held entitled to disturb the surface. 
 But although an express grant may be made by the 
 owner of the surface of the right to let it down by 
 working the mines underneath, it has been held that a 
 prescriptive right for the lord of a manor to work mines 
 under the copyhold messuages or tenements parcel of 
 the manor, without making compensation for any 
 damage occasioned to any messuages or other buildings 
 by such working, is void as an unreasonable prescrip- 
 tion. This was decided in the case of Hilton v. Earl Hilton v. Earl 
 GmnviUe (q). The authority of this case has, however, 
 been doubted, on the ground, apparently, that, as 
 prescription implies a grant, that which may properly 
 be granted may, with ec[ual propriety, be claimed by 
 prescription which implies a grant (r) . There is another Dul-e of 
 case in the House of Lords (s), which related to an ^^^i.^fi^l^^' 
 
 (p) 8 H. of L. 348. See also H. of L. 399 ; and of Lord 
 
 As2)den v. Sccldon, L. R., 10 Ch. Chelmsford in the same case, 
 
 394. p. 410; and the remarks of Hill, 
 
 [q) 5 Q. B. 701. V.-C, in Hall v. Byron, L. R., 
 
 (;■) See the judgment of Lord 4 Ch. Div. 678. 
 Hatherley, L. C, in DttJce of (.s) Duke of BiicclcHfjliv. JFaJce- 
 
 Bucchwjh V. iniJ.-cJield, L. R., 4 field, L. R., 4 H. of L. 377.
 
 224 
 
 PRESCRIPTIVE RIGHTS. 
 
 inclosiire of waste land belonging to a manor, under an 
 Act of Parliament. The parcel of land in question had 
 been sold under a provision of the Act to the defendant 
 for the purpose of defraying the expenses of the Act. 
 The Act, however, reserved to the lord of the manor all 
 mines, beds, seams and veins of coals, lead, copper, tin 
 and iron, and other mines and minerals whatsoever 
 fomid or thereafter to be found upon, with (which I 
 suppose meant within) or under the said lands or 
 grounds thereby directed to be divided and inclosed or 
 any part or parts thereof, with full power to enter to 
 search, bore and dig for coal and mines, and to sink 
 shafts and so forth, and to make pits and other neces- 
 sary works within or upon the land, in as full and 
 ample a manner to all intents and purposes as could 
 have been done if the lands had remained open and un- 
 inclosed, or the Act had not been passed ; yet never- 
 theless making reasonable compensation for damages 
 done by such works as aforesaid to the person sus- 
 taining such damage. The Court held that, under this 
 reservation, the lord might mine without any limit or 
 stint whatever, and might do that, which, if the soil 
 existed as common before, must have entirely destroyed 
 the soil for commonable purposes, namely, the stacking 
 of minerals upon the ground, and still more, the 
 building of permanent houses for workmen, and the 
 erecting of houses for smelting the ore, and the like, 
 which must have destroyed the surface for any purpose 
 whatever of common. The case, you see, depends 
 entirely on the wording of a section contained in an 
 Act of Parliament. It is important, however, as con- 
 taining in the discussion of the case a great deal of the 
 law upon this subject. 
 
 Ptiglit of A few words may not bo here out of place with 
 
 between^^ rcspect to the right of support of lands and buildings as 
 
 adjacent bctwccn neighbouring owners. The riglit of the owner 
 laudowners.
 
 MINES AND MINERALS, 225 
 
 of land to liave his surface soil supported not only by 
 the soil immediately below it, but also by the soil of 
 land adjacent to his own, is a right of property which 
 naturally exists. But if the owner builds upon his 
 land, he has no right to any further support for his 
 building; and the adjoining owner may excavate his 
 land so as to let down the building, provided that the 
 excavation so made would not have been sufficient to 
 let doTVTi his neighbour's soil, if it had remained unbuilt 
 on. But the adjoining owner may by grant, express 
 or implied (/), subject his land to the additional ser- 
 vitude of supporting buildings erected by his neighbour 
 on land adjacent. A servitude of this kind is not within 
 the Prescription Act(/^). But after twenty years Easement for 
 uninterrupted enjoyment of such an easement — for t^^n/njjt.^^ 
 easement it is — a title will be acquired under the 
 doctrine of the presumption of a lost grant (.r), — a 
 presumption which, it seems, will not be rebutted by 
 the clearest evidence that no such grant was in fact 
 made (y) . 
 
 By the Act of the reign of Queen Elizabeth for the 
 Eelief of the Poor (~) , the first Act passed in England 
 for making any provision for the poor, and which is 
 still in force, though largely amended, it is provided 
 that every occupier of, amongst other things, coal Coal mines 
 mines, should be taxed or rated for the relief of the Jj^e^poor^^ 
 poor. Coal mines alone being mentioned in the Act, it 
 was considered that no other mines were liable to be 
 rated for the relief of the poor ; and in order to amend 
 the law in this respect an Act was lately passed, called 
 the Rating Act, 187-i (r^). By this Act it is pro- The Eating 
 
 Act, 1874. 
 
 {() Elliot V. North Eastern XXI. 
 liailwnij, 10 H.of L. Cas. 333. (//) Aiiffus v. Dalton, L. R., 4 
 
 (m) Stat. 2 & 3 Will. IV. c. 71 ; Q. B. D. 1G2. 
 ante, p. 173. (r) Stat. 43 Eliz. c. 2. 
 
 {x) Atife, p. 170; ^^ost, Lecture {a) Stat. 37 & 38 Vict. c. 54. 
 
 W.P. Q
 
 226 PRESCRIPTIVE RIGHTS. 
 
 vided (h) that, after its commencement, the Poor Eate 
 Acts shall extend, amongst other hereditaments, to 
 mines of every kind not mentioned in the Act of 
 Elizabeth as if they had been mentioned in that Act. 
 Special provisions are made for ascertaining the rateable 
 value of tin, lead and copper mines (c), and under the 
 provisions of this section the term " lease " includes a 
 lease or sett or licence to work, or agreement for a lease 
 or sett or licence to work. And it is provided (c/) that 
 the hereditaments to which the Poor Eate Acts are 
 thereby extended shall be rateable to all local rates in 
 like manner as if the Poor Eate Acts had always 
 extended to such hereditaments. But (<?) nothing in 
 the Act shall apply to a mine of which the royalty or 
 dues are for the time being wholly reserved in kind or 
 to the owner or occupier thereof. 
 
 Local There are in several parts of the country local 
 
 cus om . customs as to mining, to which I cannot do more than 
 
 Cornwall and advert. Such are the customs of Cornwall and Devon 
 Devon. sviih. respect to tin mines, over whicli a Court, called 
 
 Stannary the Stannary Court, has jurisdiction, the amended laws 
 ■ with respect to which will be found in the Stannaries 
 
 Act, 1869 (/). The custom of tin-bounding, or inclos- 
 ing a portion of a wastrel or waste land for the purpose 
 of mining tin, is of great antiquity. And the working 
 of the mines is usually carried on on a system called 
 the cost book system, to which reference is made in the 
 Stannaries Act, 1809, to which I have just referred. 
 New orders, rules and forms of procedm-e in the 
 Stannary Court were issued by authority to take effect 
 Meuclipp. upon aud after the 14th of March, 187G, So the Forest 
 of Mendipp, in tlie county of Somerset, was once 
 famous for its lead mines, which were worked under 
 
 (/;) Stat. 37 & 38 Vict. c. 54, (d) Sect. 10. 
 
 s. 3. (e) Sect. 13. 
 
 {r) Sect. 7. (/) Stat. 32 & 33 Vict. c. 19.
 
 MINES AND iVriNERALS. 227 
 
 peculiar local customs. Again, tlio mining- customs of 
 the Forest of Dean and Hundred of St. Briavels, in the Forest of 
 county of Grloucester, are very peculiar, and have heen 
 regulated by divers acts of parliament, particularly by 
 stat. 1 & 2 Will. ly. c. 12, by which commissioners 
 were appointed to examine and report on the customs. 
 In pursuance of their report, the statutes 1 & 2 Vict, 
 cc. 42 and 43, were passed for dealing "with encroach- 
 ments made on the forest, and for regulating the 
 opening and working of mines and quarries within the 
 district. This Act has been followed by statutes 24 & 25 
 Yict. c. 40, and 34 & 35 Vict. c. 85, which make further 
 provision for the management of the forest and the 
 opening and working of mines and quarries therein. 
 So in the county of Derby there are several peculiar Derbyshire, 
 customs confined within certain districts. Thus certain 
 parts of the hundred of the High Peak in that comity 
 have customs which have been defined and amended by 
 stat. 14 & 15 Vict. c. 94. The mineral customs within 
 the Soke and Wapentake of Wirksworth and sundry 
 manors in the same county have been defined and 
 amended by a local Act, stat. 15 & 16 Vict. c. 163. 
 And there are other manors in the same county having 
 mineral customs not defined by any Act of Parliament. 
 The mineral customs in the county of Derby appear to 
 be confined to lead mines. The regulation and inspec- Mines Regu- 
 tion of coal and other mines, and the persons who may 1^*'°^ -'^'^*®- 
 be employed therein, are provided for by the Coal 
 Mines Eegulation Act, 1872 {rj), and the Metalliferous 
 Mines Eegulation Act, 1872 (//). 
 
 {ff) stat. 35 & 36 Vict. c. 76. (A) Stat. 3.5 & 36 Vict. c. 77.
 
 228 PREScRirxivE eights. 
 
 LECTURE XVI. 
 
 We now come to tlie consideration of tliose rights of 
 sporting wliicli are incorporeal in their nature, and 
 ■svhich range themselves under the head of frcoicJnses. 
 A fi-auchise. A francliise is a roj^al privilege belonging either to the 
 Crown, or to a subject by virtue of a grant from the 
 Crown, either express or implied by long enjoyment. 
 And I intend to consider in order the following fran- 
 chises : — a forest, a chase, a park, and a free warren ; 
 and afterwards to consider the right of hunting and 
 killing game on a manor, or on other lands which do 
 not constitute a manor. These incorporeal heredita- 
 ments come within the description of prescriptive rights. 
 Thus it is laid down by Lord Coke («), that to have a 
 park, warren and the like, a man may make a title by 
 usage and prescription only, without any matter of 
 record. 
 
 A forest. And, first, of a forest. There were in ancient times 
 
 large tracts of land called the king's forests. It by no 
 means necessarily followed that the whole of the lands 
 within the king's forests belonged to the king. It 
 often happened that a large portion of the lands in the 
 forests belonged to private persons, such as lords of 
 manors and others, who, living in the forest, were 
 subject to many oppressive restrictions laid upon them 
 for the purpose of preserving the game. The principal 
 treatise on the Law of Forests is that of Manwood. 
 
 Manwood'a Mauwood {h) defines a forest as follows, " A forest is a 
 certain territory of woody grounds and fruitful pastures, 
 privileged for wild beasts and fowles of forest, chase and 
 
 {a) Co. Litt. 114 b. [h) Man-wood, chap. 1, sect. 1. 
 
 Forest Law.
 
 A FOREST. 229 
 
 warreu, to rest and abide iu, iu the safe protection of 
 the king, for his princely delight and pleasure ; which 
 territory of ground so privileged is meered and bounded 
 with unremoveable markes, meeres and boundaries, 
 either known by matter of record or else by prescription, 
 and also replenished with wild beasts of venery or chase, 
 and with great coverts of vert, for the succour of the 
 said wild beasts, to have their abode in. For the pre- 
 servation and continuance of which said place, together 
 with the vert and venison, there are certain particular 
 lawes, privileges and officers belonging to the same, 
 meet for that purpose, that are only proper unto a 
 forest, and not to any other place. Therefore a forest doth 
 chiefly consist of these four things, that is to say, of vert, 
 venison, particular lawes and privileges, and of certain 
 meet officers appointed for that purpose, to the end that 
 the same may the better be preserved and kept for a 
 place of recreation and pastime, meet for the royal 
 dignity of a prince." A forest, however, notwithstanding 
 this definition, certainly may belong to a private person 
 by grant from the Crown. In former times large tracts 
 of land were turned into forests, for the recreation of 
 the Norman kings ; " We may read, " says Man wood (c), 
 " of some kings of this land that when they made 
 forests they did pull down both houses and churches 
 that were within the same and so thereby caused an 
 utter depopulation of that place for the quiet of the 
 wild beasts." Manwood seems rather to have approved 
 of these proceedings, for he draws from them the follow- 
 ing argument. " Then much more, if by the laws of 
 this realm, kings and princes may pull down houses and 
 churches that are already builded to make forests in 
 such places where they please to have forests, they may, 
 by the same laws, restrain and forbid all inhabitants 
 and all those that have lands or woods within forests 
 (that have been ancient forests a long time) to new 
 
 (c) Chap. 10, sect. 1.
 
 230 
 
 PRESCRIPTIVE RIGHTS. 
 
 Charta dc 
 Forest u. 
 
 erect or build any more houses or buildings than are 
 abeady builded there, without especial licence of the 
 king or his justice in eyre." The people of England, 
 however, took a different view, and several acts of par- 
 liament were passed at different times for the purpose 
 of remedying the mischief thus occasioned. I may 
 mention particularly the Charta de Foresta {d), which 
 contained several enactments for the regulation of the 
 forests. The first of these was (f), that all forests which 
 Kmg Henry our grandfather afforested, should be 
 viewed by good and lawfid men ; and if he had af- 
 forested any other wood than his own demesne, to the 
 damage to him whose wood it was, it should be dis- 
 afforested ; and if he afforested his own wood, it should 
 remain forest, saving the common of herbage and of 
 other things in the same forests to them which before 
 were accustomed to have the same. 
 
 Beasts of 
 forest. 
 
 Forest laws. 
 
 Lawinj 
 dosrs. 
 
 of 
 
 Beasts of forest are the hart, the hind, the hare, 
 the boar and the wolf ; but all beasts of venery are 
 equally protected in a forest, because a forest compre- 
 hends within it a chase, a park and a free warren. The 
 forest laws were very oppressive. Amongst other 
 things it was forbidden for any person living within 
 the forest to keep any kind of dog, except a mastiff and 
 certain little dogs which were suj)posed to be harmless. 
 A mastiff was thought necessary for the protection of a 
 person's dwelling. And even a mastiff had to be lawcd 
 or expeditated according to the forest law, that is, the 
 three claws of the forefoot had to be cut off, in order to 
 prevent him from seizing the deer. The exact manner 
 of doing this is thus explained by Manwood (./'). "The 
 mastiff being brought to set one of his forefeet upon a 
 piece of wood of eight inches thick, and a foot square, then 
 one with a mallet, setting a chissell of two inches broad 
 
 {d) Stat. 9 HcD. III. 
 (c) Chap. 1. 
 
 (/) Chap. IG, sect. 8.
 
 A FOREST. 231 
 
 upon the three claws of his forefoot, at one blow doth 
 smite them clean off ; and this is the manner of ex- 
 peditating of mastiffs." 
 
 No person having lands within a forest could plough 
 up any part of his lands which had not been ploughed 
 up before; and to do so was considered a grievous 
 offence, and was called an assart. Mamvood treats of Assart, 
 assarts in the 9th chapter of his work ; he says {(/) that an 
 assart by the laws of the forest is accounted one of the 
 greatest offences or trespasses that can be done to the 
 vert of the forest. "For whereas a waste of the forest is 
 but the felling or cutting down of the coverts, Avhich 
 may grow again and become coverts in time, an assart 
 is the plucking up of those woods by the roots that are 
 thickets or coverts of the forest, to make the same a 
 ])lain or arable land ; so that where woods or thickets 
 or any other land is assarted, that land cannot grow 
 again to become coverts. And therefore the same, 
 being more than a waste of the forest, is called an 
 assart." And the punishment for an assart was, that 
 the whole piece of ground that is assarted, be it in 
 woods, meadow, or pasture, or any other assart of the 
 forest, shall be seised into the king's hands ; and so it 
 shall remain in his hands, until such time that the 
 OAvner of the same replevied it and made his fine to the 
 king for that offence. Another offence was what was 
 called purprcsture within the forest ; that was where Purpresture. 
 any man made any manner of encroachment upon the 
 forest, either by building or inclosure, or by using of 
 any liberty or privilege without lawful warrant so to 
 do. No fence within a forest was allowed to exist to Fences all 
 any greater height than four feet ; the intention being f^ct. 
 that the deer should have the full run over the whole 
 of the forest, whether the lands were cultivated or not ; 
 and it was supposed that, whilst the deer could leap 
 
 (y) Chap. 9, sect. 1.
 
 232 
 
 rRESCRlPTIVE KIGHTS. 
 
 No feucc 
 
 without 
 
 licence. 
 
 Builcliu"'.- 
 
 over a fence four feet Iiigli, the erection of any higher 
 fence would prevent them from getting over. And 
 not only that, but no new fence at all, of any height 
 whatever, could be erected within any part of the 
 forest, without the licence of the Crown or other owner 
 of the forest. Every building erected within the forest 
 without the licence of the Crown, or other owner of the 
 forest, was liable to be pulled down, or else to pay 
 yearly a certain rent to the king, for suffering the same 
 to remain, at the choice and discretion of the lord 
 chief justice in eyre of the forest. 
 
 Common of 
 pastiu'e in 
 forests. 
 
 Horses and 
 cattle only. 
 
 The fence 
 month. 
 
 A"-istors. 
 
 Pannan-e. 
 
 As some compensation for the annoyance which the 
 inhabitants within the forest experienced from the deer 
 and other game therein, they were allowed rights of 
 common of pastiu'e on the waste lands within the 
 forests. But these rights were only for horses and 
 cattle, and not for sheep, swine, or goats ; because they 
 were considered unpleasant to the wild animals within 
 the forest, and, as it was said, they caused their exile 
 from the forest. There was one month called the fence 
 mouthy when the deer were breeding, during which it 
 was not lawful for the inhabitants to exercise their 
 rights of common of pasture. And that was a fort- 
 night before Midsummer-day, and a fortnight after 
 that time. There were certain officers appointed, called 
 agistors, whose duty it was to make profit of the king's 
 woods within the forest, by letting them out for the 
 feeding of hogs or swine, with the mast of the woods, 
 v/hich was (fs^a^ pauiuKjc ov pannage [Jt). For although 
 no man might put these disagreeable animals into the 
 waste lands of the forest to feed there, there was no 
 objection to his doing so when the mast and acorns 
 were ripe in the Avoods, provided he paid to the Crown 
 the necessary pawnage. The time of pawnage in the 
 king's demesne woods began on Holy Rood-day, which 
 
 {h) Anlc, pp. 1G8, 189.
 
 A FOREST. 233 
 
 was fifteen days before the feast of St. Michael or 
 Michaelmas, and ended forty days after the feast of 
 St. Michael, that is, about the feast of St. Martin, 
 when the agistors were required to meet together to 
 receive the pawnage. Freeholders and others, who had 
 woods and lands within the forest, might agist them for 
 the mast thereof, at such times as were most convenient, 
 when the mast was ripe and ready to be agisted. This 
 agistment of mast durin^: the autumn is a different 
 thing from putting swine to feed upon the waste lands 
 at other tunes within the forest. 
 
 Not only the forest itself, but also certain lands sur- 
 rounding it were subject to special regulations. The 
 piiiiicKS of tlie forest were grounds adjoining to the Pui-licus. 
 forest, meered and bounded, as mentioned by Man- 
 wood (/), with immoveable marks, meeres and boun- 
 daries known by matter of record only; W'hich terri- 
 tory of ground w^as also once forest, and afterwards 
 disafforested again. Those who had woods and land 
 within the purlieu were said to be uithout the regard 
 of ihc forest ; and therefore they were absolutely free 
 from the bondage of the forest, in respect of felling 
 their woods, and converting of their meadows and pas- 
 tm"es into arable land and tillage, and otherwise im- 
 proving the same at their own pleasure, to then- best 
 advantage and profit (/.•) . A purlieu man was allowed Huntiug- by 
 to hunt in his own grounds, within the purlieus, subject ^^^ 
 to strange regulations ; one of which was, that he was 
 not to hunt oftener than three days a week; lest, by 
 often hunting, he should cause the disquiet of the wild 
 beasts of the forest ; nor with any more company than 
 his own servants ; nor within forty days after the king's 
 general hunting in the forest ; because then the wild 
 beasts were scared out of the forest, and did not go out 
 of themselves. Nor within forty days before the king's 
 
 (i) Chap. 20, sect. 1. {h) Manwood, chap. 20, sect. 6.
 
 234 
 
 rHESCllIPTlVE RIGHTS. 
 
 general LuntiDg; because then the wild beasts must not 
 be disquieted; to the end that the king may have a full 
 view of them. Nor was he to forestall or take the deer 
 with gun or cross-bow, but only by chasing with his 
 dogs. 
 
 Courts and 
 officers of a 
 forest. 
 
 Forty day- 
 court. 
 Court of 
 regard of 
 dogs. 
 
 Court of 
 Swainmote. 
 
 Court of 
 Justice Seat. 
 
 There were certain Courts attached to the forest for 
 the government thereof, and officers, the principal of 
 whom were the verderers of the forest ; and under them 
 foresters, rcgarders, keepers, woodwards and other ser- 
 vants. The principal Courts were, first, the Court of 
 attachments or the woodmote Coiu't, which was held 
 before the verderers every forty days, and was therefore 
 called the Forty Day Com-t. This Coiu-t could only 
 inquire as to offences against the forest law, but could 
 not convict. Secondly, the Court of regard or survey 
 of dogs, which was holden every thu'd year for the 
 expeditatiug or lawiug of dogs. Thirdly, the Court of 
 Suriiiujiofc, of which the verderers were judges. This 
 Court was holden three times in the year ; and all free- 
 holders within the forest were bound to attend ; • and 
 also the reeve and four men of every vill or town 
 within the forest. And, lastly, the Coui't of the Justice 
 Seat, holden before the chief justice of the forest, called 
 the justice in eyre. This Comi could not be held 
 oftener than every third year ; and it was required to 
 be summoned forty days at least before its sitting. 
 This Coiu't had jurisdiction over all offences against the 
 forest laws, and also determined on all franchises and 
 liberties claimed by any persons within the forest. A 
 report of the proceedings of one of these Courts with 
 respect to Windsor Forest will be found in Sir W. 
 Jones's Eeports (/). An appeal lay from the Court of 
 Justice Seat to the Court of King's Bench {m). 
 
 {/) Tp. 2GG et scq. 
 
 (w) Sec Coke's Fourth Insti- 
 tute, 293.
 
 A FOREST. 235 
 
 The mischief occasioned Ly such a state of thin^^s Mi.scliief of 
 could hardly he exaggerated. It put an end to all " 
 improvements and reclamation of waste lands, holding 
 the cultivation of such lands, which would otherwise 
 have been a profit, to be a most serious offence. It 
 subjected all the crops, that were raised by the inhabi- 
 tants, to be eaten by the deer at their own pleasure ; 
 and it prevented a single house or building of any kind 
 from being erected in the forest, without the licence of 
 the Crown or other owner of the forest. It is not to be 
 wondered at, therefore, that complaints were frequently 
 made. And in the reign of King Charles I. an Act of 
 Parliament was passed for ascertaining with certainty 
 the limits of the different forests then existing. This 
 Act was the IGth of Charles I. chap. 16 ; and it pro- Stat. 16 
 vided (») that no place in England or Wales, whore no 
 justice seat, swainmote, or Court of attachment had 
 been held or kept, or where no verderers had been 
 chosen, or regard made, within the space of sixty years 
 next before the first year of his then majesty's reign, 
 should at any time thereafter be adjudged or taken to 
 be forest, or within the bounds or metes of the forest ; 
 but the same should be, from thenceforth for ever 
 thereafter, disafforested and freed and exempted from 
 the forest laws. Provision was made (o) for the ap- Commis- 
 pointment of commissioners to ascertain the bounds of po^ted!^^' 
 the different forests. And it was provided (j;) that all 
 the places that should be without the bounds, to be 
 returned and certified by the commissioners, should be 
 from thenceforth free, to all intents and pm^poses, as if 
 the same had never been forest or so reputed. But the Saving of 
 Act provided {q) that the tenants, owners and occupiers ri„-hts. 
 of lands and tenements, which should be excluded from 
 the bounds of the forest, to be returned and certified by 
 virtue of any of the said commissions, should use and 
 
 (h) Sect. 5. {p) Sect. 7. 
 
 (o) Sect. 6. \q) Sect. 9.
 
 236 
 
 PRESCRIPTIVE RIGHTS. 
 
 The New 
 Forest. 
 
 Epping 
 Forest. 
 
 Comiiilsnioin 
 of Sewers V. 
 Glassc. 
 
 enjoy such commou and other profits and easements 
 within the forests as anciently or accnstomably they 
 had used and enjoyed. Since that time most of the 
 forests have been disaiforested, though a few still re- 
 main. Amongst them is the New Forest in Hamp- 
 shire, which is regulated by special enactments passed 
 for the purpose. And another is the notable one of 
 Eppiug Forest, in which the rights of common, which 
 were granted as compensation for the forestal rights of 
 the Crown, have been used as a means for keeping open 
 the waste lands of the forest for the recreation of the 
 public. The decision of the present Master of the 
 liolls in the case of The Comnmsioners of Seiccrs v. 
 Glassc {)•), was, as we have seen, to the effect that all 
 the owners and occupiers of lands within the forest, had 
 a right of common of pasture for cattle commonable 
 within the forest levant and couchant on their respec- 
 tive tenements, over all the waste lands of the forest, 
 and not merely over the waste lands of the different 
 manors, of which their tenements were held. In some 
 cases the forestal rights of the Crown over portions of 
 Epping Forest had been sold to the different lords of 
 manors; but such sale was evidently of no avail against 
 the rights of common of pasture of the owners of tene- 
 ments within the forest. 
 
 A chase. 
 
 Beasts of 
 chase. 
 
 A chase is the next subject for our consideration. A 
 chase is in many respects similar to a forest. The main 
 difference between them is, that a chase is not subject 
 to any of those peculiar laws, which are administered 
 by the officers of a forest. Boasts of chase are said to 
 be the buck, the doe, the fox, the martin, and the roe. 
 If the Crown should grant to a subject a royal forest, 
 without any words enabling him to hold Courts, the 
 grantee would become seised of a chase and not of a 
 
 {)■) L. E., 10 E(i. 134 ; ante, pp. 51, 55.
 
 A CHASE. 237 
 
 forest {s) . King Henry VIII. made a cliase in the neigh- 
 bourliood of Hampton Court Palace, called Hampton Hampton 
 Court Cliase; but, in order to do this, he was obHged to ^°'"'* ^^''''^• 
 obtain the consent of the freeholders and copyholders, 
 in the towns and villages over which the chase ex- 
 tended. The agreement which he made with them was 
 contained in an indenture, which was confirmed by an 
 Act of Parliament, of the 31st of Hen. VIII. chap. 5. Stat. 3i 
 The freeholders and copyholders stipulated for licences ^'^^' ^ 
 to fell and take their woods, groves and coppices at 
 their will and pleasure, without any view of the Crown 
 officers, and to make hedges and fences about their 
 corn, and to keep out the deer ; and, not only that, but 
 a third part of the free rent of every freeholder was 
 deducted ; and the moiety of the fine of the heir of 
 every copyholder was also deducted. On this Lord 
 Coke remarks (/), " It hereby plainly appeareth, both 
 by the king's said indenture and by the judgment of 
 the whole Parliament, that the king could neither erect 
 Ttny chase or forest over any man's grounds, without 
 their consent and agreement. And yet King Henry 
 VIII. did stand as much on his prerogative as any king 
 of England ever did." Any person who had woods 
 within a chase might cut down timber or woods grow- 
 ing thereon, without view of any officer, or licence of 
 any person ; but if he cut down so much as not to leave 
 sufiicient covert for the game, he was to be punished at 
 the king's suit, if the chase was a royal chase. And so, 
 if' a common person had liberty of chase in another 
 man's wood, the owners of the wood could not cut 
 down all the woods, but were obliged to leave sufficient 
 for covert, as had been accustomed ; no more, as Lord 
 Coke says (»)> than the owners of v/oods, in which 
 others have common of estovers, can destroy the whole 
 woods, but must leave sufficient for the estovers (.r). 
 
 (i) Coke's Fom-tli Institute, p. («) Fourth Institute, 298. 
 
 311. {x) See ante, pp. 18, 18G. 
 
 {t) Fourth Institute, 301.
 
 238 
 
 A park. 
 
 Free ■waiTcn. 
 
 The Case of 
 3fo»oj)olus. 
 
 Forms of 
 grant of 
 free wancn. 
 
 PRESCHIPTIVE RIGHTS. 
 
 AVo next come to a park. A park is an inclosed 
 chase, extending over a person's own groimds, and 
 privileged for beasts of forest and chase, either by the 
 king's grant or by prescription. To a park it is said 
 three things are necessary — 1st, a grant from the 
 Crown. This, however, may be implied by long usage 
 under a title of prescription (//). 2ndly, inclosure by 
 pale, wall or hedge. 3rdly, beasts of park, such as buck, 
 doe, &c. When all the deer are destroyed, it shall be 
 no more accounted a park, which consists of vert, 
 venison, and inclosure; but if it be determined in any 
 of these, it is a total disparking. The law on this 
 subject is well laid down in Cruise's Digest (~). 
 
 A free warren is a franchise to have and keep certain 
 wild beasts and fowls, called game, within the precincts 
 of a manor, or other known place; in which animals 
 the owner of the warren has a property, and conse- 
 quently a right to exclude all other persons from 
 hunting and taking them. This franchise, like that of 
 chase or park, must be derived from a royal grant, or 
 from prescription, which supposes such a grant. It is 
 laid down in the Case of Monopolies {a), that none can 
 make a park, chase or warren, without the king's 
 licence; for that is quodam modo to appropriate those 
 creatures, which are truly /era; ncdurcc et millins in bonis, 
 and to restrain thom of their natui\al liberty, which he 
 cannot do without the king's licence ; but for hawking, 
 hunting, &c., which are matters of pastime, pleasure and 
 recreation, there needs no licence; but every one may, 
 in his own land, use them at his pleasure, without any 
 restraint to be made, unless by parliament. Grants 
 of free warren were frequently made by the Norman 
 kings ; and the following is the usual form in which 
 these grants were made. " That ho and his heirs for 
 ever should liave free warren, in all his demesne lands 
 
 (//) Ante, p. 228. 
 
 (;) Vol. 3, p. 217, tit. Frau- 
 
 chise, sects. 15 — 18. 
 {'() 1 1 Rop. 87 b.
 
 FREE WARREN. 239 
 
 of such a place in siicli a county, provided tliat tliose 
 
 lands be not within the bounds of our forests, so that no 
 
 one should enter such lands to hunt in them, or to take 
 
 any thing which belongs to warren, without the licence 
 
 and consent of the said grantee or his heirs, under 
 
 forfeiture of ten pounds." Beasts of warren are hares Beasts of 
 
 and rabbits ; and fowls of warren are pheasants and '^^'^^■^■'^'"• 
 
 partridges (b) ; and the effect of a grant of free warren wan-en. 
 
 is to vest in the grantee a qualified property in these 
 
 beasts and fowls of the above description, that are on 
 
 the lands comprised in the grant, as long as they 
 
 remain there, and even after they are hunted out of the 
 
 warren, but not after they have strayed of their own 
 
 accord. The grantee of a free warren has a right to 
 
 appoint a person to watch over and preserve the game, 
 
 called a warrener. llights of free warren, when granted 'Wan-euer. 
 
 by the Crown, were always rights extending only over 
 
 the lands of the grantee, and not over the lands of any 
 
 other person. But, in course of time, the land might 
 
 belong to one person, and the free warren over the land 
 
 to another. Thus a person, having free warren over 
 
 certain lands of his own, may alien them, reserving the 
 
 warren. The warren would then be a warren in Warren in 
 
 gross {e). If he aliens the lands, without reserving the S^'^^^- 
 
 right of warren to himself, it is determined and gone; 
 
 for the alienor has parted with his right to the lands, 
 
 discharged of all things ; so that he cannot have it ; and 
 
 the alienee cannot have it, because it is not granted to 
 
 him, but only the land. An action of trespass will lie Trespass on 
 
 by the owner of a free warren against any person who ^^'^^^"^"• 
 
 enters the warren and takes or drives away the beasts 
 
 or fowls of warren (d). Eights of free warren still 
 
 exist in many places, and are very important in case of 
 
 the inclosure of the waste lands of a manor under an 
 
 (Z-) Not grouse; Duke of Devon- Winn, L. R., G H. of L. 223. 
 shire V. Lodge, 7 B. & 0. 3G. {d) Com. Dig. tit. Tresijass 
 
 (i") See Earl Beaxchamp v. (A. 2).
 
 240 
 
 rRESCRirTIVE RIGHTS. 
 
 Inclosui'e Act. The lord's riglit of free warren remains 
 in him, nnless he be expressly deprived of it. But if 
 there be no right of free warren, the right which the 
 lord has of sporting over the wastes, simply by reason 
 of his ownership of the soil, is destroyed as soon as the 
 soil is taken away from him, and allotted to other 
 persons under the pro\isions of an Inclosure Act. 
 
 Right of 
 sportiug on a 
 niau's own 
 lauds. 
 
 Blackstone's 
 contention. 
 
 Professor 
 
 Christian's 
 view. 
 
 JiiJjiii.ion 
 ]l'ray. 
 
 "With regard to the right of sporting on a man's own 
 lands, irrespective of any grant of free warren, there 
 has been much learned controversy. Blackstone con- 
 tends that the sole property of all game in England, 
 and consequently the exclusive right of taking and 
 destroying it, is vested in the Crown. He holds [o] that 
 no man but he who has a chase or free warren, by grant 
 from the Crown, or prescription which supposes one, 
 can justify hunting or sporting on another man's soil, 
 nor indeed, in thorough strictness of common law, either 
 hunting or sporting at all. But Professor Christian, in 
 his notes on Blackstone's Commentaries, opposes this 
 doctrine ; and certainly the general opinion now seems 
 to be in accordance with Lord Coke's view (/), that 
 every owner of land has, by vii'tue of his ownership, the 
 right to kill game upon his own land. The right, how- 
 ever, which exists in game ratione soli would be subser- 
 vient to the franchise of free warren over the same land, 
 if any such franchise were proved to exist. Questions 
 with regard to sporting not unfrequently arise on the 
 language of Inclosure Acts. Thus in the case of Rohin- 
 soii V, JFrdf/ {(j) , there was a reservation in an Inclosure 
 Act to the lord of the manor of a right to enjoy, search 
 for and work all mines, minerals, and oflier rigJdH and 
 2)rmkges in the said waste {except tlie right to the soil 
 thereof, for which a compensation was thereby directed 
 to be made) in as full, ample and beneficial a manner, 
 
 (c) 2 Black. Com. 417. {</) L. R., 1 C. P. 490. 
 
 (/) A»te, p. 238.
 
 Jieldy. Dixon. 
 
 SPORTING. 241 
 
 as if tlie Act had not been made. It was held that the 
 effect of the Act was to take from the lord his right to 
 the soil of the waste, and with it the exclusive right of 
 sporting thereon. On the other hand, in the case of 
 Lord Leconfield v. Dixon {h), it was held by the Court ^°l'f ^%°"' 
 of Exchequer Chamber, reversing the judgment of the 
 Court of Exchequer, that an exclusive right of sporting 
 over the allotments under a private Inclosure Act was 
 reserved to the lord of the manor ; although, before the 
 Act, the lord did not have any right of free warren over 
 the lands inclosed. The Act provided that the lord 
 should have all rents, &c., piscaries, fishing, liunting, 
 haivking, and folding, and all hcanh and birds considered 
 as game, 8)"c., and all other royalties, liberties, privileges, 
 franchises, pre-eminences, jurisdictions and appurte- 
 nances, in as amjile a manner as they were then or had 
 been theretofore used, exercised and enjoyed by him, or 
 as he might or could have held, used, ^c. the same, in case 
 the Act had not been passed. The Court below (?) relied 
 much on the inconveniences to the owners of the lands 
 arising from the reservation to the lord of such a right ; 
 and they considered that the lord had no royalty, fran- 
 chise or privilege of shooting game over the land, his 
 right being merely that of the owner of the soil. But 
 the Court of Exchequer Chamber were of opinion that 
 the words of the Act were a sufficient expression of an 
 intention to preserve to the lord the right of taking the 
 game, to which he was previously entitled ; although it 
 was a right arising from his ownership of the soil, and 
 not in the nature of a seignorial right. They relied 
 upon a case in the House of Lords, of Ewart v. Eica>-t v. 
 Graham (/.•). In that case there was no right of free 
 warren in the manor ; and an Inclosure Act provided 
 that nothing therein contained should prejudice the 
 right of Sir James Graham, his heirs and assigns, lords 
 
 (/() L. E,., 3 Exch. 30. (A) 7 H. of L. Cas. 331. 
 
 i) L. R., 2 Exch. 202. 
 W.P. R 
 
 Graham.
 
 Smith. 
 
 242 PRESCRIPTIVE RIGHTS. 
 
 of the manor, of any seignory, &c. belonging to such 
 manor ; but that the said Sir James Graham, his heirs 
 and assigns, should and might, at all times thereafter, 
 enjoy all rents, services, &c. and also all ricjlits of hunting, 
 aliooting, fishing and fon-Jing, on, through and over the 
 said stinted pasture, which was allotted under the Act, 
 and every part and allotment thereof, and all other 
 seignories, royalties and privileges to the lord of the 
 manor for the time being incident or belonging (other 
 than those declared to be barred by the Act) in as full 
 a manner as if the Act had not been passed. It was 
 held by the House of Lords that this proviso did not 
 apply to mere manorial rights ; but that the exclusive 
 right of hunting and shooting over the allotments was 
 thereby reserved to Sir James Gfraham. The last case 
 Sou-erhij v. upon this Subject that I am aware of is that of Soicerhy 
 V. Smitli (/). This case is remarkable for the difference 
 of opinion which prevailed amongst the judges, both 
 in the Com-t below and in the Court of Appeal. The 
 majority of the Court of Appeal affii-med the decision of 
 the majority of the Court below, and decided that the 
 Inclosui'e Act, which was the subject of contest in that 
 case, did not reserve to the lady of the manor the right 
 of shooting, which she formerly possessed over the lands 
 allotted under the Act, by virtue of her ownership of the 
 soil. The reservation in this case was as follows : — That 
 nothing in the Act contained should prejudice the right, 
 title or interest of the lady of the manor, her heirs and 
 assigns, in or to the seignory or royalties incident or 
 belonging to the manor ; but that she might hold and 
 enjoy all rents, quit reuts and other rents, reliefs, duties, 
 customs and services, and all courts, perquisites and 
 profits of courts, rights of fishery, and liberty of hawking, 
 hunting, coursing, fishing and fowling, within the said 
 manor, and all tolls, fairs, &c., royalties, jurisdictions, 
 
 {I) L. R., 8 C. P. 514, affirmed by Exchequer Chamber, L. R., 
 9 C. P. 52t.
 
 SPORTING. 243 
 
 francliises, matters and things whatsoever to the said 
 mcoior, or to t/te lord or Iiidij tlicrcof, incidoit or beloiujiiif/, 
 or which had been theretofore held and enjoyed by the 
 lady of the manor or any of her ancestors, other than 
 and excejyt such common right as could or might he claimed 
 bg the said lady of the manor as ou-ner of the soil and 
 inheritance of the said commons or waste grounds. The 
 Court distinguished the case from that of En-art \. 
 Graham, on the ground that, in that case, there was an 
 express reservation of all rights of hunting, shooting, 
 fishing, and fowling in the stinted pastures about to be 
 inclosed ; whilst, in the present case, there was no reser- 
 vation of the previously existing right of sporting over 
 the waste lands about to be inclosed, but only of a 
 general right inherent in the lord as incident to the 
 manor ; which right failing, the reservation fails to 
 have any effect. So diificult does it seem to be to frame 
 a proper provision upon this subject. The framers of 
 these Acts do not seem to have borne in mind the fact, 
 that rights of sporting arise either from grants of free 
 warren or from the ownership of the soil ; and that, in 
 the absence of a right of free warren, if you take away 
 the ownership of the soil, you of course take away the 
 right of sporting incidental to such ownership. The 
 right of sporting which a lord of a manor has over a 
 waste, in the absence of any grant of free warren, is 
 merely a right incidental to the ownership of the soil ; 
 and if that right is intended to continue, after the 
 ownership of the soil has been parted with, a new right 
 is in fact intended to be given to him, and one of a 
 kind most inconvenient to the owner of the land 
 allotted. It must be reserved to the lord, not as a 
 manorial right, which it is not (;;?), but as a new right, 
 expressly created by the Inclosure Act, which intends 
 to give the lord this privilege. 
 
 {m) Pannell v. MlJh 3 C. B. 62.3. 
 R 2
 
 244 PRESCRIPTIVE RIGHTS. 
 
 Eights of A riglit of sporting, like a riglit of common of pas- 
 
 rateaUe to ^ ^^^'^ {)i), was formerly not rateable to the poor ; but by 
 
 the poor. the Eating Act, 1874 (o), the Poor Eate Acts are 
 
 extended, amongst other things, to rights of fowling, of 
 
 shooting, and of taking or killing game or rabbits, when 
 
 severed from the occupation of the lands. 
 
 (;0 Ante, p. 202. (o) Stat. 37 & 38 Vict. c. 54.
 
 ( 245 ) 
 
 LECTURE XVII. 
 
 The rights of common wliicli I have hitherto spoken 
 of, are, most of them, rights which arose in a primitive 
 state of society, and which are unfitted for society as it 
 now exists. The right of common of pasture was valu- 
 able in times when green crops were not thought of, 
 and when the improvements which have now taken place 
 in the breed of cattle and sheep, had not rendered these 
 animals so tender and valuable as they now are. It 
 came in process of time to be perceived, that it would 
 be in every way more profitable, both to the owner of 
 the soil of uncultivated ground, and to tliose who had 
 rights of common upon it, that the laud should be Benefits of 
 inclosed, and divided amongst them in proportion to their i^^closui-e. 
 respective rights ; — giving to the owner of the soil a 
 part, in compensation for his rights of ownership of the 
 soil ; and dividing the rest amongst the commoners, in 
 proportion to the value of their respective rights. And, 
 whether the rights were rights of common of pasture, 
 or rights of common of turbary, of estovers, or of 
 digging sand and gravel, or the like, the same principle 
 was equally applicable. In most cases, especially where 
 the soil was good, it was to the advantage of all parties, 
 that the land should be inclosed and divided amongst 
 those who could substantiate any interest in it, in pro- 
 portion to their respective rights. The statutes of The statutes 
 Merton («) and of Westminster the Second (h) were in- Westmin^tOT 
 sufficient for tbis purpose. They related only to common t'^e second in- 
 
 . sufficient. 
 
 of pasture ; and all that they did v/as to enable the lord 
 to approve or inclose a portion of the waste for his own 
 benefit, provided he left for the commoner sufficient 
 
 («) Stat. 20 Hen. III. c. 4; {b) Stat. 13 Edw. I. c. 4G; 
 
 aute, p. 103. ante, p. 109.
 
 246 
 
 PRESCRIPTIVE RIGHTS. 
 
 Agreements 
 between lord 
 and com- 
 moners. 
 
 pasture, ■witli convenient riglits of ingress and egress. 
 By these statutes no compensation was given to the 
 commoners for their rights ; nor in fact were their rights 
 given up, for it was essential to an inclosui'o imcler these 
 statutes, that tlio owner of the soil should be able to 
 show that tlic approvement might take place without the 
 slightest injury to any of the commoners. 
 
 The first attempts at an inclosure of waste lands 
 subject to common rights, appear to have been made by 
 mutual agreement between the lord, or owner of the 
 soil, of the one part, and the tenants having common- 
 able rights of the other part ; which agreements were 
 sometimes specifically enforced by the Court of Chancery 
 or Court of Exchequer which at that time had an equit- 
 able jurisdiction. And afterwards, when it came to be 
 doubted whether the decree of the Court of Chancery 
 was sufficient for the purpose, these agreements were 
 confirmed by private Acts of Parliament. 
 
 A specimen of a private agreement for the inclosure 
 of a portion of the lands, adjoining the manor house 
 vm of Aston, of the lord of a manor, occurs in the case of the vill 
 or township of Aston and the hamlet of Cote, in the 
 county of Oxford, to which I called your attention in 
 a former Lecture (c). In that case Thomas Horde, Esq., 
 was lord of the manor of Aston Boges, which comprised 
 a part, but by no means the whole, of the lands in the 
 vill of Aston and hamlet of Cote. And he had a large 
 manor house, in which he dwelt ; and this house with 
 its immediate grounds was situate between a large waste 
 called Cote Moor on the one side, and open arable lands, 
 composing Cote common field, on the other side. And 
 the house, being exposed and lying open on every side 
 to great and wide fields, commons, and wastes, which 
 were frequently, and especially in the winter, wholly 
 
 {(■) Lecture VII., ante, p. 8C.
 
 INCLOSURK. 247 
 
 surrounded by water, became very unhealthy. An Agreement 
 agreement was accordingly entered into between the ofVponTraWo 
 lord of the one part and the landowners of the other common field 
 part, dated the 20th of March, in the foiu'tcenth j-ear 
 of the reign of Charles II., by which it was agreed that, 
 not only the lord, but also any of the tenants and 
 owners of land in Aston and Cote, might inclose all or 
 any part of their respective arable lands there ; and in 
 particular, that Mr. Horde, the lord of the manor, might, 
 as soon as he pleased, inclose fifty-four field acres of 
 arable land, lying together in the field called Holwell 
 Field, next to his capital messuage, in Cote aforesaid (c/) ; 
 which said fifty-four acres are thereby declared to be as 
 much arable as usually belongs to two yard lands in 
 Aston and Cote, thus showing that in this district a 
 yard land consisted of the half of fifty-four, or twenty- A yard land, 
 seven acres of arable land, in addition to its due pro- 
 portion of meadow and pasture. And two men were Appointment 
 chosen on the part of the lord, and two on the part of ^^^ "o 
 the landowners, to settle all differences concerning the arbitrate, 
 inclosures and exchanges and abatements of common. 
 And the parties agreed to submit themselves to the 
 order of the said four men, or any three of them, with 
 powers to appoint others in case of the decease of any 
 of them. The fom* persons so appointed duly made 
 their award ; and a great many exchanges of land in Award, 
 the common fields were made in pursuance of the above- 
 mentioned agreement and award, all of which are de- 
 tailed at length in a bill which was filed by the lord for Bill for 
 the specific performance of the agreement. One of the formance^of 
 parties to the agreement, however, was the dean and the agree- 
 chapter of the cathedral church of Exeter; and they a^va^d. 
 alleged that they were restrained by law from granting 
 their lands for any longer time than twenty-one years, 
 or tliree lives. And some of the copyholders alleged 
 
 {d) Mr. Horde's manor-house little out of the map, at p. 67, 
 lay on the road to Old ShifPord, a ante.
 
 248 
 
 PRESCRirXIVE RIGHTS. 
 
 Decree in 
 Chancery 
 confirming 
 agreement. 
 
 lliat they could not make any alienation of tlieir copy- 
 hold lands, being only copyholders for lives. And 
 some of the other persons who made the exchanges had 
 only particular estates in the lands exchanged by thiem, 
 there being several remainders settled and declared con- 
 cerning divers of the same lands. Moreover, some of 
 the persons who had made the exchanges objected that 
 the plaintiff could make no good title to them of several 
 parts of the lands they so had of the plaintiff in ex- 
 change as aforesaid, by reason of remainders, uses, and 
 estates limited or declared concerning the manor of 
 Aston, and other lands of the lord of the manor. And 
 in order, as it appears, to overcome these objections, the 
 aid of the Coiut of Chancery was sought ; and a bill 
 was filed accordingly for the specific performance of the 
 agreement, and for confirmation of everything that had 
 been done under it, and under the award made in pur- 
 suance thereof; and praj-ing that the parties might 
 convey and assure the exchanged lands, each to other, 
 in such manner as the Court should ajopoint. All the 
 defendants appeared and put in their answers ; and in 
 Hilary Term, in the twenty- fourth year of Charles II., 
 a decree was made by Sir Orlando Bridgman, knight 
 and baronet, lord keeper of the great seal of England, 
 that the said agreement should be duly performed, and 
 that the several exchanges and inclosures of lands there- 
 tofore made, and thereafter to be made, in pursuance of 
 the said agreement, and likewise all abatements of com- 
 mons made or to be made in respect of any such in- 
 closures, should remain and continue fixed and steadfast 
 at all times and for ever ; the lands by any person to 
 be received in exchange to bo for ever held or enjoyed 
 by such several respective person and persons, and for 
 such term, terms, and estates (I quote from the decree), 
 and upon such conditions, and under such rents and 
 services respectively, as the respective lands given or to 
 be given in exchange ought to have been holden and
 
 INCLOSURE. 249 
 
 enjoyed, by such person and persons respectively, by 
 whom the same were or should be given in exchange, 
 in case no such exchange had been made, without any 
 suspension of any rent or rents whatsoever, by means 
 of the said exchange ; and that all such exchanges 
 should be good and binding, as well against the dean 
 and chapter of Exeter, as against all other persons 
 making and agreeing to any such exchange, and against 
 their and every of their respective successors, heirs, exe- 
 cutors, administrators and assigns. 
 
 The power thus assumed by the Court of Chancery 
 would, I apprehend, be at once disclaimed at the present 
 day by any of the judges of the Chancery Division of 
 the High Court of Justice. It is impossible for the 
 Court to change the tenure of land, and to make what 
 was formerly copyhold freehold, or what was formerly 
 freehold or leasehold copyhold, as this decree purports 
 to do. Accordingly we find that the agreements 
 entered into by landowners and commoners were in 
 most subsequent cases confirmed by Acts of Parlia- Acts of 
 
 , , 1 1 1 • ; 1 f • > • Parliament 
 
 ment — the process always being the same, oi appomtmg confirming 
 
 persons, subsequently called commissioners, to allot and agreenients 
 
 Till T'li 111 ^'^^ mclosure. 
 
 award the lands to be inclosed, amongst the landowners 
 
 and the commoners in proportion to their respective 
 interests therein. I can, however, find but two of such 
 Acts of Parliament in the reign of King Charles II., 
 and none in the reigns of James II. and "William and 
 Mary and Queen Anne. A few such Acts were passed 
 in the reign of King George I.; and in subsequent 
 reigns they became more common. The Acts, being 
 private Acts, are not to be found in the usual col- 
 lections of statutes. In the subsequent reigns these 
 Inclosure Acts became more common ; and it is said 
 that about four thousand have been passed ; of which 
 about two thousand belong to the last century, and two 
 thousand to the present century.
 
 250 
 
 I'RESCRIPTIA E RIGHTS. 
 
 General 
 Inclosure Act. 
 
 Saving of 
 lord's scigno- 
 ries, rights, 
 and royalties. 
 
 Mines and 
 minerals not 
 saved to the 
 lord. 
 
 Toivnley v. 
 Gibson. 
 
 lu the reign of George III. these Acts became so 
 common that a Greneral Inclosure Act was passed in the 
 year 1801 (^). This Act is intituled "An Act for 
 consolidating in one Act certain provisions usuaiiy 
 inserted in Acts of Inclosure, and for facilitating the 
 mode of proving several facts usually required on the 
 passing of such Acts." It regulates the proceedings' of 
 the commissioners to be appointed, and contains many 
 provisions with respect to inclosure of lands, which are 
 from thenceforth to apply to future inelosui'es. And it 
 provides (/), "That nothing therein containe(i«^shall 
 lessen, prejudice or defeat the right, title or interest of 
 any lord or lady of any manor or lordship, or jj|T)uted 
 manor or lordship, within the jurisdiction orlimits 
 whereof the lands and grounds thereby directed to be 
 divided and allotted are situate, lying and being, of, in 
 or to the seignories, rights and royalties incident or 
 belonging to such manor or lordship, or reputed m^or 
 or lordship, or to the lord or lady thereof, or to any 
 person or persons claiming under him or her ; but the 
 same, other than and except the interest and other property 
 as is or are meant or intended to be barred by such Act, 
 shall remain in as full, ample and beneficial manner to all 
 intents and purposes as he or she might or ought to have 
 held or enjoyed such rights before the passing of such 
 Act, or in case the same had never been made." The 
 principal effect of this Act was to diminish the expenses 
 attending Inclosure Acts ; and the exceptions of royalties 
 and seigniories belonging to the manor, or to the lord 
 or lady thereof, was held not to include the mines and 
 minerak under tl^ lands inclosed. Thus in the case of 
 Townlcy v. Gibson {g), a sa\dng to the lord of all rents, 
 fines, services, &c., and all other royalties and manorial 
 jurisdiction whatsoever, was held not to reserve to the 
 lord the mines and minerals under the allotments made 
 
 (c) Stat. 41 Geo. III. c. 109. 
 (/) Sect. 40. 
 
 (ff) 2 T. Ecp. 701.
 
 INChOSURE. 251 
 
 to the tenants. Lord Kenyon, Chief Justice, observed, 
 " The defendant's counsel has supposed that mines are 
 a distinct right from the right to the soil ; but I do not 
 think so, where they are under the land of the lord of 
 the manoff^J-U cases of copyholds a lord may have a 
 right under the soil of the copyholder ; but where the 
 soil is in the lord, all is resolvable into the ownership of 
 the soil, and a grant of the soil will pass everything 
 under it." In some cases, however, the mines and 
 minerals are expressly reserved to the lord of the manor 
 or some other person. Where this is the case a subse- 'WTicn mine- 
 quent Act (//) provides that it must be specified whether proViskm^o ' 
 or not a right to enter the lands when inclosed for the ^^ ^^^^ for 
 purpose of working the mines' is to be reserved to such compensation, 
 lord or other person, and whether or not any com- 
 j)ensation is to be made for damage to the surface or 
 other damage, and proper provisions are made as to the 
 powers of working to be given, and as to the com- 
 pensation to be made. By an Act of the reign of 
 King William IV., to which I have before referred (i), Exchange of 
 provision was made for facilitating the exchange of 1^^^°°' ^ 
 lands lying in common fields. And by other Acts to 
 which I have also before referred (/»•), provision was 
 made for facilitating the inclosure of open and arable 
 fields in England and Wales. 
 
 So things continued until the year 1845, when 
 another general Inclosure Act was passed (l), to which 
 I have before referred {in), and which has been amended 
 several times (»), but which, as amended, is now in 
 force; except in certain districts in the neighbourhood 
 of the metropolis and large towns, to which I shall have 
 
 (h) Stat. 22 & 23 Vict. c. 43, and 3 & 4 Vict. c. 31, ante, pp. 
 
 ss. 1—6. 77, 78. 
 
 (i) Stat. 4 & 5 Will. IV. c. 30 ; {I) Stat. 8 & 9 Vict. c. 118. 
 
 aiiti; p. 77. (w) Ante, p. 78. 
 
 (A) Stat. 6 & 7 Will. IV. c. 115, (n) See ante, p. 78, note (;•).
 
 252 
 
 rRESCRirXlVE RIGHTS. 
 
 General In- 
 closure Act, 
 stat. 8 & 9 
 Vict, c, 118. 
 
 Inclosure 
 commissioners 
 for Engrland. 
 
 Sect. 11. 
 
 Sect. 12. 
 
 Waste lands 
 of manor. 
 
 Authority of 
 Parliament 
 for each 
 inclosure. 
 
 Village 
 greens. 
 
 occasion presently to refer. Prior to the passing of this 
 Act, separate commissioners had been appointed for the 
 purpose of each inclosure. But this Act provides (o) 
 for the appointment of commissioners who are styled 
 the inclosure commissioners for England, who are 
 furnished with a common seal ; and all awards and 
 orders, purported to be sealed with the seal of the 
 Board, are to be received in evidence, without any 
 further proof thereof. These commissioners were ap- 
 pointed for a limited period only; but their appoint- 
 ment has been from time to time renewed, and the 
 Board are still in existence. By the 11th section, as 
 we have already seen (;;), all lands subject to any 
 rights of common whatsoever are subject to be inclosed 
 under the Act. But, by tlie 12th section, no waste 
 land of any manor, on which the tenants of such manor 
 have rights of common, nor any land whatsoever 
 subject to rights of common which may be exercised at 
 all times of every year, for cattle levant and couchant 
 upon other land, or to any rights of common which 
 may be exercised at all times of every year, and which 
 shall not be limited by number or stints, shall be in- 
 closed under the Act, without the previous authority of 
 Parliament in each particular case. The Act also 
 provides {q), that no town green or village green shall 
 be subject to be inclosed under the Act ; but provision 
 may be made as thereby directed for preserving the 
 surface and for fixing the boundaries of any such green. 
 Subsequent Acts have provided for the protection of 
 village greens from encroachments, inclosure, and other 
 nuisances (r). The Act contains provisions in favour of 
 the inhabitants of the neighbourhood, and also in favom' 
 of the labouring poor, which, up to that time, had not 
 been enforced upon tlie landowners by public oj)inion. 
 
 (o) Stat. 8 & 9 A'ict. c. 118, 
 
 2. 
 
 (;)) Ante, p. 78. 
 
 [q) Sect. 15. 
 
 (>•) Stat. 20 & 21 Vict. c. 31, 
 s. 12; 39 & 10 Vict. c. 56, s. 29.
 
 TNCLOSURE. 253 
 
 These provisions were, however, permissive only. The Root. 30. 
 Act provides (.s), that in the provisional order of the K^^erciso and 
 
 ^ , , ^ ' . \ roorcation. 
 
 commissioners concerning the inclosure under the pro- 
 visions of the Act, of such waste lands as were Lcforo 
 forbidden to be inclosed without the previous authority 
 of parliament, it shall be lawful for the commissioners 
 to require and specify, as one of the terms of the inclo- 
 sure, the appropriation of an allotment for the purposes 
 of exercise and recreation for the inhabitants of the 
 neighboui'hood, not exceeding certain quantities, which 
 limit is now, as we shall see, repealed ; and if, in the 
 provisional order for such inclosure, the commissioners 
 shall not have required the appropriation of an allot- 
 ment for the purposes of exercise and recreation, the 
 commissioners shall, in their annual general report, 
 state the grounds on which they shall have abstained 
 from requiring such appropriation. The Act also pro- Sect. 31. 
 vides (^), that in the provisional order concernins: the ^llotmentg 
 
 ^ ' ' ■•• _ _ «^ lor labouring 
 
 inclosure of such waste lands as aforesaid, it shall be poor, 
 lawful for the commissioners to require and specify, as 
 one of the terms and conditions of such inclosure, the 
 appropriation of such an allotment for the labouring 
 poor, as the commissioners shall think necessary, with 
 reference to the circumstances of each particular case ; 
 such allotment, nevertheless, to be subject to a rent- 
 charge, to be payable thereout to any person or persons 
 who may be entitled to allotments under such inclosure 
 as therein provided. But this provision as to rent- 
 charge is now repealed. And if, in the provisional 
 order for such inclosure, the commissioners shall not 
 have required the appropriation of an allotment for the 
 labouring poor, the commissioners shall, in their annual 
 general report, state the grounds on which they shall 
 have abstained from requiring such appropriation. 
 
 {s) Sect. 30. (0 Sect. 31.
 
 254 
 
 PRESCRIPTIVE RIGHTS. 
 
 Remedy in 
 defects in 
 awards. 
 
 Excliano:e9. 
 
 A very beneficial power is given by the Act {it) to the 
 inclosure commissioners, of remedying defects and omis- 
 sions in awards, made under local Inclosure Acts or 
 under the Act of the G & 7 Will. IV. c. 115, for facili- 
 tating the inclosure of open and arable lands in England 
 and Wales (.r) . The Act also contains a very beneficial 
 provision {//), authorizing exchanges of land to be made 
 by the commissioners by order under their seal, which 
 exchanges are valid, notwithstanding any infirmity of 
 estate or defect of title of the persons on whose applica- 
 tion the same was made. This power has been extended 
 to partition and otherwise by subsequent Acts (s) ; but 
 this provision applies to all lands, whether subject or 
 not to be inclosed under the Act, and is therefore beside 
 my present purpose, which is to inform you of the 
 different provisions which have been made with respect 
 to inclosure of lands and the extinguishment of rights 
 of common therein. 
 
 Common 
 lands taken 
 by railways, 
 &c. 
 
 When any common or waste land is required by any 
 railway or other public body under the provisions of the 
 Lands Clauses Consolidation Act, 1845 («),the compen- 
 sation for the common rights is determined by agree- 
 ment between the promoters of the undertaking and a 
 committee of the parties entitled to the commonable 
 rights {h), and if they fail to agree, the amount is 
 determined as in other cases of disputed compensa- 
 tion (c). The amount received is then either appor- 
 tioned by the committee (''/), or paid into the Bank of 
 
 {i<) Stat. 8 & 9 Vict. c. 118, c. 97, ss. 2, 5 ; 20 & 21 Vict. c. 
 
 8. 152. 
 
 {x) Ante, pp. 77, 78. 
 
 (//) Sect. 14 7. 
 
 (--) Stats. 9 & 10 Vict. c. 70, 
 ss. 9—11 ; 11 & 12 Vict. e. 99, 
 BS. 13, 14; 12 & 13 Vict. c. 83, 
 ss. 7, 11; 15 & 16 Vict. c. 79, 
 ss. 17, 31, 32; 17 & 18 Vict. 
 
 31, ss. 4—11 ; 22 & 23 Vict. c. 
 43, ss. 10, 11. 
 
 (ff) Stat. 8 & 9 Vict. c. 18. 
 
 (A) lb., ss. 99—107. See S(o}ie- 
 ham v. London and Briff/iion Eail- 
 waij Companij, L. E,., 7 Q. B. 1. 
 
 (f) Sect. 105. 
 
 \d) Sect. 104.
 
 INCLOSURE. 255 
 
 England, and apportioned amongst the commoners in 
 accordance with the statutory provisions which have 
 been made for that purpose (e). 
 
 "We now come to the Metropolitan Commons Act, Metropolitan 
 1866 (/), and the Metropolitan Commons Amendment ^«"^°^°"«- 
 Act, 1869 (r/). The term "common" in these Acts 
 means land subject, at the passing of the former Act, to 
 any right of common, and any land subject to be in- 
 cluded under the provisions of the statute 8 & 9 Vict. 
 c. 118, of which I have been speaking. By the former 
 of these Acts provision is made for the improvement, 
 protection and management of commons near the 
 metropolis ; and the Act applies to any common, the 
 whole or any part whereof is situate within the metro- 
 politan police district, as defined at the passing of the 
 Act, which common is referred to in the Act as a 
 "metropolitan common." The Act enacts (A), that, 
 after its passing, the inclosm-e commissioners shall not 
 entertain an application for the inclosure of a metro- 
 politan common, or any part thereof. And a scheme Scheme for 
 for the establishment of local management with a view ^'^metro-^^* 
 to the expenditure of money on the drainage, levelling politan com- 
 and improvement of a metropolitan common, and to 
 the making of bye-laws and regulations for the pre- 
 vention of nuisances and the preservation of order 
 thereon, may be made under the Act on a memorial 
 in that behalf presented to the commissioners by the 
 lord of the manor, or by any commoners, or by the 
 local authority, or in the ease of a common extending 
 into the districts of two or more of the bodies described 
 in the first schedule of the Act as the local authority, 
 then by any one or more of such bodies (/). The 
 
 {e) Stats. 8 & 9 Vict. c. 18, s. {ff) Stat. 32 & 33 Vict. c. 107. 
 
 107 ; 17 & 18 Vict. c. 97, ss. 15- {/>) Stat. 29 & 30 Vict. c. 122, 
 
 20. s. 5. 
 
 (/) Stat. 29 & 30 Viot. c. 122. (/) Soct. 6.
 
 256 
 
 PRESCRIPTIVE RIGHTS. 
 
 scheme, wlien approved by the commissioners, is to be 
 certified by them, and sealed by their common seal (/i-) ; 
 Scheme to be but it has not of itself any operation unless confirmed 
 Act of^*^ by Act of Parliament ; but when and as it is confirmed 
 
 by Act of Parliament, it has full operation with such 
 modification, if any, as to Parliament may seem fit (/). 
 Several schemes for the regulation of commons in the 
 neighbourhood of London under this Act have already 
 been sanctioned by Parliament. 
 
 Parliament. 
 
 Eegulation An Act has lately been passed for facilitating the 
 
 and improve- , , . , . i c i j" 
 
 ment of com- regulation and improvement oi commons, and lor 
 mons. amending the Acts relating to the inclosure of com- 
 
 AcW876. mons (in). This Act is cited as the Commons Act, 
 187G. The first part of the Act relates to the law as 
 to the regulation and inclosure of commons, and pro- 
 vides {n) that the inclosure commissioners may entertain 
 an application made in the manner mentioned in the 
 Act for a provisional order, first, for the regulation 
 of a common ; secondly, for the inclosure of a common 
 or parts of a common. And an application may be 
 made as respects the same common for the regulation 
 of part, and for the inclosure of the residue ; but the 
 commissioners are not to proceed to carry any such 
 application into effect, until it is made to appear to them 
 that the persons making the application represent at 
 least one-third in value of such interests in the common 
 as are proposed to be affected by the provisional order. 
 Eegulation of A provisional order for the regulation of a common may 
 provide generally or otherwise for the adjustment of 
 rights in respect of such common, and for the improve- 
 ment of such common, or for either of such purj)oses (o). 
 The terms " adjustment of rights," and " improvement 
 
 a common. 
 
 (A) Stat. 29 k 30 Vict. c. 122, 
 6. 18. 
 
 (/) Sect. 22. 
 
 (//O Stat. 39 & 40 Vict. c. 56, 
 
 amended by stat. 42 & 43 Vict, 
 c. 37. 
 
 00 Stat. 39 & 4 O.Vict, c. 50, s. 2. 
 
 (o) Sect. 3.
 
 INCLOSURE. 
 
 257 
 
 of a common," are explained in the Act by many 
 sub-sections, showing the rights intended to be adjusted, 
 and the mode in which improvements are to be carried 
 out. And, in considering the expediency of the appli- 
 cation, the commissioners are to take into consideration 
 the question whether such application will be for the 
 benefit of the neighbourhood ; and shall, with a view to 
 such benefit, insert in their order such of the following 
 conditions as are aj)plieable to the case, that is say : — Conditions to 
 
 First, that free access is to be secured to any particular ,^. 
 
 ' , . . Views. 
 
 points of view ; 2ndly, that particular trees or objects of Historical 
 historical interest are to be preserved ; 3rdly, that there objects. 
 is to be reserved, where a recreation ground is not set I^ecreation. 
 out, a privilege of playing games or of enjoying other 
 species of recreation at such times and in such manner 
 and on such parts of the common as may be thought 
 suitable, care being taken to cause the least possible 
 injury to the persons interested in the common ; and 
 4thly, that carriage roads, bridle paths and footpaths Roads and 
 over such common are to be set out in such directions ""'^^^" 
 as may appear most commodious ; and 5thly, that any 
 other specified thing is to be done which may be thought 
 equitable and expedient, regard being had to the benefit 
 of the neighbourhood {p). If the common is situate Commons 
 either wholly or partly in any town or towns, or within miles of a 
 six miles of any town or towns, notice of any application town, 
 under the Act is to be served, as soon as may be, on the 
 urban sanitary authority or authorities, having juris- 
 diction over such town or towns, who may appear and 
 make such representations as they may think fit with 
 respect to the expediency or inexpediency of such 
 application, regard being had to the health, comfort 
 and convenience of the inhabitants of the town over 
 which such authority has jurisdiction, and may propose 
 such provisions as may appear to such urban sanitary 
 authority to be proper, regard being had as afore- 
 {p) Sect. 7. 
 W.P. 8
 
 258 
 
 PRESCRIPTIVE RIGHTS. 
 
 Definitiou of 
 a town for 
 the purposes 
 of the Act. 
 
 Provisional 
 order to be 
 confii'med by 
 Parliament. 
 
 said ( q) . But a town, for the purposes of this section, 
 means only any municipal borough or improvement 
 Act district, or local government district, having a 
 population of not less than five thousand inhabitants. 
 Every report made by the inclosure commissioners 
 certifying the expediency of any provisional order under 
 the Act shall be presented to Parliament; and if at any 
 time thereafter it is enacted by Act of Parliament that 
 any order for the regulation or inclosure of a common, 
 the expediency of which has been certified by the 
 commissioners, shall be confirmed, the regulation or 
 inclosure of the common shall be proceeded with and 
 completed; but a provisional order until such Act of 
 Parliament as aforesaid has been passed in relation 
 thereto, shall not be of any validity whatever (>•) . The 
 second part of the Act amends in several matters the 
 Inclosure Acts already passed. And the third part of 
 the Act, amongst other things, repeals (.s) so much of 
 sect. 30 of the Inclosure Act, 1845, as prescribes a 
 limit to the quantity of land to be allotted to recreation 
 grounds. There are also other provisions with respect 
 to recreation grounds and field gardens, and allotments 
 for the poor inhabitants of the parish, all tending to the 
 greater benefit of the poor. The above is but a slight 
 sketch of the Act, which contains many provisions of 
 more or less importance, for which a reference must be 
 made to the Act itself. The 31st section, as to giving 
 notice of any intended inclosure or approvement other- 
 wise than under the provisions of the Act, has already 
 been referred to {i) . 
 
 {q) Stat. 39 & 40 Vict. c. oG, s. 8. 
 (;•) Sect. 12, sub-s. 10. 
 
 (a) Sect. 34. 
 
 \t) Ante, p. 118.
 
 ( 259 ) 
 
 LECTUEE XYIII. 
 
 We now come to the consideration of rights of fisliliuj. Fishing. 
 And, first, of common of piscary. Common of piscary is Common of 
 a liberty of fishing in another man's water, in common P^^°^^^' 
 with the owner of the soil and perhaps also with others, 
 who may be entitled to the same right. It does not 
 very often occur. I apprehend, that common of piscary 
 may, like other common rights, be either appurtenant 
 to a house ; in which case it would seem that the fish 
 taken ought to be consumed in the house, to which the 
 right is appurtenant ; or it may be claimed as a right 
 in gross, and not attached to any tenement. And it 
 may arise either by grant or prescription. The in- 
 cidents of common of piscary appear to be in every 
 respect analogous to those of common of estovers, 
 turbary and the like. The right of fishing which has 
 created most discussion is that which is called a several A several 
 fishery, or sometimes ?i free fishery, whioh. is an exclusive 
 right of fishing, either with or without the ownership 
 of the soil. It is remarked by Mr. Justice Willes, in 
 delivering the opinion of the judges in the case of 
 Malcomson v. O'Bea (a), "that the only substantial dis- 
 tinction is between an exclusive right of fishery, usually 
 called 'several,' sometimes 'free' (used as in free 
 warren (5) ), and a right in common with others, usually 
 called 'common of fishery,' sometimes 'free' (used as 
 in free port). The fishery in this case is sufiiciently 
 described as a 'several fishery,' which means an ex- 
 elusive right to fish in a given place, either with or 
 without the property in the soil." On this subject 
 a great deal of misapprehension seems to have pre- 
 
 («) 10 H. of L. 593, 619. (A) Ante, p. 238. 
 
 s 2
 
 260 PRESCRIPTIVE RIGHTS. 
 
 vailed ; and the law is in this singular state, that 
 whilst, according to authorities which must be submitted 
 to, a several fishery implies the ownership of the soil, 
 yet according to legal principles, and also according to 
 more ancient authorities, a several fishery does not 
 2)rimd facie imply the ownership of the soil, any more 
 than a right of several pasture implies in it the owner- 
 ship of the soil on which the grass grows. This subject 
 Marshall v. was Very much discussed in the case of Marshall v. Tlie 
 Steam NavLa- TJUesicater steam Navigation Comixmy {Limited) ic). 
 fwn Company. The marginal note of that case on this point is as 
 follows : — " The allegation of a several fishery prima, 
 facie imports ownership of the soil; Cockburn, Chief 
 Justice, dissenting, but holding the Court bound by the 
 authorities to that effect." 
 
 The judgment of Chief Justice Cockburn in this case 
 explains the matter so clearly that I make no apology 
 for reading it to you. It is as follows {d) : " I am 
 desirous to have it imderstood that in concm-ring with 
 my learned brothers in discharging this rule I am 
 acting, not upon my own conviction, but in deference 
 to authorities by which, sitting here, I deem myself 
 bound, but which, if I were sitting in a Court of Appeal, 
 I should consider myself called upon to canvass. I agree 
 with the rest of the Coui-t in thinking that if the right 
 to a several fishery, as such, is consistent with the 
 ownership of the soil — a fortiori ii prima facie it is to be 
 taken as implying such ownership — there is evidence in 
 this case, in the reservation of the quit rent and the fact 
 of the grant of the fishery to the plaintiff's predecessor 
 having been accompanied by livery of seisin, to lead to the 
 conclusion that the ownership of the soil was here united 
 with the several fishery. My difficulty arises from my 
 inability to assent to the doctrine that upon the grant of 
 a several fishery the ownershii") of the soil and the right of 
 
 (r) 3 Be«t & Smith, 732. (^0 Ibid. 746.
 
 FISHING, 2G1 
 
 fishery are to be taken to bo united. It is certain tliat 
 both Bracton and Sir E. Coke considered a several fishery 
 as a thing essentially distinct from the ownership of the 
 soil. Lord Coke (e) expressly lays it down that by the 
 grant of a several fishery, even Avhen accompanied by 
 livery of seisin fiecundum fcrmam cJtartcv, the soil does 
 not pass, but if the water becomes dry the grantor 
 shall have the soil. The language of Lord Coke is 
 precise and positive, and is well deserving of attention. 
 He says : — ' If a man be seised of a river, and by deed 
 do grant sejximlcm piscariani in the same, and maketh 
 livery of seisin secundum formam chartce, the soile doth 
 not pass nor the water, for the grantor may take water 
 there ; and if the river become drie he may take the 
 benefit of the soile ; for there passed to the grantee but 
 a particular right, and the livery being made secundum 
 formam chartw cannot enlarge the grant. For the same 
 reason if a man grant aquam suam,, the soile shall not 
 passe, but the pischary within the water passeth there- 
 with.' Now independently of the high authority of 
 Lord Coke on such a matter, I must say that this 
 doctrine appears to me the only one which is recon- 
 cilable with principle or reason. It is admitted on all 
 hands that a several fishery may exist independently 
 of the ownership of the soil in the bed of the water. 
 Why, then, should such a fishery be considered as 
 carrying with it, in the absence of negative proof, the 
 property in the soil ? On the contrary, it seems to me 
 that there is every reason for holding the opposite way. 
 The use of water for the purpose of fishing is, when the 
 fishery is united with the ownership of the soil, a right 
 incidental and accessory to the latter. On a grant of 
 the land, the water and the incidental and accessory 
 right of fishing would necessarily pass with it. If, 
 then, the intention be to convey the soil, why not 
 convey the land at once, leaving the accessory to 
 (fc) Co. Litt. 4 b.
 
 262 PRESCRIPTIVK RIGHTS. 
 
 follow ? Why grant the accessory that the principal 
 may pass incidentally? Surely such a proceeding 
 would be at once illogical and unlawyer-like. The 
 greater is justly said to comprehend the less, but this 
 is to make the converse of the proposition hold good. A 
 grant of land carries with it, as we all know, the 
 mineral which may be below the surface. But who 
 ever heard of a grant of the mineral caiTying with it 
 the general ownership of the soil ? Why should a 
 different principle be applied to the grant of a fishery, 
 which may be said to be a grant of that which is above 
 the surface of the soil, as a grant of the mineral is a 
 grant of that which is below it ? Nor should it be 
 forgotten that the opposite doctrine involves the startling 
 and manifest absurdity that, should the water be 
 * diverted by natural causes, or become dry, the fishery, 
 which was the primary and principal object of the 
 grant, would be gone, and the property in the soil, 
 which only passed incidentally and as accessory to the 
 grant of the fishery, would remain. I must further 
 observe that, if I felt myself at liberty to follow my 
 own view of the law in this respect, I should not feel 
 any serious difficulty in dealing with the two principal 
 facts relied on as supporting the position that the 
 property in the soil passed with the grant of the fishery. 
 It may be that, in strictness, a quit rent is not properly 
 reservable on the grant of an incorporeal hereditament. 
 But if the law were clear that the grant of a several 
 fishery carried with it no right to the soil, the fact that 
 a quit rent had been reserved by the lord of the manor 
 by whom the grant was originally made would only 
 show that the parties had been mistaken in supposing 
 that a quit rent could be reserved on such a grant. So, 
 again, the fact that livery of seisin had been resorted to, 
 to give effect to the grant, would only show that the 
 parties erroneously supposed that this form of conveyance 
 was necessary, or at all events was available to effect
 
 FISHING. 263 
 
 their purpose. These things would not, to my mind, 
 convert a grant of the use of the surface of the soil for 
 a specific purpose into a grant, inferentially, of the soil 
 itself. Indeed, in the case put by Lord Coke, he 
 assumes that the grant of the fishery has been accom- 
 panied by livery of seisin, yet lays down that this will 
 not have the effect of making the freehold in the soil 
 pass. Nevertheless, however strong may be my own 
 opinion on this question, I think the authorities on it 
 are too cogent to be overruled except in a Court of 
 Appeal. In Holford v. Bailey {/), Lord Denman, in 
 delivering the considered judgment of this Court, says, 
 p. 1016, ' No doubt the allegation of a several fishery 
 prima facie imports ownership of the soil, though they 
 are not necessarily united.' And the same doctrine is 
 enunciated by Parke, B., in delivering the judgment of 
 the Court of Exchequer Chamber in the same case (g). 
 And though, in both instances, the doctrine may be said 
 to have been extrajudicial, as being unnecessary to the 
 decision, which turned on the question whether trespass 
 would lie for disturbance of a several fishery, the 
 affirmative of which was held on grounds altogether 
 independent of the ownership in the soil, yet it cannot 
 be denied that these dicta, occurring in the considered 
 judgments of the Courts, are entitled to very great 
 weight. And in the learned note to fol. 122a of 
 Hargrave and Butler's edition of Coke upon Littleton, 
 the annotator after passing in review the conflicting 
 authorities on this subject concludes — I cannot but 
 think contrary to the effect of his own reasoning — that 
 the true doctrine on this subject is that a several piscary 
 is presumed to comprehend the soil till the contrary 
 appears. I feel that in disposing of this rule we 
 ought to yield to the authority of these opinions, but 
 entertaining myself individually a very different view, 
 I am desirous to have it known that while I submit to 
 
 (/) 8 Q. B. 1000. (y) 13 Q. B. 426, Ui.
 
 264 
 
 rRESCRIPTlVE RIGHTS. 
 
 tliem I am far from acquiescing in them." I cannot 
 help thinking that this reasoning will ultimately 
 prevail, and that a right of several fishery will be 
 considered, like a right of several pasture {/i), to be 
 merely an incorporeal hereditament, in the absence of 
 any proof of ownership of the soil in the person entitled 
 of the fishery. 
 
 Trespass. 
 
 Jlolford V. 
 Baile'j. 
 
 It was held in the case of Ilolfonl v. Bailoj (/) that 
 an action of trespass will lie for fishing in a several 
 fishery. This is in analogy to the cases of a several 
 pasture (/.•), an exclusive right of mining {I), and a 
 right of free warren {m) in respect of all of which an 
 action of trespass may be maintained. 
 
 Several 
 fisher}^ may 
 be appur- 
 tenant. 
 
 Buke of 
 Somerset v. 
 Fog well. 
 
 A several fishery may undoubtedly exist apart from 
 any ownership of the soil of the river in which it exists. 
 It may, like other rights of profit a prendre, be appur- 
 tenant to a manor (;?). And the right may be confined 
 to certain fish, as oysters, in a navigable tidal river; 
 whilst the public have a right to catch all other 
 fish (o). In the case of The Du1;c of Somerset v. 
 Fog ice n {2)), the Duke of Somerset was the owner of a 
 several fishery in the river Dart, which is a na\'igable 
 tidal river, under ancient grant from the Crown prior 
 to the reign of Henry II. And it was held that this 
 was an incorporeal and not a territorial hereditament, 
 the soil of the river remaining vested in the CrowTi, and 
 the incorporeal right of exclusive fishing being alone 
 vested in the Duke. 
 
 Fishery iu 
 gross not 
 
 The right to 
 
 a several 
 
 fishery, when claimed in grosSj 
 
 within 
 
 
 
 
 
 (/() Ante, p. 21. 
 
 
 (») Eof/ers v. Allen, I Campb, 
 
 
 (0 13 Q. B. 42G. 
 
 
 309, 312. 
 
 
 (A) Ante, p. 21. 
 
 
 (0) 1 Campb. 312. 
 
 
 (0 Ante, p. 211. 
 
 
 (p) 5 B. & C. 875. 
 
 
 (;/)) Ante, p. 239. 
 

 
 FISHING. 265 
 
 is not within the Prescription Act (7). This was the rrescrip- 
 
 decided in the case of Shuttlcivortli v. Le F/ciii/ik/ (r). ^^^ ,^ ' , 
 
 . , Slmltleworth 
 
 In that case the defendant pleaded a riglit of free v. Lc Fleminrf. 
 
 fishery in Coniston Water for sixty years and upwards, 
 
 enjoyed by himself and his ancestors whose heir he was, 
 
 as of right and without interruption, intending to avail 
 
 himself of the provisions of the above statute. But the 
 
 Court held that that statute only applied to cases in 
 
 which there was a dominant tenement on the one hand 
 
 and a servient tenement on the other hand, and had no 
 
 reference to any claim, such as this, of a right in gross 
 
 belonging to a man and his heirs, irrespective of any 
 
 tenement to which the same may be appurtenant. 
 
 A right of fishing, when unconnected with the Fishery not 
 ownership of the soil, was formerly exempt from poor abie^to thT ^' 
 rates, being, like other common rights, only an incor- poor, 
 poreal hereditament, and not therefore strictly speaking 
 the subject of occupation: but, if any territorial right 
 belonged to it, then it was rateable for the relief of the 
 poor. A good deal of the law on this subject will be 
 found in the case of Tlte Kiu(j v. Ellis (.s). But by the 
 Eating Act, 1874 (/), it is now provided that, after the The Rating 
 commencement of that Act, the Poor Pate Acts shall jjj,4ts of 
 extend, amongst other things, to rights of fishing when fishinf? now 
 severed from the occupation of the land. 
 
 "With regard to the sea, the public have the right of The sea. 
 fishing in the sea, and also in all navigable tidal rivers. 
 The seashore, up to the point of high-water mark of 
 medium tides, between the spring and the neap tides, is 
 called the foreshore, and is ordinarily and prima facie The foreshore, 
 vested in the Crown {11) ; but it is so vested for the 
 
 (;?) Stat. 2 & 3 Will. IV. c. 71; (0 Stat. 37 & 38 Vict. c. 54, 
 
 ante, p. 173. s. 3. 
 
 (?•) 19 C. B., N. S. 687. («) Att.-Gm. \. Chambers, 4 Do 
 
 M 1 M. & S. 652. Gex, M. & G. 206.
 
 266 
 
 PRESCRIPTIVE RIGHTS. 
 
 Foreshore 
 
 Ancient 
 grants ex- 
 plained by 
 modern user 
 
 benefit of the Queen's subjects, who have by Law, not 
 only a right of fishing, but also a right of navigation, 
 not only in the sea but also in all tidad navigable 
 rivers (x) . But the foreshore, though ordinarily vested 
 Sj'ecr^^'' in the Crown, may belong to a subject, either by itself 
 or as part of an adjoining manor. And when vested in 
 a subject it belongs to him as his private property (y). 
 In many cases the right to the foreshore is derived 
 under ancient grants from the Crown. It is a general 
 principle, in the construction of ancient grants, that their 
 meaning may be explained by modern user ; and in 
 cases where it is shown that acts of ownership have 
 been exercised by a grantee under a grant which may 
 or may not include the seashore, such acts of ownership, 
 if exercised on the seashore between high and low water- 
 mark, may be properly admitted as evidence to show 
 that the grants in question included the seashore down 
 to low water-mark (::). So in the case of CaJmady v. 
 Rowe {((), it was held that acts of ownership exercised 
 by the lord of a manor upon the seashore adjoining 
 between high and low water-mark, such as the exclusive 
 taking of sand, stones and sea weeds, might be called in 
 aid to show that the shore was parcel of a manor, where 
 an ancient grant, under which the manor appeared to 
 be held, and which professed to grant the manor with 
 wreck of the sea, several fishery and other rights of an 
 extensive description, did not purport expressly to 
 convey the foreshore.. 
 
 "When high 
 water-mark 
 gradually 
 alters. 
 
 When the boundary of high water-mark at medium 
 tides is gradually altered, either by the gradual en- 
 croachment of the sea on the one hand, or by its gradual 
 
 (.r) Ward r. Creswell, TVilles, 
 265 ; Bacfott v. On; 2 Bos. & Pul. 
 472 ; Williams v. Wilcox, 8 A. & 
 E. 314, 333. 
 
 (y) Mace v. Fhilcox, 15 C. B., N. 
 S. COO. 
 
 {z) The Buke of Beaufort v. 
 Mayor, ^c. of Swansea, 3 Ex. 
 413. 
 
 {a) G C. B. 861. See also .^«.- 
 Gen. V. Mayor, ijr. of Portsmouth, 
 Ex., 25 W. R. 559.
 
 FISHING. 2()r 
 
 retirement on tlio other, by reason of the gradual 
 formation of alluvium, the right of the Crown or of tlio 
 Crown's grantee to the seashore gradually alters accord- 
 ing as the boundary alters (b) ; and the land which 
 gradually advances on the sea becomes the property of 
 the adjoining o^vncr. And so the land which has been 
 gradually enroached on by the sea is gradually taken 
 from the adjoining owner. The law on this subject is 
 thus put by Baron Alderson In the Matter of the Hull Re Jiuii and 
 and Selbij RaUiray (c), " I think the question is precisely " '^ ^'^ "'^y- 
 the same whether the claim is made as against the 
 Crown or the Crown's grantee. Suppose the Crown, 
 being the owner of the foreshore — that is, the space 
 between high and low water-mark — grants the adjoin- 
 ing soil to an individual, and the water gradually 
 recedes from the foreshore, no intermediate period of 
 the change being perceptible; in that case the right of 
 the grantee of the Crown would go forward ■\^ith the 
 change. On the other hand, if the sea gradually 
 covered the land so granted, the Crown would be the 
 gainer of the land. The principle laid down by Lord 
 Hale, that the party who suffers the loss shall be 
 entitled also to the benefit, governs and decides the 
 question. That which cannot be perceived in its 
 progress is taken to be as if it never had existed at all." 
 But in the case of a sudden advance or recession the Sudden 
 law is different. A sudden retirement of the sea does recession^'' 
 not deprive the grantee from the Crown of the foreshore 
 of his title to the soil, which existed prior to such 
 sudden retirement ; and so, on the other hand, the 
 sudden inundation of the sea does not deprive the 
 owners of the land so inundated of their right to the 
 soil. 
 
 Prima facie, as we have said {d), the soil of every 
 
 {b) Gifford V. Lord Yarborough, {c) 5 M. & W. 327, 332. 
 
 H. of L., 5 Bing. 163. \d) Antr, p. 2G5.
 
 268 
 
 TRESCRirTIVE RIGHTS. 
 
 Grant by 
 Crown of 
 several 
 fishery. 
 
 Malcomson v. 
 O'Dca. 
 
 Magna 
 Charta, c IG. 
 
 tidal navigable river is vested in the Crown ; and prima 
 facie the right of fishery therein belongs to the public. 
 But in ancient times the right to exclude the public 
 from fishing in a tidal navigable river, and to create 
 a several fishery therein, existed in the Crown ; and the 
 Crown might lawfully, before the passing of Magna 
 Charta, have exercised this right ; and the several 
 fishery so created could afterwards be lawfully made 
 the subject of a grant by the Crown to a private in- 
 dividual. This was one of the points decided by the 
 House of Lords in the case of Malcomson v. O'Dca (<?), 
 to which I have just referred (./'). The part of the 
 Magna Charta which relates to this subject, is cap. 16 
 of the Magna Charta of 9 Hen. III., which provides 
 that no river banks shall be defended from henceforth 
 but such as were in defence in the time of King Henry 
 our grandfather, by the same places and the same bounds 
 as they were wont to be in his time. " That is," says 
 Lord Coke ( f/), " that no owner of the banks of rivers 
 shall so appropriate or keep the rivers several to him, to 
 defend or bar others either to have passage or fish 
 there, otherwise than they were used in the reign of 
 King Henry 11." 
 
 No public 
 right in pri- 
 vate waters. 
 JImlson V. 
 Macrae. 
 
 The public have no right of fishing in any private 
 waters ; nor can they acquire such a right by any use, 
 however long. This was decided in the case of Hudson 
 V. 3Iacrac {//). In that case the public had fished for 
 sixty years and upwards, at their pleasui^e and without 
 interruption, in the river Wandle, by angling from a 
 footpath beside the river ; and the defence of the 
 appellant to an information against him before two 
 justices for unlawfully fishing, was that, under the 
 above circumstances, he had a right, as one of the 
 public, to fish in that part of the river from the foot- 
 
 (() 10 H. of L. ')DZ. 
 (/) Ante, p. 259. 
 
 (-/) 2 Inst. 30. 
 
 (h) 4 Best & Smith, 585.
 
 FISHING. 2G9 
 
 path. Aud it was conceded on all hands that such a 
 
 right could not exist. This ease was followed Ly that 
 
 of Ilanjrerwes v. Did(la))is (/). In that case a river was Hurgrcaves 
 
 made navigable by a company, and the public were 
 
 allowed to navigate it on payment of tolls under certain 
 
 Acts of Parliament. The soil and rights of the owners 
 
 on each side of the river remained untouched. The 
 
 public had fished for many years in the river without 
 
 interruption by the owner of the soil ; but ho caused a 
 
 notice to be set up forbidding all fishing. The appellant 
 
 afterwards fished in the river, and an information was 
 
 taken out against him. At the hearing the appellant 
 
 set up the right in the public. But it was held that 
 
 the right set up could not exist in law — following the 
 
 decision in Hudson, v. Macrae to which I have just 
 
 referred. In like manner a custom cannot be sustained Custom for 
 
 for the inhabitants of a parish to angle and catch fish in ^^^ -^^ ^ " 
 
 certain waters ; for a profit a jvoidre, as this is, cannot 
 
 be established by custom {k). You will remember that 
 
 in Gateiirird's case (/), it was decided that a custom for 
 
 the inhabitants of a parisli to pasture their cattle on a 
 
 certain waste was held to be void. 
 
 With regard to rivers, other than those that are Rivers uot 
 tidal and navigable, the law is that the soil of one-half ^^^o-able 
 the river to the middle of the river belongs to the 
 owner of the banks of the river on each side ; the o^vner 
 of the land on one side being entitled to the one-half 
 next his land, and the owner of the land on the other 
 side being entitled to the other half next his land. 
 And each owner is entitled in common with the other 
 to fish in the stream. And if the river should gradually 
 and imperceptibly change its course, the same law 
 holds as with regard to the seashore ; and there accrues 
 a gradual gain to the riparian owner from whose side 
 
 (() L. E., 10 Q. B. 582. B. 713, n. 
 
 (/.) Ji/amI V. Zipscombe, 4 E. & {/) G Rep. 59; nnte, p. 13.
 
 270 
 
 PRESCRIPTIVE RIGHTS. 
 
 Mayor of 
 Carlisle v. 
 Graham. 
 
 the river gradually recedes, and a gradual loss to the 
 other riparian owner upon whom the river gradually 
 incroaches. But in case of any sudden advance or 
 recession of the water of the river, the law is the same 
 as with regard to any sudden advance or recession of 
 the sea. Such sudden advance or recession does not 
 alter the rights of the respective riparian owners. And 
 even where a river gradually shifts its course, if it in 
 course of time leaves the soil of A., and flows through 
 the soil of B., the right of fishing which belonged to A. 
 whilst the river ran through his land, is lost by him so 
 soon as the river forsakes his land. Thus in the case of 
 the 21aijor of Carli-'sle Y.Gral/ani (;/;), the plaintiffs claimed 
 a several fishery in a portion of the river Eden called 
 the Goat, about half a mile in length. The river Eden 
 is a tidal river ; and the plaintiffs were entitled to two 
 fisheries derived imder ancient grants from the Crown, 
 confirming other more ancient grants anterior to Magna 
 Charta. The river Eden in process of time entirely 
 left its former channel, and formed for itself a new one. 
 And it was held that the corporation of the city of 
 Carlisle thereby lost its right of fishing in the river. 
 
 Johnson V. 
 Bloomjkld. 
 
 Inland lake. 
 
 In the recent case of Johnson v. Bloomfidd (n), it was 
 held by the Coiirt of Exchec^uer Chamber in Ireland 
 that the presumption that the bed and soil of a stream 
 belongs to the riparian proprietors, does not apply to a 
 large inland non-tidal and navigable lake. It was also 
 held in the same case that the public has not a common 
 law right to fish in a non-tidal lake, although it may be 
 navigable. 
 
 (>n) L. R., 4 Ex. 3G1 ; 18 W. 
 E. 318. See, however, Foster v. 
 TFriffht, 4 C. P. D. 438. 
 
 («) 8 Irish Rci^oi-ts, Common 
 Law, 68.
 
 ( 271 ) 
 
 LECTURE XIX. 
 
 I NOW come to the consideration of other franchises Franchises, 
 which may be claimed either by grant from the Crown, 
 or by prescription from long enjoyment. Many of 
 these franchises not unfrequently belong to lords of 
 manors, and are in fact appurtenant to their several 
 manors. It is laid down by Lord Coke (a), that to 
 treasure trove, waifs, estrays, wreck of sea, to hold 
 pleas. Court of leets, hundreds, &c., in-fang thief, 
 out-fang thief, to have a park, warren, royal fishes, as 
 whales, sturgeons, fairs, markets, frank foldage, the 
 keeping of a gaol, toll, a corporation by prescription, 
 and the like, a man may make a title by usage and 
 prescription only, without any matter of record. 
 
 I now proceed to take some of these franchises more 
 particularly. A very common franchise annexed to a 
 manor is a right of the lord to hold a Court kef. The Court leet. 
 Coui"t leet is thus described by Blackstone in his 
 Commentaries (^), "The Coui-t leet or view of frank- 
 pledge, is a Coui't of record, held once in the year and 
 not oftener, within a particular hundred, lordshiji or 
 manor, before the steward of the leet, being the King's 
 Court granted by charter to the lords of those hundi-eds 
 or manors. Its original intent was to view the frank- 
 pledges, that is, the freemen within the liberty ; who, 
 •we may remember, according to the institution of the 
 great Alfred, were all mutually pledges for the good 
 behaviour of each other. Besides this, the preservation 
 of the peace and the chastisement of divers minute 
 offences against the public good, are the objects both of 
 
 (r>) Co. Litt. 111b. (4) 4 Bl. Com. 273.
 
 272 PRESCRIPTIVE RIGHTS. 
 
 the Coui't leet and the sheriff's tourn ; which have 
 exactly the same jurisdiction, one being only a larger 
 species of the other, extending over more territory but 
 not over more causes. All freeholders within the 
 precinct are obliged to attend them and all persons 
 comnwrant therein, which commorancy consists in 
 usually lying there ; a regulation which owes its 
 original to the laws of King Canute." [I may add that 
 the persons commorant within the place are also fre- 
 
 Eesiants. quently called "resiants."] " But persons under twelve 
 and above sixty years old, peers, clergymen, women, 
 and the king's tenants in ancient demesne, are excused 
 from attendance there ; all others being bound to ap- 
 pear upon the jmy, if required, and make their due 
 presentments. It was also anciently the custom to 
 smnmon all the king's subjects as they resj)ectively 
 grew to years of discretion and strength to come to the 
 Court leet and there take the oath of allegiance to the 
 king. The other general business of the leet and tourn 
 was to present by jury all crimes whatsoever that 
 happened within their jurisdiction ; and not only to 
 present, but also to punish all trivial misdemeanors, as 
 all trivial debts were recoverable in the Court baron, 
 and county Court : justice in these minuter matters of 
 both kinds being brought home to the doors of every 
 man by our ancient constitution." But, as Blackstone 
 observes, both the tourn and the leet have been for a 
 long time in a declining way, this business for the most 
 part having gradually devolved upon the quarter ses- 
 sions. As a Court leet may be claimed by prescription, 
 so the mode of summoning the jury may be by pre- 
 scription varied from the ordinary mode. This was 
 
 The King v. decided in the case of The Kiiuj v. JoliJfe{c), to which I 
 called attention in a former Lecture {<J). It was there 
 held that where, for twenty years and upwards, it had 
 been the custom for the steward of the manor to 
 
 {(■) 2 B. & C. 51. {(J) Ante, p. 5. 
 
 Joliffe.
 
 COURT LEET. 273 
 
 nominate the persons to servo on the jury, instead of 
 tlieii' being chosen by the bailiff of tlie manor in the 
 usual way, this was evidence from which, if uncontra- 
 dicted, the jury were justified in finding that such had 
 been the practice from time immemorial ; and it was 
 held that this was a good custom belonging to the 
 Court leet, which also was claimed to have been held by 
 prescription from time immemorial. In that case the 
 person holding the Court leet was not the lord of a 
 manor but the mayor of the borough of Petersfield, 
 which is an ancient borough. The Court leet when 
 held by the lord of a manor must be carefully distin- 
 guished from the Court baron and also from the copy- 
 hold Com't of the manor. All three Courts are not 
 unfrequently held together. But the Court leet is a 
 criminal Court and can only be claimed by a grant 
 from the Crown, or by prescription from immemorial 
 user, whereas the Com"t baron is incident to every 
 manor {e) . It is the Court of the freeholders, and in it 
 they are both suitors and judges, whilst the Court of 
 the copyholders is only for them, and in it the lord or 
 his steward presides as judge (,/'). 
 
 The right of holding a Court leet may be forfeited Forfeiture of 
 by long neglect to hold a Court. But in the case of neglect. 
 T/w King v. The Steicard and Suitors of the Manor of The King v. 
 Haver in g-atte-Boicer in the County of Essex (g), decided ^^.c.nfHaver- 
 in the year 1822, it was held that a Court established wp-atu- 
 by charter in that manor (which was a manor of 
 ancient demesne (//) ) was not lost by non-user for fifty 
 years, except for the purpose of levying fines and 
 suffering recoveries, which at that time were levied and 
 suffered in the manor Court in all manors of ancient 
 demesne. 
 
 ((■) Lectures on the Seisin of (r/) 5 B. & Aid. 691. 
 
 the Freehold, p. 15. (/') See Lectures on the Seisin 
 
 (/) Ihid. p. 3C. of the Freehold, p. 31. 
 
 W.P. T
 
 274 
 
 PRESCRIPTIVE RIGHTS. 
 
 Infangtliief 
 and oiitfaug 
 thief. 
 
 Gallows. 
 
 Stat. 1 & 2 
 Phil. & Mary, 
 c. 15, s. 3. 
 
 A hundred. 
 
 Keeping a 
 gaol. 
 
 "With regard to the franchises of infdngti/ief and out- 
 fangtldef mentioned by Lord Coke in the passage that 
 I have read (/), they have both long become obsolete. 
 Infangthlcf was a liberty or privilege, granted to the 
 lords of certain manors, to judge any thief taken within 
 their fee. And in some old charters you may find that 
 the privilege of having a gallows to hang felons upon is 
 expressly granted to the lord of the manor. The right 
 of outfaitgtlucf is a liberty for the lord of a manor to 
 call any man, dwelling in his manor, and taken for 
 felony in another place out of his fee, to judgment in 
 his own Court. The last statute which I am aware of 
 by which these privileges were recognized is the statute 
 1 & 2 Philip & Mary, c. 15, which was " An Act to 
 confirm the liberties of the Lord Marchers in Wales." 
 And that Act provides (/.•), that persons having lord- 
 ships marchers or lordships royal shall have, within the 
 precincts of their lordships, amongst other things, 
 infangtliief and ouffaiigtJiitf as they had had in times 
 past, and as such privileges were granted unto them by 
 point of charter. The franchise of a hundred, which 
 Lord Coke mentions, consists of a right to hold a 
 hundred Court, which belongs of common right to the 
 Crown; but which a subject may have by grant from 
 the Crown, or, as Lord Coke tells us, by prescription 
 from long enjoyment. I apprehend that the franchise 
 of keeping a gaol, like the privilege of having a 
 gallows, is now long obsolete. 
 
 Frank 
 foldao-e. 
 
 Another prescriptive right mentioned by Lord 
 Coke (/), is a right of frank foldage [faldagium), on 
 which it may be as well to say a few words, especially 
 as the right has been sometimes confounded with the 
 right of fold course, which is a totally distinct right, as 
 we shall presently see. Frank foldage is one of those 
 
 (j) Ante, p. 
 (/.•) Sect. 3. 
 
 (0 Co. Litt. 1Mb; ante, p. 
 
 271.
 
 FRANK FOLDAGE. 27o 
 
 oppressive rights, wliieli tlie law permitted in early 
 (lays, but which I think would now bo scarcely tole- 
 rated. It is the right of a lord of a manor or other 
 person to have all the sheep within his manor, or within 
 a certain vill or town or other district, folded at night on 
 his land, for the purpose of manuring it (m) . So that the 
 unfortunate tenants of the manor, or other land owners 
 in the vill, are forbidden to exercise their ordinary 
 common law right of ownership, by folding their own 
 sheep on their own land, but must take them every 
 night to be folded on the land of the lord of the manor, 
 or other person having the prescriptive right of frank 
 foldage, in order that thereby his lands may be the 
 better manui'ed at the expense of theii's. The duty of 
 the tenants to fold their sheep on the lord's land was 
 called suit of iold, •■secfa fahhc {ii). An early instance Suitoffuld. 
 of this right occurs in the third year of King 
 Edward III. (o). John de Sedgeford and his brother 
 brought a TVTit of trespass against William, Prior of 
 the Trinity of Norwich, and others, because they by 
 force of arms broke down his fold, and set their dogs to 
 bite his sheep which were there, so that a great part of 
 the sheep died. And the defence set up was this; — 
 that the Prior of the Trinity of Norwich was lord of the 
 vill of Sedgeford, where the usage of the town was, and 
 had been from time whereof the memory of man ran 
 not to the contrary, that no man in the same vill might 
 erect a sheep fold without the leave and licence of the 
 lord of the vill, namely, the prior and his predecessors ; 
 with the exception only of one person, who and whose 
 ancestors had from time immemorial been used to erect 
 a fold of their own will. And because the aforesaid 
 plaintiffs, tenants of the aforesaid prior, erected a fold, 
 
 (;«) Keilway, 198 a; see also (?;) Spcbnan's Glossaiy, voce 
 
 Year Bcok,Hil. 1 Edw. III. pi. 4; Faldagiiun. 
 
 Pasch. 1 Heu. VII. pi. 17. (o) Year Book, Hil. 3 Edw. III. 
 
 fol. 3 a, pi. 7. 
 T 2
 
 276 PRESCRIPTIVE RIOIITS. 
 
 contrary to the leave and licence of the said prior, they 
 came and abated the fold, as well they might without 
 breaking the peace. This case is mentioned in 2nd 
 Brownlow (j;), in a case of Waggoner v. Fis/i, and also 
 in Lord Coke's Reports («/), as an instance of frank 
 foldage. And in the same report at the same page 
 Lord Coke mentions another instance of the same sort ; 
 namely, a case in which one Jeffery at Hay brought 
 an action of trespass against two persons for breaking 
 his fold at Hastings in the county of Sussex ; and the 
 defence was that Johan de Frichborn, the lady of the 
 manor of Hastings, and her ancestors, and all the lords 
 of the manor whose estate she had, from time imme- 
 morial had the franchise to have a free fold {liheram 
 fahhon) through the whole town of Hastings, and to 
 have a lock of the wool of the sheep ; so that none in 
 the town of Hastings ought to have a free fold without 
 agreement made with her ; and if any did erect a fold 
 without agreement made with her or her ancestors, 
 that the lords for the time being had used to abate it. 
 Jeffery at Hay, the plaintiff, set up a new fold without 
 agreement, wherefore the defendants, as servants to the 
 said Johan de Frichborn, came and disjoined the hurdles 
 and abated them. And it was objected that it was 
 against common right ; for a man, of common right, 
 might have a fold in his own land, and also that it was 
 unreasonable to oust him of that which the common 
 law gives him ; but the objections were overruled, for 
 it was said that every prescription was against common 
 right, and that, although the folding of sheep is for 
 the maintenance of tillage, which is so much esteemed 
 and favoured in law, yet by custom and usage a man 
 may be barred thereof upon his own land, and another 
 than he by whom the land is held may have it. I 
 should hardly suppose, however, that such a custom 
 
 (;;) Page 287. [q) Vol. 8, p. 125 b, in The 
 
 C'dij of London'' s case.
 
 FOLD COURSE. 277 
 
 now exists ; Lut the riglit is curious as showing tlio 
 
 state of the country in ancient times. You observe 
 
 that in the reign of Edward III. the lord wlio claimed 
 
 the right was not said to be the lord of tlie manor, but 
 
 the lord of the vill. This is another instance of a Lord of the 
 
 prescriptive right affecting a viU in early days, rather 
 
 than a manor ; although it is said that the laud owners 
 
 were tenants of the lord of the vill. 
 
 This rig]it of firnik foldaxjc must not be confounded 
 with the right oifold course, which is a right grown out Fold course, 
 of the ancient right of frank foldage, and cannot, 
 I apprehend, exist except in cases where the lord of the 
 manor, or other lord paramount, claimed the right of 
 frank foldage. The right of fold course is a compound 
 right. It is the right of a man to have a fold of his 
 own on certain land, or on his own submanor, instead of 
 sending his sheep to the fold of the superior lord, and 
 a right for the sheep so folded to run for pasture over 
 the commonable grounds of the manor or superior 
 lordship. It is accordingl}' called in old books liberfas 
 faldagii ct cursus orixui (r) . It sometimes includes the land 
 itself on which the fold is privileged to be erected (.s). 
 But in modern times it is nothing more than a right of 
 common for so many sheep appurtenant to certain lands 
 where the sheep-fold formerly stood (/). The distinc- 
 tion between frank foldage and fold course is well 
 explained in a case of Sharp v. BecJieiiotcc {a), where it s/mrpv. 
 is said that the prescription to have foldage cannot "'"''"'"'^• 
 extend to depasturing the sheep of the person who 
 claimed under the prescription ; because " the nature 
 of foldage is only to have tlie sheep, but not my own, 
 
 (;•) West's Symboleographj% 2 "Wins. Saund. 327, u. 11; 
 
 Fines, p. 11, sect. 32; Puusauy Robinson v. Maharajah Duleep 
 
 and Leader's case, 1 Leon. 11. Singh, C. A., 27 W. E. 21 ; L. R., 
 
 [s) Co. Litt. 6 a. 11 Ch. D. 798. 
 
 (/>) Fielding v. Wren, Gary, 65; [u) Lutwyohe, pp. 398, 399 of 
 
 Musgrave v. Gave, Willes, 319; Nelson's translation.
 
 278 
 
 rRESClUPTlYE KIGHTS. 
 
 Spooney v. 
 Bay. 
 
 Ivatt V. l^Ean. 
 
 To^mi flock. 
 
 folded in my lands in the night time. It is true that 
 he hath prescribed likewise for a fold course, which 
 is a sheep walk or a feeding for sheep ; but this," we 
 are told, " is inconsistent with foldage, for that is a 
 liberty to have another man's sheep folded on my land; 
 and a fold course is to have pasture for a certain number 
 of my own sheep upon another man's land." There is 
 a case of Spooncr v. Daij (.r), in which a fold course for 
 300 sheep was claimed by prescription, as a right ap- 
 purtenant to a manor. Part of the manor, together 
 with the fold course, had been demised to the plaintiff 
 for five years; and it was held that the right was in 
 the nature of common certain, and might be well 
 divided or annexed to a parcel of the manor. A right 
 of a similar kind was claimed in the more modern case 
 of Ivaff V. Man {>/). In this case it appeared that from 
 time immemorial, two flocks of sheep had depastured 
 upon the open fields and commons of Hampton Lyles, in 
 the county of Cambridge, namely, the town flock, con- 
 sisting of sheep put in by the occupiers of ploughed 
 land in the vill ; and the manor flock, consisting of 
 sheep belonging to, and levant and couchant upon, the 
 manor farm. In that case, the occupier of the manor 
 farm claimed a separate right of feeding and folding an 
 unlimited number of sheep to his own use ; but his 
 claim was disallowed, the evidence showing that the 
 right of the manor flock was only with respect to sheep 
 levant and couchant upon the manor farm. 
 
 Another prescriptive right or franchise is that of a 
 
 lord of a manor to comj^cl all the tenants and inhabi- 
 
 To bake bread tants Within the manor to bake bread at his bakehouse, 
 
 blkehouse'^ or to grind their corn at his mill. Thus in the case to 
 
 which I have already referred, the Cifi/ of London^s 
 
 (x) Cro. Car. 432; -S'. C. nora. 
 Day V. Sj)oo)ic, Sir AV. Jones, 
 375. 
 
 (y) 3 Man. & Gr. G91, anno 
 1842.
 
 PRESCRIPTION AND CUSTOM. 279 
 
 case {z), an instance is given of this prescription. Sir 
 George Farmour brought an action on the ease against 
 one Brook, and showed that he was seised of the manor 
 of Torcester, in the county of Northampton, in fee ; 
 and that all the tenements of the said town are held 
 of the said manor ; and showed that, from time imme- 
 morial, he and all those whose estate he had, liad had a 
 bakehouse, parcel of the said manor, maintained at their 
 charge, and that this bakehouse was sufficient to bake 
 bread for all the inhabitants and for all passengers 
 through the same town ; and that the bread so baked 
 used to be sold at reasonable prices ; and that no other 
 person within the said town had used to bake any bread 
 to sell to any person. And it was adjudged a reason- 
 able custom by Sir Christopher Wray and the whole 
 Court. So in the case of Hex v. Gardiner (a) it was To grind com 
 held that the lord of a manor might bind resiajifs, that n^m, 
 is, persons dwelling within his manor (7/), and inhabi- 
 tants within the same, to come and grind their corn at 
 his mill. It was held in that case that the claim would 
 be clearly good by way of tenure ; that is, where the 
 tenants of a manor held by such a service ; but it was 
 also held to be a good prescription, as against resiants 
 and inhabitants, as well as against tenants. 
 
 You may have observed in this case how very nearly Prescription 
 prescription and custom run together. The distinction '^^^ custom, 
 between the two, you may remember, as mentioned by 
 Lord Coke (c), is that a prescription is personal, 
 applying to a man and his ancestors, or those whoso 
 estate he hath, or in bodies politic or corporate and 
 their predecessors ; but a custom is local, is alleged in 
 no person, but laid within some manor or other place. 
 It seems, in truth, that the same claim may be spoken 
 of either as a prescription or as a custom, according to 
 
 (r) 8 Rep. 125 b. (i) Ante, p. 272. 
 
 [a) 2 Bulst. 195. (c) Co. Litt. 113 b; ante, p. 1.
 
 280 IMIESCIUPTIVE RIGHTS. 
 
 tlie manner in wliicli it is viewed. Thus wliere the 
 right is claimed that all the inhabitants of a place 
 should bake bread at the lord's bakehouse, or grind 
 thou- corn at the lord's mill, this claim, viewed in 
 regard to the lord of the manor, is a claim by pre- 
 scription ; because he prescribes that he is lord of the 
 manor, and that ho and all those whose estate he hath, 
 have, from time immemorial, had this right. But 
 viewed in regard to the rcsiants within the manor, who 
 are under an obligation to conform to the right so 
 claimed, it is a custom laid within the manor, and 
 therefore local. So that, with regard to a right of this 
 kind, it may bo called cither a prescription or a custom, 
 according as it is viewed in the light of the person 
 claiming it, or in the light of those who are bound by 
 the claim. 
 
 Treasure Treasure troce is another franchise often claimed by 
 
 lords of manors by grant from the Crown or by pre- 
 scription. Treasure trove is thus explained by Black- 
 stone in his Commentaries {d). " Treasure trove 
 (derived from the French word trover, to find), called 
 in Latin thesaurus inreiifus, is where any money or coin, 
 gold, silver, plate or bullion is found hidden in the 
 earth or other private place, the owner thereof being 
 unknown ; in which case the treasure belongs to the 
 king ; but if he that hid it bo known or afterwards 
 found out, the owner and not the king is entitled to it. 
 Also if it be found in the sea, or ujwii the earth, it doth 
 not belong to the king, but the finder, if no owner 
 appears. So that it is the Jiiding and not the aban- 
 doning of it that gives the king a property ; Bracton 
 defining it in the words of the civilians to be ' vetus 
 dcpositio jjccunice.' This difference clearly arises from 
 the different intentions which the law implies in the 
 owner. A man that hides his treasure in a secret 
 
 {d) Vol. 1, p. 295.
 
 WAIFS. 281 
 
 placG evidently does not mean to rclinqiiisli liis pro- 
 perty ; but reserves a right of claiming it again wlien 
 he sees occasion ; but if he dies, and the secret also dies 
 with him, the law gives it to the king in part of his 
 royal revenue. But a man that scatters his treasure 
 •into the sea or upon the public surface of the earth is 
 construed to have absolutely abandoned his property, 
 and returned it into the common stock without any 
 intention of reclaiming it ; and therefore it belongs, as 
 in the state of nature, to the first occupant or finder, 
 unless the owner appear and assert his right, which 
 then proves that the loss was by accident and not with 
 an intent to renounce his property." Nothing but gold 
 and. silver comes within the description of treasure 
 trove. 
 
 TFai/h are another prescriptive right, often belongnig Waifa. 
 to lords of manors by grant from the Crown, or by 
 prescriiition. " Waifs," says Blackstone in his Com- 
 mentaries (e), " boua waviata, are goods stolen and 
 leaked or thrown away by the thief in his flight, for 
 fear of being apprehended. These are given to the 
 kin^ by the law as a punishment upon the owner, for 
 not himself pursuing the felon and taking away his 
 goods from him. And therefore if the party robbed do 
 his diligence immediately to follow and apprehend the 
 thief (which is called making frcnh suit) or do convict 
 him afterwards, or procure evidence to convict him, he 
 shall have his goods again. Waived goods do also not 
 belong to the king till seized by somebody for his use ; 
 for if the party robbed can seize them first, though at 
 the distance of twenty years, the king shall never have 
 them. If the goods are hid by the thief, or left any 
 where by him so that he had them not about him when 
 
 {e) Vol. 1, p. 297.
 
 282 PRESCKirTIVE IIIGIITS. 
 
 he fled, and therefore did not throw them away in liis 
 flight, these also are not bona irariata, but the owner 
 may have them again when he pleases. The goods of 
 a foreign merchant, though stolen and thrown away in 
 flight, shall never be waifs ; the reason whereof may be, 
 not only for the encouragement of trade, but also 
 because there is no wilful default in the foreign mer- 
 chant's not pursuing the thief; he being generally a 
 stranger to our laws, our usages, and oiu- language." 
 
 Stolen goods. I may add, with regard to stolen goods, that if the 
 thief should sell the goods, even to a bond fide purchaser 
 (so that the sale is not made in open market, or market 
 overt as it is called), yet the true owner of the goods 
 may recover his projoerty from the purchaser. And it 
 is not necessary for this purpose that he should first 
 have prosecuted the felon. Thus in the case of Lee v. 
 Baijes (/), a person bond fide bought a horse, which had 
 been stolen, at a repository for horses which was out of 
 the city of London, and not in law a market overt. 
 The owner of the horse, finding it there, brouglit an 
 action against tlie owner of the repository and the pur- 
 chaser, for the wrongful conversion of the horse to their 
 own use ; and he was held entitled to recover. With 
 regard to the duty of a person whose goods have been 
 stolen to prosecute the thief, it has been held in a 
 recent case in the Queen's Bench, that, although un- 
 doubtedly that is his duty, and although the riglit of 
 redress by action is suspended until the party inflicting 
 the injury is prosecuted, yet this rule is not always 
 capable of being enforced. The case I refer to is that 
 
 Wells \. of Wells V. AbraJiam {(/). In that case an action of 
 
 trover and trespass for a valuable brooch was brouglit 
 against the defendant; and the jury found a verdict for 
 
 (/) 18 C. B. 599. iff) L. R., 7 Q. B. 554.
 
 STOLKN GOODS. 283 
 
 the plaintiff. Whereupon a rule for a new trial was 
 obtained on the ground that it appeared from the 
 evidence that the brooch was taken by the defendant 
 under such circumstances as to prove a charge of 
 felony ; and that the judge ought, therefore, to have 
 nonsuited the plaintiff. The defendant, you will ob- 
 serve, in this case endeavoured to get off from the action 
 on the ground that the evidence showed that he must 
 have stolen the brooch ; and so the plaintiff could not 
 recover in a civil action, until he had prosecuted the 
 defendant for felony. But, as the Chief Justice 
 said (//), " Having obtained a rule founded upon tlie 
 hyj)othesis that the facts proved at the trial amounted 
 to a felony, he, the counsel for the defendant, yet per- 
 sists in denying that his client has committed a felony ; 
 so that he seeks to have the benefit of something, the 
 existence of which he denies. When the case has thus 
 been explained, it is manifest that the defendant has no 
 locus standi to make this application. He can only 
 apply to us on the ground that he has committed a 
 felony ; but at the same time he denies that he is a 
 criminal. Can it be said that my learned brother at 
 the trial did anything beyond that which he was called 
 upon to do, namely, try the issues brought before him ? 
 I think therefore there is no ground for making the 
 rule absolute." It appears therefore that unless a 
 stealer will confess that he is indeed a thief, he cannot 
 resist a civil action brought against him, for the re- 
 covery of the goods, by the person from whom they 
 have been stolen. 
 
 A sale in market overt gives the purchaser a valid Market overt, 
 title to the goods he has purchased, subject however to 
 the rule already mentioned with regard to waifs (/) 
 that, if the true owner of the goods prosecutes the felon 
 
 (/() rage 559. (i) Ante, p. 281.
 
 284 rUESCRlPTIVE lUGIITS. 
 
 to conviction, the property in the goods vests in him, 
 Avhether tliej have been sold in market overt or not. 
 The law on this subject is now contained in the statute 
 Stat. 24 & 25 24 & 25 Vict. c. 96, which enacts (/.•) that, if a person 
 s. 100. ' g^iilb' of stealing any chattel, money, valuable security, 
 or other property whatsoever, shall be indicted for such 
 offence by or on the behalf of the owner of the property 
 or his executor or administrator, and convicted thereof, 
 in such case the property shall be restored to the owner 
 or his representative, with this exception, that if it shall 
 appear that any valuable security shall have been bond 
 fide paid or discharged by some person or body cor- 
 porate liable to the payment thereof, or, being a nego- 
 tiable instrument, shall have been bond fide taken or 
 received by transfer or delivery by some person or body 
 corporate, for a just and valuable consideration, without 
 any notice, or without any reasonable cause to suspect 
 that the same had by any felony or misdemeanor been 
 stolen, obtained or clisjiosed of, in such case the Court 
 shall not order the restitution of such security. But 
 this section is not to apply to the case of any prosecu- 
 tion of any trustee, banker, merchant, attorney, factor, 
 broker or other agent intrusted with the possession of 
 goods, or documents of title to goods, for any misde- 
 meanor against the Act. A further provision in 
 favour of a bond fide purchaser, which perhaps may not 
 often be of much value, has been made by the statute 
 Stat. 30 & 31 30 & 31 Yict. c. 35 (/), which provides that where any 
 6.^9 " ^ ^' prisoner shall be convicted, either summarily or other- 
 wise, of larceny or other offence, which includes the 
 stealing of any property, and it shall appear to the 
 Court by the evidence that the prisoner has sold the 
 stolen property to any person, and that such person has 
 had no knowledge that the same was stolen, and that 
 any monies have been taken from the prisoner on his 
 
 (/,) Sect. 100. (/) Sect. 9.
 
 STOI,EN GOODS. 285 
 
 apprehension, it sliall bo lawful for the Court, on ilio 
 application of sucli purchaser, and on the restitution of 
 the stolen property to the prosecutor, to order that out 
 of such monies a sum not exceeding the amount of the 
 proceeds of the said sale he delivered to the said pur- 
 chaser. The remedy given by this section depends, you 
 will observe, upon the precarious fact of the prisoner 
 having money upon him and taken from him at the 
 time of his apprehension.
 
 28G 
 
 PRESCRIPTIVE RIGHTS. 
 
 LECTUEE XX. 
 
 Another of those rights, to which, cas Lord Coke tells 
 us, a title may be made by prescription, is the right 
 
 Estrays. to EHfraijs. Estrays are thus described by Blackstone 
 
 in his Commentaries {a) : " Estrays are such valuable 
 animals as are found wandering in any manor or lord- 
 ship, and no man knoweth the owner of them ; in which 
 case the law gives them to the king as the general 
 owner and lord paramount of the soil, in recompense 
 for the damage which they may have done therein : 
 and they now most commonly belong to the lord of the 
 manor, by special grant from the Crown. But, in 
 order to vest an absolute property in the king or his 
 grantees, they must be proclaimed in the church and 
 two market towns next adjoining to the place where 
 they are found : and then, if no man claims them, after 
 proclamation and a year and a day passed, they belong 
 to the king or his substitute without redemption, even 
 though the owner were a minor, or under any .other 
 legal incapacity." If the owner claims the estray 
 within the year and a day, he must pay the charges 
 of finding and keeping and proclaiming it. Animals 
 upon which the law sets no value, as a dog or cat, and 
 
 Swans. animals ferm natiirce, cannot be estrays. Swans, how- 
 
 ever, being royal fowl, may be estrays, but not any 
 other fowl. An estray is an animal of value, tame and 
 reclaimable, such as a horse, an ox, a sheep, or a pig. 
 
 The advantage which the lord of a manor may gain 
 by having a riglit of estrays is no doubt very pre- 
 carious ; for cattle, wlien they go astray, frequently 
 
 [a) Vol. 1, p. 297.
 
 ESTRAYS. 287 
 
 commit trespass on the lands of other persons than 
 
 theii- owners, doing damage, of course, to the grass or 
 
 crops that may he growing there. When this oceui's Distress of 
 
 n T f 1 • J^ f f I^ ^ i c.'ittlo (lamacrc 
 
 m consequence oi any delect in the lences oi the lands, feasant. 
 
 the owner of the cattle is hound to remove them within 
 a reasonable time {b) ; and if he do not, or if the cattle 
 have broken down the fencing, the cattle may be seized 
 or distrained damage feasant, as it is called. This may 
 be done by the owner of the land summarily and with- 
 out legal process ; but the cattle must be actually on 
 the premises when distrained and doing damage thereto ; 
 and if there are more beasts than one, each beast can 
 only be seized and detained for the damage actually 
 done by itself only, and not for any part of the general 
 damage done by the others (c). The distress may be 
 taken at any time, either at the night or in the day, 
 when the cattle are found upon the premises. And the 
 remedy is not confined to the mere owner of the soil 
 upon which they may be found ; for a person who has Commoner_ 
 a right of common on a waste may distrain the cattle ^^anireVs 
 of a stranger damage feasant, found on that waste, on cattle damage 
 account of the injury done to his right of common [d). 
 If the owner of the cattle makes a sufficient tender for 
 the damage done before the cattle are actually taken, 
 the taking is milawful. And if, after the cattle are 
 taken, and before they are impounded, sufficient tender 
 is made for the damage done, they can no longer be 
 lawfully detained. The right to impound damage feasant Dogs and 
 extends not only to cattle, but also to dogs and other objects may 
 animals, and even to inanimate objects, such as nets ^^ distrained 
 and oars on a several fishery if), and an engine imduly feasant. 
 placed on and incumbering a railway (/). 
 
 (i) Goodu-'m v. Clicveley, 4 H. (c) Vin. Abr. tit. Distress (A) ; 
 
 & N. 631. Sec also Singleton v. ante, p. 259. 
 Williamson, 7 H. & N. 410. (/) Amhergatc, S;c. llailway Co. 
 
 (c) Vin. Abr. tit. Distress (A). v. Midland liaihca)j Co., 2 ElHs & 
 
 ((^) J/bmVs c«4e,Godbolt, 185; BJ. 793. 
 Vin. Abr. tit. Distress (C), 1.
 
 288 
 
 PHESCRIPTIVE RIGHTS. 
 
 Person 
 impounding 
 cattle to 
 supply them 
 with food and 
 water. 
 
 Power to sell 
 animal for 
 value of food 
 supplied. 
 
 The person wlio impounds cattle is now bound 
 to supply them with food and water, a measure of 
 humanity which did not exist at the common law, by 
 which the owner of the cattle was bound to feed them 
 while they were in an open pound ; and if the owner 
 did not know where they were, they ran a risk of 
 dying of starvation. The Act of 12 & 13 Vict. c. 92, 
 for the more eifectual prevention of cruelty to animals 
 (which repeals a prior Act for the same purpose) {g), 
 provides {li) that every person who shall impound or 
 confine, or cause to be impounded or confined, in an}^ 
 pound or receptacle of the like nature any animal, 
 shall provide and supply, dm-ing such confinement, a 
 sufficient quantity of fit and wholesome food and water 
 to such animal, under a penalty of twenty shillings. 
 And (/) if any animal shall be impounded without fit 
 and sufficient food and water for more than twelve 
 successive hours, any person may enter the pound, and 
 supj^ly such animal with fit and sufficient food and 
 water, so long as it remains confined ; and the reason- 
 able cost of such food and water shall be paid by the 
 owner of such animal, before such animal is removed, 
 to the person who shall supply the same. And by a 
 later statute (/.) every person impounding an animal, 
 and supplying it witli food and water, may recover 
 from the owner of the animal not exceeding double the 
 value of the food and water so supplied, or if he thinks 
 fit, he may, instead of proceeding for the recovery of 
 the value thereof, after the expiration of seven clear 
 days from the time of impounding the same, sell any 
 such animal openly at any public market (after having 
 given three days' public printed notice thereof) for the 
 most money that can be got for the same, and may 
 apply the produce in discharge of the value of sucJi 
 
 {g) Stat. 5 & G Will. IV. c. o9. 
 (//) Stat. 12 & 13 Vict. c. 92, 
 
 (0 Sect. 6. 
 
 {k) Stat. 17 & 18 Vict. c. CO, 
 
 1.
 
 ^vIlECK. 289 
 
 food and water so supplied as aforesaid, and (lie ex- 
 penses of and attending such sale, rendering the 
 overplus, if any, to the owner of such animal. 
 
 Wrecks of tJie sea are thus described by Blackstone in Wrecks of the 
 his Commentaries (/) : " Another maritime revenue is 
 that of shipwrecks; which are also declared to be the 
 king's property by the prerogative statute 17 Edw. II. 
 c. 2 ; and were so, long before, at the common law. It 
 is worthy observation how greatly the law of wrecks 
 has been altered, and the rigoui' of it gradually softened 
 in favoiu' of the distressed proprietors. "Wreck, by the 
 ancient common law, was where any ship was lost at 
 sea, and the goods or cargo were thrown upon the 
 land ; in which case these goods, so wrecked, were ad- 
 judged to belong to the king ; for it was held, that, by 
 the loss of the ship, all property was gone out of the 
 original owner. But this was undoubtedly adding 
 sorrow to soitow, and was consonant neither to reason 
 nor humanity. Wherefore it was first ordained by 
 King Henry I. that if any person escaped alive out of 
 the ship it shoidd be no wreck ; and afterwards King 
 Henry II., by his charter, declared that, if on the 
 coasts of either England, Poictou, Oleron or Gascony, 
 any ship should be distressed, and either man or beast 
 should escape or be found therein alive, the goods 
 should remain to the owners, if they claimed them 
 within thi'ee months ; bvit otherwise should be esteemed 
 a wreck, and should belong to the king, or other lord of 
 the franchise. This was again confirmed with im- 
 provements by King Richard I. ; who, in the second 
 year of his reign, not only established these concessions 
 by ordaining that the owner, if he was shipwrecked and 
 escaped, ' omnes res suas Uheras et quietns hahcrct^ but 
 also that, if he perished, his children, or, in default of 
 them, his brethren and sisters, should retain the 
 (/) Vol. 1, p. 291. 
 
 W.P. u
 
 290 PRESCRIPTIVE RIGHTS, 
 
 property ; and in default of brother or sister, then the 
 goods should remain to the king. And the law, as 
 laid down by Bracton in the reign of Henry III., 
 seems still to have improved in its equity. For then, if 
 not only a dog (for instance) escaped, by which the 
 owner might be discovered, but if any certain mark 
 were set on the goods, by which they might be known 
 again, it was held to be no wreck. And this," says 
 Blackstone, " is certainly most agreeable to reason ; the 
 rational claim of the king being only founded upon 
 this, that the true owner cannot be ascertained. After- 
 wards, in the Statute of Westminster the First, the 
 time of limitation of claims given by the charter of 
 Henry II. is extended to a year and a day, according 
 to the usage of Normandy ; and it enacts : that if a 
 man, a dog, or a cat escape alive, the vessel shall not be 
 adjudged a wreck. These animals, as in Bracton, are 
 only put for examples ; for it is now held, that not 
 only if any live thing escape, but if proof can be made 
 of the property of any of the goods or lading which 
 come to shore, they shall not be forfeited as wreck." 
 
 *'It is to be observed," continues Blackstone {>n), 
 " that in order to constitute a legal wreck, the goods 
 must come to land. If they continue at sea, the law 
 distinguishes them by the barbarous and uncouth ap- 
 Jetsam, pellations oi jetsam, flotsam, and Ilgaii. Jetsam is where 
 
 flotsam, and goods are cast into the sea, and there sink and remain 
 under water : flotsam is where they continue swimming 
 on the surface of the waves : ligan is where they are 
 sunk in the sea, but tied to a cork or buoy, in order to 
 be found again. These are also the king's, if no owner 
 appears to claim them ; but, if any owner appears, he 
 is entitled to recover the possession. For even if they 
 be cast overboard without any mark or buoy, in order 
 to lighten the ship, the owner is not by this act of 
 
 (w) Vol. 1, p. 292.
 
 ^VRFX•K. 2!)1 
 
 necessity construed to have renounced his property : 
 much less can things ligan he supposed to ho ahan- 
 doned, since the owner has done all in his power to 
 assert and retain his property. These three are there- 
 fore accounted so far a distinct thing from the formei', 
 that hy the king's grant to a man of wrecks, things 
 jetsam, flotsam, and ligan will not pass." 
 
 The right to wreck of the sea was in ancient times Hif^lit to 
 frequently granted by the Crown to lords of manors soa, by grant 
 and other persons ; and it may be claimed by a subject °y preserip- 
 either by express grant or by j)rescription. But, as 
 Lord Hale remarks (;?), "He that hath wreck of the 
 sea or royal fish by prescription hifra nuaicriioti, it is 
 a great presumption that the .shore is part of the manor, 
 as otherwise he could not have them" (o). 
 
 The procedure in case of wreck is now governed by 
 the Merchant Shipping Act, 1854 (p), amended by the 
 Merchant Shipping Act Amendment Acts, I800 {q) and 
 1862 (r). The Board of Trade has now throughout 
 the United Kingdom the general superintendence of 
 all matters relating to wa'cck ; and it may, with the 
 consent of the Treasury, appoint any officer of customs, 
 or of the coastguard, or any officer of inland revenue, 
 or, when it appears to such board to be more con- 
 venient, any other person to be a receiver of icrcck in Receivers of 
 any district (s). The receiver is authorized to summon 
 such number of men as he thinks necessary, to require 
 aid from any ship or boat near at hand, or to demand 
 the use of any waggon, cart, or horses that may be near 
 
 («) Hale, de Jure Maris, part (v) Stnt. 18 1- 19 Vict. c. 91, 
 
 1, c. 6; Hargrave's Law Tracts, ss. 19, 20. 
 
 p. 27. ('■) Stat. 25 i- 2G Vict. c. G3, 
 
 (oj See ante, p. 266. ss. 49—53. 
 
 Ip) Stat. 17 & 18 Vict. c. 104, (*) Stat. 17 & 18 Vict. c. 104, 
 
 part 8. , s. 439. 
 
 V 2
 
 292 
 
 PRESCRIPTIVE RIGHTS. 
 
 "UTiere lord 
 of a manor 
 entitled to 
 ■vn*eck. 
 
 at liaiiLl, with a view to the preservation of any ship or 
 Loat stranded or in distress at any place on shore, or 
 her cargo and apparel {f). In cases where any lord of 
 a manor or other person is entitled for liis own use tc 
 any unclaimed wreck, such person must deliver to the 
 receiver a statement containing the particulars of his 
 title, and the address to which notices are to be sent ; 
 and upon such statement being so delivered, and proof 
 made to the satisfaction of the receiver of the validity 
 of such title, it shall be his duty, whenever he takes 
 possession of any wreck, to send within forty-eight 
 hours thereafter a description of the same, and of any 
 marks by which it is distinguished, directed to such 
 address as aforesaid (u). In the event of no owner 
 establishing a claim to the wreck within a year from 
 its coming into the possession of the receiver, the wreck 
 must be given up, on payment of all expenses, fees, and 
 salvage, to the person who has so given notice of and 
 proved his title thereto (.r). And if no owner estab- 
 lishes his claim to wreck so found before the expu'ation 
 of a year as aforesaid, and no lord of a manor or per- 
 son other than her Majesty, either in right of her 
 Crown or of the Duchy of Lancaster or Cornwall, is 
 proved to be entitled to the same, then it is to be sold 
 benefit of the jjy the receiver, and the proceeds thereof, after payment 
 
 Crown. i. */ 
 
 of all expenses, fees, and salvage, are to be paid into 
 the Exchecpier and dealt with as provided by the 
 Acts (y). 
 
 Sale for 
 
 Royal SsLes. 
 
 Bof/al fs/ies, which Lord Coke mentions, are whales 
 and sturgeons, which, when taken, belong of right to 
 the Crown ; but the right to them may bo vested in the 
 lord of a manor or other subject by grant from the 
 Crown, or by proscription. There were otiier franchises 
 
 (0 Stat. 17 & 18 Vict. c. 10-1, 
 s. 442. 
 
 (ii) Sect. 4o4. 
 {x) Sect. 471. 
 
 {!/) Stats. 17 it 18 Vict. c. 104, 
 475; 25 & 20 Viet. c. 63,
 
 FAIRS AM) MMIKKTS. 293 
 
 which have now been abolished, but ^\■lueh in former days 
 were often vested in subjects by grants from the Crown, 
 though they coukl not be claimed by prescription (::). 
 One of these was the right to the goodn of fi'loiis. But G(jocls of 
 the Act to abolish forfeitures for treason and felony, „ , ' 
 
 . "^ ' Jjoricitures 
 
 and to otherwise amend the law relating thereto (r/), abolished, 
 provides (/>), that from and after the passing of that 
 Act — which took place on the 4th of July, 1S70 — no 
 conviction of treason, felony, or fcio do sc shall cause 
 any forfeiture ; although nothing in the Act is to affect 
 the law of forfeiture consequent upon outlawry, and 
 which accordingly still exists (r). Another right fre- 
 quently granted to subjects was the right to dcoddndu, Dcodands. 
 which are thus described in Cruise's Digest [d) : " AVhere 
 a person comes to a violent death b}^ mischance, the 
 animal or thing which was the cause of his death be- 
 comes forfeited, and is called a dcodiiiid ; as if given to 
 Grod to appease his wrath : and the forfeitvire accrues 
 to the king or the lord of the manor, having this fran- 
 chise by grant from the Crown or by prescription." 
 The right to deodands, however, like the right to the 
 goods of felons, could not have been claimed by pre- 
 scription, according to the passage from Coke upon 
 Littleton, which I cited in my fii'st Lecture {(■). And 
 now, by the Act to abolish deodands (/), it is provided I^'ow 
 that, after the 1st of September, 184G, there shall be 
 no forfeiture of any chattel for or in respect of the 
 same having moved to or caused the death of man. 
 
 Another franchise mentioned by Lord Coke is that of Fairs aud 
 holding fairs and markets, in which is usuall}', but not ™''^^ ^*"'' 
 necessarily, comprised the right of taking toll for goods 
 
 {z) Ante, p. 3. is now abolislied. 
 (a) Stat. 33 & 3-1 Vict. c. 23. {d) Vol. 3, tit. FraucLise, p. 
 
 \b) Sect. 1. 261. 
 
 (V) By stat. 42 & 43 Vict, c. 59, (') Co. Litt. 114 a ; ante, p. 3. 
 
 s. 3, outlawry in civil proceedings (/) Stat. 9 & 10 Vict. c. 62.
 
 294 
 
 rRESCRll'TIVE RIGHTS. 
 
 Pickage. 
 Stallage. 
 
 Change of 
 Bite. 
 
 Ellis V. The 
 Mayor, <^-c. of 
 Bridgnorth . 
 
 sold in the fan' or market, and also for piekage and 
 stallage, or the right of picking up the ground and 
 setting up booths and stalls in the market or fair (g). 
 When a person has a right to hold a market within 
 a certain district, the presumption is that the original 
 grant from the Crown is for the holding of the market 
 at any convenient place mthin that district ; and ac- 
 cordingly the owner of the market may change the site 
 of it to any other place within the district within which 
 it is to bo held. But this removal cannot be made, if 
 it interferes with the prescriptive rights of other persons, 
 the origin of which might have been a condition con- 
 tained in the original grant, that such persons should 
 enjoy some particular privilege, connected with the 
 market, which they cannot enjoy if the market place 
 is removed. Thus in the case of Ullis v. The Mat/or^ 
 Aldermen and Buvgessen of the Borough of Bridgnorth (h), 
 it appeared that, from time immemorial, a weekly 
 market had been held in the High Street of Bridgnorth. 
 The market belonged to the corporation of Bridgnorth, 
 wlio were also lords of the manor in which the borough 
 is situate. The plaintiff was the owner of a house in 
 the High Street, and he and the previous owners and 
 occupiers of that house, as well as several other occupiers 
 of houses in High Street, had from time immemorial 
 erected, on market days, stalls opposite their respective 
 houses, and had exposed thereon goods for sale in the 
 market, or let the stalls for hire to others who had 
 done so ; and no payment had ever been made or claimed 
 by the corporation for stallage, or for tolls of things 
 sold at such stalls, though they took tolls of similar 
 produce exposed elsewhere in the market. The cor- 
 poration removed the market to another place within 
 the borough, at a small distance from the High Street : 
 and so necessarily injuriously affected the interests of 
 
 iff) See Yard v. Ford, 2 Wms. 
 Saimd. 172; Elwes v. Payuc, L. 
 
 R., 12 Ch. Div. 468. 
 (70 15 C. B.,N. S. 52.
 
 yAIRS AM) MARKETS. '2'J^ 
 
 those who had rights in the okl ni.irket. And it was 
 hekl that the pLaintiff was entitled to maintain an 
 action against the corporation for tlie unlawful dis- 
 turbance by them of his enjoyment of this right. 
 
 The right of sfaJlage is a right for a paj'ment to be Stallage, 
 made, to the owner of the market, in respect of the 
 exclusive occupation of a portion of the soil, for the 
 purpose of selling goods in the market. And in the 
 case of Tlie Mai/o)\ Aldermen and Burgesses of Great Mayor, ^c. of 
 Tar mouth v. Groom (J), it was held that, in order to Yarmouth v. 
 enable the owner of a market to claim payment for <^''^o'"- 
 stallage, it was not necessary that the stall should be 
 fixed into the soil ; but that if the person selling goods 
 used a chair and a large wooden basket (in this case 
 four feet long, two feet and a half wide, and two feet 
 high) with a lid which formed a table, on which pro- 
 visions were exposed for sale, he was liable for stallage, 
 quite as much as if he had had a stall in the market 
 fixed in the ground. The right of stallage, being a Stallage 
 right to the exclusive occupation of a portion of tlie ^^ ^^ '' °' 
 soil, is liable to be rated for the poor. But tolls taken Tolls not 
 by the owner of a market in respect of cattle brought ^^*^^°^*'- 
 into the market for sale, which tolls become due as soon 
 as the cattle are brought into the market place, and 
 before the cattle are put into a pen or tied up, are mere 
 market tolls, and are not in the nature of stallage, or 
 tolls taken in respect of the use of the soil ; and, in 
 assessing the lessee of the market and tolls to the poor 
 rate, in respect of his occupation of the market place, 
 such tolls cannot be taken into account as enhancing 
 the value of the occupation. This was decided in the The Queen y. 
 case of The Queen v. Casswell [k). 
 
 A practice has grown up in modern times of selling 
 
 (0 1 H. k C. 102. reretj v. Ashford Union, C. A., 31 
 
 (/.) L. R., 7 Q. B. 328. See L. T..X. S. 597. 
 
 Casstvell.
 
 296 
 
 PRESCRIPTIVE RIGHTS. 
 
 Sale by 
 sample not 
 sale in 
 market overt. 
 
 Crane v. 
 London Bock 
 Comjjantj. 
 
 Disturbance 
 of market. 
 
 Mayor, ^c. of 
 Brecon v. 
 Edwards. 
 
 oorn aud seeds by sample, instead of in bulk. And it is 
 held that such a sale is not a sale in market overt or open 
 market, and does not give the purchaser by sample an 
 indefeasible title to goods bought, which, as we have 
 seen (/), a sale in open market generally does. Thus 
 in the case of Crane v. The London Dock Company (m), 
 it was held that a sale made by sample in a shop in the 
 city of London, in which, by the custom of the city, 
 every shop is a market overt for the goods sold therein, 
 was not a sale in market overt. Mr. Justice Blackburn 
 remarked (^^), "It is pretty clear that the privilege 
 given by law to a sale in market overt of binding 
 property against the true owner, was originally given 
 in consequence of its policy of encouraging markets 
 and commerce. I agree with the plaintiff's counsel 
 so far. But I think that for that purpose the vendor 
 [purchaser] must buy the goods under circumstances 
 such as would induce him to think the sale a good sale 
 in market overt ; namely, he must buy a thing which 
 is openly exposed in market overt, under such circum- 
 stances that he might say to himself, no person but the 
 owner would dare to expose them for sale here, and 
 therefore I have a right to assume that the shopkeeper 
 has a right to sell them. I think this principle runs 
 through all the cases, that the goods must be corporally 
 present and exposed in the market." A sale of goods 
 by sample, within a market, is a disturbance of the 
 market, and renders the vendor liable in damages to 
 the owner of the market for the tolls of which he is 
 thus deprived. But such a sale of goods, near to, but 
 without the market, is not necessarily actionable. Thus 
 in the case of T/ic Mat/or, Aldermen and Burgesses of the 
 Borough of Brecon v. Edwards (o), the plaintiffs claimed 
 a market within the town of Brecon, and brought an 
 action against the defendant for selling corn by sample 
 
 (/) Ante, p. 283. 
 
 (w) 5 Best & Smith, 313. 
 
 {») Page 320. 
 
 \o) 1 Hurl. & Colt. 
 
 51.
 
 FAIRS AM) MARKETS. 2d'i 
 
 within the borough. It appeared that the defeudant's 
 son went, as his agent, on a market day to the shop of 
 a person within the borougli, near the market place, 
 and there sold him by sample some oats, which were 
 delivered on the following market day. And it was 
 held that the defendant was entitled to the judgment of 
 the Court, there being, in the opinion of the Court, 
 no infringement of the plaintiff's market by this trans- 
 action. The substance of the decision seems properly 
 summed up in the marginal note, which is, " That a sale 
 by sample on a market day, near to but without the 
 limits of the market, is not a disturbance of the market, 
 imless it is done designedly and with the intention 
 to evade payment of toll." 
 
 Markets and fairs are frequently established by Act Markets and 
 of Parliament. And in the year 1847 an Act was Sshcd by^' 
 passed for consolidating in one Act certain provisions Act of 
 usually contained in Acts for constructing or regulating 
 markets and fairs, called the Markets and Fail's Clauses 
 Act, 1847 {p). It has been held, in a case in Ireland, 
 that the protection attendant upon a sale in market 
 overt is not confined to ancient markets, created by 
 charter or by prescrijjtion, but extends to modern 
 markets established under powers conferred by Act of 
 Parliament {q). And with regard to sales, it has been 
 held, in another case in Ireland {>•), that a person, not 
 being a licensed hawker, was liable to be committed 
 and fined for selling corn by sample in a place other Sale by 
 than his own dwelling-place or shop, within the muni- ^^'"P^^- 
 cipal boundary of the city of Londonderry, the bulk of 
 the corn being at the time of sale within the municipal 
 boundar3^ The sale by sample, the corn being within 
 the boundary, was held to be a breach of the 13th 
 
 (p) Stat. 10 & 11 Vict. c. 14. {>■) Mayor of Londonderry v. 
 
 (if) Gauly V. Ledwidgc, 10 Ir. ^/'^Min^y, 9 Ir. Eep.,Com. Law, 
 p. Com. Law, Q. B. 33. C. T. 71.
 
 298 
 
 IMJESCllirTnE RIGHTS, 
 
 section of the Markets and Fairs Clauses Act, 1847, 
 whicli provides that, after the market-place is open for 
 public use, every person, other than a licensed hawker, 
 who shall sell or expose for sale in any place within the 
 prescribed limits, except in his OAvn dwelling-place or 
 shop, any articles in respect of which tolls are, by the 
 special Act, authorized to be taken in the market, shall 
 for every such offence be liable to a penalty not ex- 
 ceeding 40.S. 
 
 The Act to amend the law relating to fairs in 
 England and Wales (s), which may be shortly cited as 
 " The Fairs Act, 1873," empowers the secretary of 
 state {f), upon representation duly made to him by the 
 justices acting in and for the petty sessional division in 
 which any fair is held, or by the owner of any fau' in 
 England or "Wales, that it would be for the convenience 
 Change of and advantage of the public that any such fair should 
 fair days. -^^ held in each year on some day or days other than 
 that or those on which such fair is used to be held, or 
 on the day or days on which such fair is used to be 
 held and any preceding or subsequent day or days, or 
 on or during a less number of days than those on 
 which such fair is used to be held, it shall be lawful for 
 a secretary of state to order the same to be held ac- 
 cordingly. This Act repeals a former Act on the same 
 subject (»). And by a previous Act, called "The 
 Fairs Act, 1871 " (.r), it is provided (y) that, in case it 
 shall appear to the secretary of state for the home 
 department, upon representation duly made to him by 
 the magistrates of any petty sessional district, within 
 whicli any fair is held, or by the owner of any fair in 
 England or Wales, that it would bo for the convenience 
 and advantage of the public that any such fair shall be 
 
 (.«) Stat. 3G k 37 Vict. c. 37. (.r) Stat. 34 & 35 Vict. o. 12. 
 
 {t) Sect. G. (y) Sect. 3. 
 
 (") Stat. 31 (S: 32 Vift. c. ol.
 
 TOLLS. 299 
 
 abolished, it shall be lawful for the secretary of state Power to 
 for the home department, with the previous consent ^^o^^^^^^™- 
 in ■writing of the owner for the time being of such fair, 
 or of the tolls or dues payable in respect thereof, to 
 order that such fair shall be abolished accordingly. 
 But notice of such representation, and of the time for 
 taking it into consideration, shall be published as pro- 
 vided by the Act. And, by a further section {z), so 
 soon as any such order shall have been made by the 
 secretary of state for the home department, notice Notice, 
 thereof is to be published in the London Gazette, and 
 in some one newspaper of the county, city or borough 
 in which such fair is usually held, or, if there be no 
 newspaper published therein, then in the newspaper of 
 some county adjoining or near thereto ; and thereupon 
 such fair shall be abolished. 
 
 The right of toll may also be in respect of a way. Tolls. 
 Tolls of this kind are divided into toll traverse and toll 
 thorough. To/l fravcne is properly where a man pays Toll traverse. 
 a certain toll for passing over the soil of another man, 
 in a way which is not a high street. Toll thorougli is Toll 
 properly where a toll is taken of men for passing °^'°"&"- 
 through a vill in the high street, or for passing over a 
 public ferry or a public bridge. A good deal of the 
 law with respect to tolls will be found in the case of 
 Laurence v. Hitch, in the Exchequer Chamber (a). In Zaw> 
 that case a toll of 1.9. for every cartload of vegetables "^'''''^ 
 exposed for sale in a street within the town and manor 
 of Cheltenham, and for which no toll had been paid in 
 the market, was claimed by the lord of the manor, 
 under a grant in the reign of King Henry III., con- 
 firmed by King Charles I. in a grant of the manor in 
 fee to persons under whom the plaintiff claimed, with 
 all the tolls due by reason of markets, &c. within the 
 lordship. One objection made to the toll was on the 
 
 (::) Sect. 4. {") L. R., 3 Q. B. 521. 
 
 eiK't! V.
 
 000 rin:scKii"ii\ K rights. 
 
 ground that it was rank, that is to say, that, according 
 to the value of money in early days, it was impossible 
 that so large a sum as 1.9. should have been ever 
 sanctioned as a moderate and proper toll to be paid for 
 
 Rankness. a mere cartload of vegetables. And this doctrine of 
 rankness is well known to the law ; and, before tithes 
 were commuted, a modus or composition which had been 
 long paid in lieu of tithes, was often defeated on the 
 ground of rankucsx ; that is, that it could not have 
 existed from time immemorial, because, in ancient 
 times, the sum paid would, according to the then value 
 of money, have been too large a sum for the tithe for 
 which it was substituted. And in a case about the 
 
 Bnjant v. samc time in the Exchequer Chamber, namely, JJri/aiif 
 
 V. Foot {h), in which the judges differed very much in 
 opinion, the question was whether a fee of 13.s'. on 
 every marriage, namely, 10s. to the rector, and 3.s'. to 
 the clerk, was not rank, as too large a sum to have been 
 paid in the times of Richard I., when, as you may 
 remember, legal memory began (c). However, in the 
 case of Laurence v. Jlifch {d), the Court seemed dis- 
 posed to think that Is. for every cartload of A'egetables 
 was not void for rankness ; but that, if it were so, the 
 Coiu't might dispense with the claim by prescription, 
 and presume a lawful origin of the toll by means of 
 a contemporaneous dedication of the streets to the 
 public, and a reservation of this toll on the part of the 
 Crown — such dedication and reservation having been 
 made within the time of legal memory. It was also 
 held that the claim might be sustained as a claim to a 
 reasonable toll only, the amount of which might vary 
 from time to time Avith the value of mone}'. 
 
 (b) L. R, 3 Q. B. 497. {if) Ante, p. 299. 
 
 {c) Ante, p. 4.
 
 { 3U1 ) 
 
 LECTURE XXI. 
 
 I NOW come to cousider the law of Easonenfx. An Easements, 
 easement is defined in Mr. Gale's Treatise on Ease- 
 ments [a), as a privilege without profit, which the 
 owner of one neighbouring tenement hath of another, 
 existing in respect of their several tenements, by which 
 the servient OA\Tier is obliged to sufi"er or not to do 
 something on his own land for the advantage of the 
 dominant owner. Easements are therefore incorporeal 
 rights, imposed upon corporeal property ; but, unlike 
 most of the rights which we have been hitherto con- 
 sidering, they do not confer any right to a participation 
 in the profits arising from the servient tenement. In 
 order to constitute an easement, there must be a 
 dominant tenement on the one hand, and a servient 
 tenement on the other hand. In the case of Rangeley 
 V. Midland Rdihray Company {b), the present Lord 
 Chancellor remarked that " there can be no easement 
 properly so called imless there be both a servient and a 
 dominant tenement. There can be no such thing No easement 
 according to our law, or according to the civil law, as ^^ s^^'^^^- 
 what I may term an easement in gross. An easement 
 must be connected with a dominant tenement." A 
 right of common of pasture, a right of several pasture, 
 a right of mining in common, or an exclusive right of 
 mining, or an exclusive right of sporting, may be given 
 to a person in gross, irrespective of the enjoyment of 
 any tenement. But easements or privileges with re- 
 spect to land, which confer no right to participate in 
 the profits of the land, cannot be granted to a man and 
 his heu'S, irrespective of the enjoyment of any teue- 
 
 {„) Part 1, chap. 1. (i) L. R., 3 ("h. 30(1, 310, 311.
 
 302 PRESCRIPTIVE RIGHTS. 
 
 ment. If tliey are unconnected with tlie enjoyment of 
 Personal any tenement, they are mere personal privileges, and 
 
 they cannot he assigned hy the grantee to any other 
 person. Thus, if I give a man leave to walk across my 
 land, this is a mere privilege, personal to himself, and 
 no one but he can enjoy it. But if I grant to him and 
 his heirs and assigns, owners and occupiers of a neigh- 
 bouring house, a right of way across my land, to and 
 from his house, this is an easement and may be enjoyed 
 at all times by my grantee and by everyone to whom 
 the house may belong or be let. 
 
 Easement An easement, if appendant or appurtenant to land, 
 
 tSe^land^ ^ ° must relate to the land to which it is appendant or 
 appiuienant. This rule is in analogy to the rules with 
 regard io profits a prendre. A right oi profit a prendre, 
 in respect of a tenement, must be for something or 
 other to be consumed upon that tenement (c). So an 
 easement, appendant or appurtenant to a tenement, 
 must relate to that tenement. Thus, if a way is ap- 
 purtenant to a house, and belongs to the house, it must 
 be a right of way to and from that house, and not a 
 right to enjoy a road for other pui'poses than those 
 connected with the house. This was decided in the 
 Aeh-oydy. important case oi Ac]:roijd \. Smith {d). In that case 
 the plaintiff brought an action of trespass against the 
 defendant for using a road ; and the defendant 
 pleaded a conveyance by lease and release made be- 
 tween one Ellis Cunliffe Lister and other persons, by 
 which certain premises were conveyed to one John 
 Smith, his heirs and assigns, and by the deed of release 
 the said Ellis Cunliffe Lister granted to John Smith, 
 his heirs and assigns, that he and they respectively, 
 being owners and occupiers for the time being of the 
 close, pieces or parcels of land thereby released, or any 
 of them, and all persons having occasion to resort 
 
 (c) Ante, pp. 192, 20.';. (,/) 10 C. B. 1G4.
 
 EASEMENTS. 303 
 
 thereto, should have the privilege of passing- and re- 
 passing /o>' all jnirposes in, over and through the road in 
 the plea first mentioned, or in, over and through some 
 other road in the same direction, to be formed by and 
 at the expense of the plaintiff, his heirs or assigns, such 
 other road passing in a manner prescribed by the deed. 
 Here you observe an attempt to give to the owners and 
 occupiers for the time being of the land "conveyed, not 
 only a right to pass and repass over a certain road for 
 the purpose of going to and from the house, which 
 would have been good enough ; but also a right of 
 passing over that road /or all purposes ichafcver, which 
 of course might include a right of passing over the road 
 for the purpose of going to and fro between two totally 
 distinct tenements ; and this, being too wide a purpose, 
 was considered to be illegal. The Court in their judg- 
 ment held [e) that, if the right conferred by the deed 
 set out w^as only to use the road in question for pur- 
 poses connected with the occupation and enjoyment of 
 the land conveyed, it did not justify the acts confessed 
 by the plea. And if the grant were more ample, and 
 extended to using the road for purposes unconnected 
 with the enjoyment of the land, which they thouglit 
 was the true construction of it, it became necessary to 
 decide whether the assignee of the land and appurte- 
 nances would be entitled to it. And they held that the 
 privilege or right in c[uestion did not inhere in the 
 land, did not concern the premises conveyed or the 
 mode of occupying them, and was not appurtenant to 
 them. And they considered that it would be a novel 
 incident annexed to land, that the ow^ner and occupier 
 should, for pui'poses wholly unconnected with that land, 
 and merely because he is owner and occupier, liave a 
 right of road over other land. 
 
 This case has sometimes been considered as having 
 ((-) Page 187.
 
 304 
 
 PRESCRIPTIVE RIGHTS. 
 
 Remarks on 
 Ackroijd v. 
 Smith in 
 Thorpe v. 
 Brumjitt. 
 
 decided more than It appears to have actually done ; 
 but the decision itself is in complete analogy with the 
 decisions with respect to all other prescriptive rights, 
 which, when claimed in respect of a tenement, must be 
 for the use and enjoyment of the tenement in respect of 
 which they are claimed (/). The following remarks on 
 the case of Achroyd v. Smith were made in the case of 
 Thorpe v, Brumfitt {g). Lord Justice James observed, 
 " The case of Ackroyd v. Smith has been misappre- 
 hended. It was there in substance said to the defen- 
 dants, ' In any vicAv of the case you are wrong. If 
 this was a right of way appurtenant to a particular 
 property, it could only be used for purposes connected 
 with that property, and you have been using it for 
 other purjioses. If it was not, then it was a right 
 in gross, and could not be assigned to you.' " Lord 
 Justice Mellish observed (//), that in that case the close 
 to which it was sought to make the way appendant was 
 not at the end of the road. And he quotes the remark 
 of Mr. Justice Cresswell, who said in his judgment, " It 
 is not in the power of a vendor to create any rights not 
 connected with the use or enjoyment of the land and 
 annex them to it ; nor can the owner of land render it 
 subject to a new species of burden, so as to bind it in 
 the hands of an assignee. It would be a novel incident 
 annexed to land that the owner and occupier should, for 
 l^urposes wholly unconnected with that land, and merely 
 because he was owner and occupier, have a right of road 
 over other land." 
 
 Affirmative 
 and negative 
 easementa. 
 
 Easements are divided into affirmative easements 
 and negative easements. On this subject I cite a 
 passage in Gale on Easements (/). "From the civil 
 law may be taken a practically useful division of ease- 
 ments into two principal classes, which ma}'- be termed 
 
 (/) Ante, pp. 192, 205. 
 
 {y) L. R., 8 Ch. 650, Go5, G5] 
 
 [h) Page 657. 
 
 (.) Chap. 2, p. 19, -Ith eJ.
 
 EASEMENTS. 305 
 
 affirmative and negative. Those coming nnder tlio 
 head of affinnatke easements authorize the commission 
 of acts which, in their very inception, are positively in- 
 jurious to another, as a right of way across a neigh- 
 bour's land, or a right to discharge water, every exercise 
 of which rights may be the subject of an action. JVer/rt' 
 fire easements are injmies consequentially only restricting 
 the owner of the soil in the exercise of the natural rights 
 of property, as where he is prevented building on his 
 own land to the obstruction of lights. With respect to 
 this latter class, it is evident that no cause of action can 
 arise from their exercise ; they can be opposed only by 
 an obstruction to their enjoyment." Easements are also Continuous 
 divided into continuous easements and easements which thiiiouT^^" 
 are not continuous. Continuous easements are those of easements. 
 which the enjoyment is or may be continual, without 
 the necessity of any actual interference by man, as a 
 waterspout, or right to light and air. Discontinuous case- 
 ments are those, the enjoyment of which can only be 
 had by the interference of man, as rights of way, or a 
 right to take water, of which I gave an instance in my 
 Second Lecture (/.•) ; referring to the case of liace v. 
 Ward (/), in which it was held that a right to take water 
 from a spring was not ajyrojit djn'endre, but an easement. 
 The enjoyment of such an easement can only be had by 
 man's interference, so that it is one of a discontinuous kind. 
 
 Now easements being prescriptive rights may be 
 gained either by prescription or by grant. And first 
 with regard to the title by prescription. A right to an Title by 
 easement may be gained from enjoyment as of right, P^^'^^^P '°°- 
 and without interruption, from time whereof the 
 memory of man runneth not to the contrary; or it 
 may be gained from enjoyment of a sufficient length to 
 cause the Courts to presume that a grant of it must 
 have been made at some time or another; or it may 
 (A-) Ante, p. 18. {I) 4 El. & Bl. 702. 
 
 w.r. X
 
 Glover. 
 
 80G rKESCRlFTlVE RIGHTS. 
 
 be gcaincd by an enjoyment, either for twenty or forty 
 years, according to the provisions of the Prescription 
 Act {ui), to wliich I shall have to call your attention. 
 
 Immemorial And first, an easement may be gained by immemorial 
 
 '•''^'" ■ enjoyment, from time whereof the memory of man 
 
 runneth not to the contrary. On this point I wish to call 
 
 Aipinki/ V. your attention to the important case of Aij)islcy v. Glover, 
 decided in the first instance by the present Master of 
 the Rolls (;/), and affirmed on appeal by the Lord 
 Justices (o) . In that case it was held that the Prescrip- 
 tion Act of 2 & 3 Will. IV. c. 71, did not take away 
 any of the modes of claiming easements, which existed 
 before its passing. The contest was with regard to 
 ancient lights in a building forming part of an inn ; and 
 the question was, whether the plaintiff had made out 
 his right to the light, in respect of four windows men- 
 tioned in the pleadings. And during the course of the 
 argument it was observed by Lord Justice Mellish, " It 
 is every-day practice to plead, first, enjoyment for 
 twenty years before action ; second, enjoyment for 
 forty years before action ; third, enjoyment from time 
 immemorial ; fourth, a lost grant ; and it has always 
 been understood that a right may be su2:>ported on the 
 third ground, although it may be incapable of being 
 supported imder the first or second. There are no 
 negative words in the statute to take away rights 
 existing independently of it." The enjoyment which 
 the Lord Justice mentions for twenty and forty are the 
 periods mentioned in the Prescription Act ; and you see, 
 he says distinctly the right may be supported on the third 
 ground, that is, on the ground of enjoyment from time 
 immemorial, although it may bo incapable of being 
 supported under the first and second, that is, under the 
 provisions of the Prescription Act. And in delivering 
 judgment his Lordship proceeds as follows (y^). "The 
 
 H Stat. 2 & 3 Will. IV. c. 71. (o) L. E., 10 Cli. 283. 
 
 («) L. n , IS Kcj. oil. Ip) Ta-c 28.').
 
 EASEMENTS. 307 
 
 objectiou that is made to tliem is, that although they 
 have been erected more than twenty years, yet there 
 has been a unity of possession at any rate from the year 
 1849, if not before, up to within a very sliort time before 
 the filing of the bill. In my opinion it is unnecessary 
 to consider whether the plaintiff could have made out 
 his right under the statute 2 & 3 Will. IV. c. 71 ; 
 because I am of opinion that, under the circumstances 
 of the case, the plaintiff has clearly made out a right 
 from time immemorial. The statute 2 & 3 Will. IV. 
 c. 71 has not, as I apprehend, taken away any of the 
 modes of claiming easements which existed before this 
 statute. Indeed, as the statute requires the twenty 
 years or forty years (as the case maybe), the enjoyment 
 during which confers a right, to be the twenty years or 
 forty years next immediately before some suit or action 
 is brought with respect to the easement, there would be 
 a variety of valuable easements which would be alto- 
 gether destroyed, if a plaintiff was not entitled to resort 
 to the proof which he could have resorted to before the 
 Act passed. Now in this case there is an old man 
 above eighty years old, Avho says, that he recollects these 
 windows all his life ; that before the cottages, in which 
 the windows in question are, became part of the inn to 
 which they now belong, they were occupied as separate 
 cottages ; that he was born in one of them ; and that 
 the windows were there as far back as he knew the 
 cottages, subject to this, that two of the windows had 
 been considerably enlarged in the year 1846. It also 
 appears that the cottages were in existence in the year 
 1808; for in a deed dated in that year they are convoyed 
 as being then in existence. I quite agree with tlie Master 
 of the Eolls that it must, of course, be inferred that 
 the windows were in existence then. Beyond that, wo 
 know nothing about them, and therefore the proof is 
 that the cottages, with the lights in thom, have existed 
 as far back as living memory goes, and wc have no 
 
 X 2
 
 308 rREscRirxivE rights. 
 
 evidence as to wlieu tliey were built ; and althougli 
 there is clear evidence of unity of possession in the year 
 1849, and there is a question whether that unity of pos- 
 session may not have commenced between the years 
 1830 and 1840, still it is clear that there were a great 
 number of years before dming which there was no 
 unity of possession, and there is no evidence that there 
 ever was any unity of title at all. Under those circum- 
 stances there is, I apprehend, clear evidence of a right 
 to the light from time immemorial, which is not in any 
 way taken away by the statute. I am, therefore, of 
 opinion that the plaintiff has proved his right to these 
 four lights." It must, however, always be remembered 
 that a prescriptive right, claimed by virtue of imme- 
 morial user, may always be destroyed by proof on the 
 other side that there was any time, subsequent to the 
 commencement of legal memory, namely, the first year 
 of King Richard I., at which the right did not exist. 
 For if tlie right began within legal memory, it cannot 
 have been used from time immemorial (q) . 
 
 Lost grant. The next mode of proving a title is, by such a measure 
 
 of enjoyment as would warrant the Court to direct tlio 
 jury to presume that there must have been a grant of 
 the easement, which was lost. One of the cases with 
 respect to a lost grant most frequently referred to, is 
 that of Coiclam v. Slack (r), which I mentioned in a 
 former Lecture (s). In these cases, as is mentioned by 
 Mr. Taylor in his Law of Evidence (/), it seems now to 
 be finally settled that juries in such cases should not be 
 required to find, as a fact, that a deed of grant has been 
 actually executed, but that, without believing any grant 
 to have been made, they may often, under the instruc- 
 tion of the Court, presume its existence, for the simple 
 purpose of quieting possession. But the presimiption 
 of the grant can only arise when the person against 
 
 (7) Ante, p. 5. (.s) Aiifr, p. 170. 
 
 (;•) l.'j East, 108. (/) Vul. 1, p. IIG, Cth oil.
 
 EASEMENTS. 309 
 
 wliom the right is claimed might have interrupted or 
 prevented the user relied on. 
 
 Another, and the most usual mode of acquiring an 
 casement, is by enjoyment for the period mentioned 
 in the Prescription Act (u), to which I referred in The Preecrip- 
 former Lectures, when speaking of rights of common 
 and other prqfiis a prendre {x) . The two periods men- 
 tioned in the Act in the first section, with respect to 
 these rights, are, as you may remember, respectively 
 thirty and sixty years {//) ; but with regard to rights 
 of way, and other easements, the periods are different. 
 For it is enacted in the second section that no claim, Sect. 2. 
 which may be lawfully made at the common law, by 
 custom, prescription, or grant, to any way or other 
 easement, or to any watercourse or the use of any water, 
 to be enjoyed or derived upon, over or from any land 
 or water of our said lord the king, his heirs or suc- 
 cessors, or being parcel of the duchy of Lancaster or 
 of the duchy of Cornwall, or being the property of any 
 ecclesiastical or lay person, or body corporate, when 
 such way or other matter as herein last before men- 
 tioned, shall have been actually enjoyed by any person 
 claiming right thereto, without interruption, for the full 
 period of ticentij years, shall be defeated or destroyed by Twenty years' 
 showing only that such way or other matter was first ^^•1°^™'^^ • 
 enjoyed at any time prior to such period of twenty 
 years ; but nevertheless such claim may be defeated in 
 any other way by which the same is now liable to bo 
 defeated ; and where such way or other matter as herein 
 last before mentioned shall have been so enjoyed as 
 aforesaid, for the full period oi fortij years, the right Forty years' 
 thereto shall be deemed absolute and indefeasible, unless ^^•1°^'^'^^ ■ 
 it shall appear that the same was enjoyed by some 
 consent or agreement expressly given or made for that 
 
 (u) Stat. 2 & 3 Wm. IV. c. 71. {y) Anlc, p. 173. 
 
 [x) Ante, p. 173.
 
 310 PRESCRIPTIVE RIGHTS. 
 
 purpose by deed or writing. Here you observe tliat 
 the claim must be one which, may be lawfully made ; 
 and if any such claim has been actually enjoyed by a 
 person claiming right thereto, without interruption, for 
 twenty years, it cannot now be defeated merely by show- 
 ing that it was first enjoyed at some time within legal 
 memory. And a similar enjoyment for forty years 
 makes the right absolute and indefeasible, unless some 
 express consent or agreement is shown to have been 
 given or made by deed or writing. 
 
 There is a separate provision in the third section 
 with respect to the access and use of light, to which I 
 hope to call your attention in a future Lecture, when 
 speaking of that subject. 
 
 Defeat of You will obscrvo that a mere twenty years' enjoy- 
 
 bv u-entv° ment may be defeated in any other way by which the 
 years' cujoj- same was, at the passing of the Act, liable to be 
 defeated. Instances of the way in which such a claim 
 might have been defeated at the time of the passing of 
 Baron Parke the Act, are given by Mr. Baron Parke in his judgment 
 TTdi/i'fr.' ^ i^ the case of BrigJd v. Walhcr {z) ; he remarks (r^) : 
 "Again, such claim may be defeated in any other way 
 by which the same is now liable to be defeated ; that 
 is, by the same means by which a similar claim, arising 
 by custom, prescription or grant would now be de- 
 feasible : and therefore it may be answered by proof of 
 a grant, or of a licence, written or parol, for a limited 
 period ; comprising the whole or part of the twenty 
 years, or of the absence or ignorance of the parties in- 
 terested in opposing the claim, and their agents, during 
 the whole time that it was exercised." And, accord- 
 ingly, in that case of Bright v. Walhcr, it was held that, 
 where a way had been used adversely and under a claim 
 of right for more than twenty years, over land which, 
 
 (r) 1 Cro. Men. & Rose. 211. [,,) Tag-e 219.
 
 EASEMENTS. 311 
 
 during the whole of that period, was in the possession 
 of a lessee for lives under the Bishop of Worcester, that 
 this user gave no right as against the Bishop, nor did it 
 give any title as against the lessees. For, before tho 
 passing of the Act, user as of right for twenty years, 
 when the land during the whole period was in tho pos- 
 session of a lessee for life, was not sufficient to cause a 
 presumption of immemorial user as against the owner 
 of the fee simple. Indeed, the case of a tenancy for 
 life is distinctly provided for in the 7th section of the 
 Act to which I have already called youi' attention {b) . 
 
 The provisions of the 4th, 5th, Gth, and 7th sections, 
 which apply to claims of rights of common and profits 
 a prendre, apply also to claims to ways or other ease- 
 ments, and to w^atercourses and the use of water. 
 These provisions I have already mentioned (f) . With Meauiuy of 
 regard to the Gth section, it is observed by Lord Chan- y '^ . , -^ 
 cellor Westbury in the case of Hanmer v. Chance [d), bury iu 
 that the meaning seems to be, that no presumption or Y'"'"""' ""'• 
 inference in support of the claim shall be derived from 
 the bare fact of user or enjoyment for less than the pre- 
 scribed number of years ; but where there are other 
 circumstances in addition, the statute does not take 
 away, from the fact of enjoyment for a shorter period, 
 its natural weight as evidence, so as to preclude a jury 
 from taking it, along with other circumstances, into 
 consideration as evidence of a grant. 
 
 The 8th section has no application to claims of rights Sect. 8. 
 of common or o^qv profits a prendre. It provides, that 
 "when any land or water, upon, over or from which any 
 such way or other convenient watercourse (which words 
 are supposed to be a misprint for other easement or 
 watercoiu'se,) or use of water shall have been or shall be 
 
 {b) Ante, p. 175. {'J) i Dc Joues & Smith, G26, 
 
 (r) Ante, pp. 174, 17'3. G31.
 
 312 PRESCRirTIVE RIGHTS. 
 
 enjoyed or derived, hatli been or sliall be lield under or 
 by virtue of any term of life or any term of years, ex- 
 ceeding three years from the granting thereof, the time 
 of the enjoyment, of any such way or other matter as 
 therein last before mentioned, during the continuance 
 of such term, shall be excluded in the computation of 
 the said period of forty years, in case the claim shall, 
 ■within three years next after the end or sooner deter- 
 mination of such term, be resisted by any person entitled 
 to any reversion expectant on the determination thereof." 
 So that in these cases an enjoyment, even of forty 
 years, does not give an absolute and indefeasible title ; 
 for if the servient tenement is held for the life of any 
 person, or for any term of years exceeding three from 
 the time of granting thereof, the life of the tenant for 
 life, or the tenn of years dming which the property 
 is held, is excluded in the computation of the period of 
 forty years. But this exception only applies in case the 
 claim is resisted within three years next after the end or 
 sooner determination of the life estate, or the term of 
 years subsisting in the servient tenement. 
 
 In the case of Brigltt v. Walker, to which I have 
 
 just referred ie), there are some remarks with regard to 
 
 the construction of the 8th section of the statute, which 
 
 have been dissented from and corrected in the more 
 
 TaVcY. recent case of Palk v. Skinner (/). In BrigJit v. Walker ^ 
 
 Baron Parke considered that the 8th section applied not 
 
 only to the term of forty years appointed by the Act, 
 
 Section 8 does but also to the term of twenty years. This, however, 
 
 the peno^i of '^vas denied in the case of Palk v. Skinner, in which the 
 
 twenty years, facts were as follows : — The way had been used for 
 
 twenty years. The land over wliicli the right of way 
 
 was claimed had been demised in 1831 for a term of 
 
 fourteen years ; and again in 1838 by a fresh lease for 
 
 a term of eight years, ending in 1846. No resistance 
 
 (r) Anlc, p. 310. (/) IS Q. B. 563.
 
 EASEMENTS. 313 
 
 had been made to the user at any time during or after 
 the determination of the leases until the 1st of June, 
 1851, when the defendant obstructed the way. And 
 it was held that by this user a right of way had been 
 acquired, as against the owner of the^fee. Lord Camp- 
 bell remarks (^r), "I am of opinion that the plaintiff 
 is entitled to our judgment, I think that there was 
 evidence from which the jury might find that he was 
 entitled to claim a right of way under sect. 2 of the 
 Act 2 & 3 Will. IV. c. 71. I do not say that the 
 evidence was conclusive ; but it was sufficient to justify 
 their finding ; and* that finding ought not to bo dis- 
 tm'bed unless the plaintiff's claim is defeated by sect. 8. 
 I am of opinion that it is not. The period during 
 which the land, over which the right of way is claimed, 
 has been leased for a term exceeding three years is not, 
 under that section, to be excluded from the computation 
 of a twenty years' enjoyment ; though it is no doubt to 
 be excluded from the computation of an enjoyment 
 for forty years. Sect. 7 excludes certain times, includ- 
 ing that of a tenancy for life, but not that of a tenancy 
 for years, from the computation of the periods therein- 
 before mentioned ; and a twenty years' enjoyment is 
 one of those periods. But sect. 8 provides for the 
 exclusion of certain other times, among which is a 
 tenancy of more than three years, not from the periods 
 thereinbefore mentioned, but from one particular period 
 only, expressly mentioned, namely, that of an enjoy- 
 ment for forty years. It is clear, therefore, that it 
 was not intended to exclude them from the computa- 
 tion of an enjoyment for twenty years. Grreat reliance 
 was placed upon Bright v. Walker ; but on examination 
 into that case, it appears that there was no necessity 
 for the Court to give any opinion as to the effect of 
 sect. 8, for the right of way there claimed was clearly 
 destroyed under sect. 7 by reason of a tenancy for 
 (^) Page 573.
 
 314 PRESCRIPTIVE RIGHTS. 
 
 life." And Mr. Justice Erie remarked (//), "If this 
 case had arisen before the statute, there would have 
 been good evidence to go to the jury of a user as of 
 right for twenty years, notwithstanding the existence 
 of the tenancy for years. And the question is still to 
 be left to the jury in the same way; for the statute 
 makes no difference in the various modes of defeating 
 the user, except as it provides that it shall not be de- 
 feated by proof of origin at some time prior to the 
 twenty years. The question then arises whether, under 
 sect. 8, the tenancy for years is to be excluded from 
 the computation of twenty years' enjoyment. That 
 section applies expressly to the computation of an en- 
 joyment for forty 3'ears ; and it would be contrary 
 to all rules of construction to hold that it applies also 
 to the computation of an enjoyment for twenty years. 
 The only possible ground for such a conclusion is found 
 in BrujJtt v. Walker. But there the question was as 
 to the exclusion of a tenancy for life, and the Court 
 Avas clearly right in holding that such tenancy must be 
 excluded from the computation of a twenty years' 
 enjoyment. It is so excluded under sect. 7, and I 
 do not see that its exclusion is made more clear by 
 sect. 8. But I do not think the learned judge ever 
 meant to say that a tenancy for years must be excluded 
 from the computation of an enjoyment for twenty years." 
 
 (/() Tagc o'o.
 
 EASEMENTS. 315 
 
 LECTUEE XXII. 
 
 Another modo of acquiring easements is by (jraiit Grant, 
 either express or implied. With regard to an express 
 grant, if clearly made by the owner of the servient 
 tenement to the owner of the dominant tenement his 
 heirs and assigns, owners and occupiers for the time 
 being of the dominant tenement, there is little to be 
 said. But a great many cases, and some of them con- 
 flicting, have arisen as to the grant of easements by 
 mere general icords, as they are called, and also as to an General 
 implied grant of easements being made under certain 
 circumstances without any general words. With regard 
 to the use of (jencml words, as they are called, it seems 
 clear that any easement or right whatsoever, whether Easements 
 appendant or appurtenant to land, will, if it be strictly vcyance*af^' 
 appendant or appurtenant, pass by a conveyance of the dominant 
 dominant tenement, without any express mention, and 
 without the use of the words " with the appurtenances ;" 
 although these words no doubt are much better to be 
 used, in order to show clearly the intent that every 
 right appurtenant to the land should pass with it. The 
 conveyance of the principal carries that which is accessory. 
 In the times when writing was not necessary to the 
 conveyance of land, a feoffment of the land carried 
 with it all incorporeal rights, w^hich were appendant or 
 appurtenant to the land; although if any such rights 
 had been conveyed in gross, or apart from anything 
 corporeal, a deed of grant w^ould have been abso- 
 lutely necessary. So in the case of Skull v. Glenisier (a) '^/'"^^ '^■• 
 a demise had been made of land, to which a way led, 
 for a teiin less than three years at a rack rent. Such a 
 
 {a) IC C. B., N. S. 81.
 
 316 
 
 PRESCRIPTIVE RIGHTS. 
 
 demise, you may remember, is excepted out of the 
 Statute of Frauds ijj), wliich requires most other demises 
 to be in writing. And accordingly the demise in the 
 present case had been made by parol. And it was 
 Parol deiiiisc. held that the parol demise carried "with it the right to 
 use the way belonging to the land during the term 
 granted by the parol demise. 
 
 Easement ex- But in somo cases an easement, or other appurtenant 
 tmiy^of pos-"^ right, which formerly belonged to land, may have been 
 session. extinguished by unity of possession. Thus, there may 
 
 have been a right of way to field A. o^^er field 13. 
 whilst the ownership of the fields was different. After- 
 wards the two fields may have belonged to the same 
 owner; by which the right of way to field A. over field B. 
 Eegrant by would be extinguished. If then the owner of the 
 words! ^^'^ closes should convey field A., together with all 
 
 easements to the same belonging, or therewith usually 
 held or enjoyed, the way, having formerly existed as an 
 easement, and having been, up to the date of the con- 
 veyance, actually enjoj^ed in practice, (not of course as 
 an easement, which a man cannot have in his own soil, 
 but as what may be called a qua^i casoiieiif,) would pass 
 as an easement enjoyed with the land. A grant of 
 field A. with the easements usually held therewith, 
 would pass the right of way, as, in point of law, a new 
 easement, created by the deed, and granted, by means 
 of the above general words, to the grantee of A. his 
 heirs and assigns, and to be for ever thereafter enjoyed 
 by him and them over the field B. as such easement 
 was anciently enjoyed before the ownership of the two 
 closes had destroyed it. 
 
 But, more than this, it is now hold that it is not 
 absolutely necessary that the easement in question 
 should ever have existed as a legal casement, enjoyed 
 (/>) Stat. 29 Car. II. c. 3.
 
 Kelson. 
 
 EASEMENTS. 317 
 
 in respect of one property over another propert}'. For Creation of 
 if the two properties have all along been enjoyed by by general 
 the same owner, and he and liis servants have been '^'^'°^^^- 
 accustomed to use a watercoiu'se, or a way, from one 
 part of his property to tlie other, for tlie quasi benefit 
 of that other property, either in the ease of a water- 
 course, for aiding its fertility, or in the case of a way, 
 for more convenient access to it ; and afterwards he 
 convej's to a stranger that part of the property which 
 may be called the quasi dominant tenement, namely, 
 that part of the property which has enjoyed this, which 
 might have been a right had the ownership been dif- 
 ferent ; then he creates, if he use such general words as 
 I have mentioned, a new easement of a similar kind, 
 and conveys the same to the grantee. Thus in the 
 case of Watts v. Kehon (c), it appeared that in the year Watts v. 
 1860 the o"v\Tier of properties A. and B. made a drain 
 from a tank on property B. to a lower tank on the 
 same property, and laid pipes from the lower tank to 
 cattle sheds on property A., for the purpose of supply- 
 ing them with water ; and they were so supplied till 
 1863, when the owner sold property A. to the plaintiff, 
 with all waters, watercourses, &c. to the same heredita- 
 ments and premises belonging or appertaining, or with 
 the same or any part thereof held, used, enjoyed, or 
 reputed as part thereof, or as appurtenant thereto. The 
 plaintiff had the use of the water after his conveyance 
 until the defendant, a subsequent purchaser of property 
 B., stopped it. It was held that the general words 
 were sufficient to pass the right to the flow of water. 
 It was also held (but this is a point I am coming to 
 presently) that the plaintiff would have been entitled 
 to the use of the water, without any express words of 
 grant. Here you see the easement or right to water 
 was not created whilst the properties were in distinct 
 o^NTiership, but arose from the act of the owner of both 
 (c) L. R., C Ch. 166.
 
 318 PRESCRIPTIVE RIGHTS. 
 
 properties, while tliey were both in his own possession. 
 KiiijY.Oxki/. Another case on tlie same subject is that of Kay v. 
 Oxk'i/ {(I) . In that case the defendant Oxley was the 
 owner in fee of a dwelling house, with a cottage and 
 stable belonging to it, called " Roseville ; " and he was 
 also owner in fee of an adjoining farmstead and farm, 
 having a private road, which led from a high road to 
 the farm buildings, and passed close by one side of 
 the stable of Roseville. By indenture of the 1st of 
 May, 1860, the defendant demised Roseville to one 
 Hudson for ten years. Hudson entered on the pre- 
 mises, and built over the stable a hay loft, with two 
 openings towards the private farm road, having first 
 obtained permission from the defendant to do so, and 
 also permission from the defendant and the then tenant 
 of the farm, to use the farm road for the purpose of 
 bringing hay, straw, &c. to the loft, that being the 
 only access to the openings in the loft. Hudson, and 
 the sub-tenants occupying Eoseville, continued during 
 the term to use the road up to May, 1870. At that 
 time the plaintiff agreed to purchase Eoseville of the 
 defendant ; and, by a deed of the 2nd of August, 1870, 
 the defendant conveyed Eoseville to the plaintiff in fee, 
 with the following general words, amongst others, " to- 
 gether with all ways, and rights of way, easements, 
 and appm-tenances to the said dwelling-house, cottage, 
 and hereditaments, or any of them appertaining, or 
 with the same or any of them now or heretofore de- 
 mised, occupied or enjoyed, or reputed as part or parcel 
 of them, or any of them, or appurtenant thereto." It 
 was strongly contended that there never had been any 
 right of way existing over this private road in respect 
 of Eoseville. But the Court held that the right to use 
 the farm road for the purposes of the loft passed to the 
 plaintilf under the above words. The Court in that 
 case takes notice of and comments upon other decisions 
 
 {>/) L. Pv., 10 Q. B. 300.
 
 EASEMENTS. 319 
 
 on similar points, vnih. wliicli I think it scarcely neces- 
 sary to trouble you ; as these two cases appear to me to 
 have established the principle that a c^uasi easement 
 actually enjoyed at the time of the conveyance may be 
 newly created as an actual easement by the grant of 
 easements usually enjoyed with the premises, or reputed 
 as part of them, or appiu'tenant thereto. 
 
 In some cases, however, an easement will pass by Implied 
 implication, by conveyance of property, without any '^ ' 
 grant for that purpose. This arises in the case of an Easement 
 
 , 1 . -1 . IP -I 1 necessary and 
 
 easement, which is an easement ot necessity and a continuous, 
 continuous casement, as distinguished from a right of 
 way or other easement, which is not continuous, but 
 which requires to be exercised from time to time. It 
 was said by Chief Justice Erie in the case of Polden v. Cl'ief Justice 
 Bastard (e), in a passage which has been often quoted v. Bastard. 
 and relied upon, " There is a distinction between ease- 
 ments, such as a right of way or easement used from 
 time to time, and easements of necessity or continuous 
 easements. The cases recognize this distinction, and 
 it is clear law that, upon a severance of tenements, 
 easements used as of necessity, or in their nature con- 
 tinuous, will pass by implication of law without any 
 words of grant; but with regard to easements which are 
 used from time to time only, they do not pass, unless 
 the owner, by appropriate language, shows an intention 
 that they should pass." Such an implication may arise 
 upon the grant of part of a tenement, when there will 
 pass to the grantee all those continuous and apparent 
 easements over the other part of the tenement, which 
 are necessary to the enjoyment of the part granted and 
 have been hitherto used therewith (./). It may also 
 arise in the case of a devise to different persons of 
 tenements previously in the ownership of the same 
 
 (,) L. E., 1 Q. B. 156, IGl. (/) fFhccldon v. Btnrovs, L. 
 
 R., 12 Ch. I). 31.
 
 II arrow.' 
 
 320 PRESCRIPTIVE RIGHTS. 
 
 person (g). Moreover, upon a sale af o)ic and tlte same 
 time to different persons of tenements belonging to the 
 same vendor, it has been held that necessary and con- 
 tinuous easements, to be enjoyed in right of one of the 
 tenements so sold, over another of them, may pass by 
 implication {h). But although, as we have seen, a 
 grant of easements for the benefit of a grantee may be 
 implied, yet, as a general rule, upon a severance of 
 tenements there is no corresponding implication in 
 favour of the grantor of a rcserirtfion of continuous and 
 apparent easements to be exercised in right of a tene- 
 ment retained by him over a tenement granted. This 
 Whecidon v. was laid down in the recent case of Whecldon v. Buv- 
 roics (?), where the Court dissented from the principle 
 expressed in a previous case of P>/cr y. Carter (/,■). In the 
 case of Ulieeldon v. Burroics, a workshop and an ad- 
 joining piece of land belonging to the same owner were 
 put up for sale by auction. The workshop was not then 
 sold, but the piece of land was sold, and was soon 
 afterwards conveyed to the purchaser, A month after 
 this the vendor agreed to sell the workshop to another 
 person, and in due time conveyed it to him. The 
 workshop had windows overlooking and receiving their 
 light from the piece of land first sold. And it was 
 held by Vice-Chancellor Bacon, and afterwards by the 
 Court of Appeal, that, as the vendor had not when 
 he conveyed the piece of land reserved the right of 
 access of light to the windows, no such right passed to 
 the purchaser of the workshop, and that the purchaser 
 of the piece of land could build so as to obstruct the 
 windows of the workshop ; and that, whatever might 
 
 {(j) Barnes v. Loach, L. R., 4 Loach, L. R., 4 Q. B. D. 494. 
 Q. B. D. 494; see also iW>-60« v. (i) L. R., 12 Ch. D. 31; see 
 
 Spencer, 3 B. & S. 7G1. also Ellis v. Manchester Carriage 
 
 (A) Compton Y.Jikhards, 1 Price, Co., L. R., 2 C. P. D. 13. 
 27 ; Sivanshorotigh v. Coventry, 9 (/.) 1 H. & N. 916. 
 
 Bing. 30.5 ; see also Barnes v. 
 
 I
 
 EASEMENTS. 321 
 
 have been tlie case liad both lots been sold at the same 
 sale by auction, there was, under the circumstances, no 
 implied reservation of any right over the piece of land 
 first sold. Of the law with regard to the access of light, 
 I hoj)e to speak in a subsequent Lectm-e (/). 
 
 Lord Justice Thesiger, in a judgment which contains 
 a critical examination of all the authorities, states the 
 law of the implication of easements as follows (;«) : "We 
 have had a considerable number of cases cited to us, and 
 out of them I think that two propositions may be 
 stated as what I may call the general rules governing 
 cases of this kind. The first of these rules is, that on 
 the grant by the owner of a tenement of part of that 
 tenement as it is then used and enjoyed, there will pass 
 to the grantee all those continuous and apparent ease- 
 ments (by which of course I mean quasi easements), or, 
 in other words, all those easements which are necessary 
 to the reasonable enjoyment of the property granted, 
 and which have been and are at the time of the grant 
 used by the owners of the entirety for the benefit of the 
 part granted. The second proposition is that, if the 
 grantor intends to reserve any right over the tenement 
 granted, it is his duty to reserve it expressly in the 
 grant. Those are the general rules governing cases of 
 this kind, but the second of those rules is subject to 
 certain exceptions. One of these exceptions is the well- 
 known exception which attaches to cases of what are 
 called ways of necessity ; and I do not dispute for a 
 moment that there may be, and probably are, certain 
 other exceptions to which I shall refer before I close my 
 observations upon this case. Both of the general rules 
 which I have mentioned are founded on a maxim which 
 is as well established by authority as it is consonant 
 
 (0 Post, Lecture XXIV. (;;;) L. E., 12 Ch. D. 49. 
 
 w.r. Y
 
 322 
 
 PRESCRIPTIVE UIGHTS. 
 
 Exceptions to 
 rule. 
 
 to reason and common sense, viz., that a grantor shall 
 not derogate from his grant." 
 
 The nature of the exceptions to the rule mentioned 
 by the Lord Justice was discussed by him in a sub- 
 sequent part of his judgment {ii), and also by Yice- 
 Chancellor Bacon in delivering the judgment of the 
 Court below (o). The following appear to be the 
 grounds of exception : — the necessity of the case, as in 
 the instance of a way of necessity ( p) ; the intention of 
 the parties, upon which depends the rule of the impli- 
 cation of easements, upon a sale at one and the same 
 time to different persons of tenements previously 
 belonging to the same vendor {q) ; or mutual benefit in 
 cases where reciprocal easements may be implied, which 
 may be illustrated by the implication of reciprocal rights 
 of support in the case of houses built together (r). It 
 thus appears, that if, upon the alienation of a piece of 
 land, the owner should desire to reserve to himself any 
 easements over it, all the easements to be reserved 
 should be fully and clearly defined in the deed of con- 
 veyance. 
 
 Way of 
 necessity. 
 
 Necessary 
 repairs. 
 
 An easement such as a way may, under certain 
 circumstances, be erected by a mere conveyance of 
 land. Thus if I grant a person a piece of land in the 
 middle of my field, he has, by implication of law, a 
 7(rii/ qfiieccssif// over my land for tlie purpose of getting 
 at it, otherwise the grant would be of no avail (-s). 
 And, under the grant of any easement, that which is 
 necessary for the enjoyment of the easement passes by 
 implication. Thus, under the grant of a drain, there 
 
 (/;) 12 Ch. D. 57—60. 
 
 (o) 12 Ch. D. 44. 
 
 {p) Fltviington v. Galland, 9 Ex. 
 1; Davies v. Svar, L. K., 7 Eq. 
 427. 
 
 {q) Ante, p. 320. 
 
 (r) Richards v. Rose, 9 Ex. 218. 
 Sue also Loi'd Justice Tliesiger's 
 explanation of Fyer v. Carter, 1 
 H. & N. 916, at 12 Ch. D. 59. 
 
 (.v) 2 BI. Com. 36.
 
 EASEMENTS. 323 
 
 passes, by implication of law, a riglit to enter and 
 repair the drain, in case at any time it should get out 
 of order (f) . 
 
 If an easement be not necessary and continuous it will Easement not 
 not be created by the conveyance of the land, in respect contfnumis^" 
 of which it has been used, but to which it is not strictly "^i]\ ^°* ^^^^ 
 
 "^ without ox- 
 
 appendant or appurtenant, without the use of some press grant, 
 general words comprising " easements therewith usually 
 held or enjoyed." Thus in the case of Worthiugton v. WortldngtonY. 
 G'nnson (u), certain lands, part lying at Naneby, a hamlet ^''"'^'"'- 
 of Market Bosworth in the county of Leicester, and part 
 lying in the parish of Newbold Vernon, belonged in the 
 year 1822 to the late Sir E. C. Hartopp and Mr. John 
 Pares, each being seised of an undivided moiety. A 
 right of way existed from a farm which was part of this 
 property and situate at Naneby, across certain lands in 
 Newbold Yernon, part of the same farm, to another 
 farm on the same property in Newbold Vernon ; and 
 this right of way had for many years been used by the 
 occupiers of either farm. So that the way, you perceive, 
 was not appendant or appurtenant strictly to either 
 farm ; because the whole belonged in moieties to Sir 
 E. C. Hartopp and Mr. Pares. In the year 1820, a 
 deed of partition was executed between them; and 
 Sir E. 0. Hartopp conveyed his undivided moiety of 
 that part of the property which was in the parish of 
 Newbold Vernon to Mr. Pares ; including, among other 
 farms, so much of the farm lying at Naneby and ' - 
 
 Newbold Vernon as was in Naneby, " with their and 
 every of their rights, members, easements and appur- 
 tenances." Mr. Pares also, by the deed, conveyed 
 his undivided moiety of that part of the property lying 
 in Newbold Vernon to Sir E. 0. Hartopp. The deed 
 
 {() Fomfrct v. Ricroft, 1 Wins. {>() 2 Ellis & Ellis, 6IS; seo 
 
 ^a\xvL&.'i2\,^1Z; Elchard LiforcVs also Bolton x. Bolton, L. R., 11 
 OTse, 11 Rep. ;52a. " Ch. D. 9GS. 
 
 y 2
 
 324 rRESCRlPTlVE RIGHTS. 
 
 coutained no express reservation of tlic right of way to 
 eitlier party. The plaintiff, who was then the occupier, 
 and the previous occupiers, of the farm at Nanehy, used 
 the right of way from 1820 to 1859 ; when it was 
 obstructed by the defendant, the then occupier of the 
 farm in Newbold Yernon. In an action by the plaintiff 
 for such obstruction, it was held that he could not 
 recover, because the right of way did not pass under 
 the deed of partition, not being an apparent and con- 
 tinuous easement necessarily passing upon the severance 
 of the property, as incident to the separate enjoyment 
 of the portion severed. Now if, instead of a right of 
 way, this had been a right of drainage, it is clear, on 
 the authorities I have mentioned, that it would have 
 passed, being a necessary and continuous easement. It 
 seems also clear that if the deed of partition, in addition 
 to the words "with their and every of their rights, 
 members, easements and appiu'tenances," had contained 
 a grant of ways or easements " therewith usually held 
 or enjoyed," that the way would have passed as a new 
 creation of a right of way, analogous to the quasi right, 
 which had, previously to the deed of partition, been 
 enjoyed by the occupiers of the two farms. 
 
 Ways. I now proceed to consider a few points respecting the 
 
 law of ways. I do not propose to consider public rights 
 of way, as they are not, properly speaking, easements. 
 A way may be either a footway, or a bridleway, or a drift- 
 way for cattle, or a right of way with carts and carriages 
 for agricultural purposes, or for mining pm'poses, or for 
 all purposes whatever ; indeed it is difficult to say how 
 many kinds of ways there may be. On this subject I 
 may cite a passage from Coke upon Littleton {x), in 
 which he divides ways into three lands. He says, 
 
 The different " there be tlirco kind of ways whereof you shall read in 
 Mays ^^^ ancient books. First, a footway, which is called iter, 
 
 (.»•) Co. Litt. 5G a.
 
 EASEMENTS. 325 
 
 quod est jKS eundi rel anihulandi Jwmhm ; and this was 
 the first way. The second is a footway and horse-way, 
 which is called actus, ah agendo ; and this vulgarly is 
 called paclxc oxi^j^rime icay, because it is both a foot- 
 way, which was the first or 2)>'i>i>c urn/, and ajmckc or 
 drift icay also. The third is via or aditus, which contains 
 the other two, and also a cartway, &c., for this is Jus 
 eundi, vehendi et ■vehicuhun et jumentum ducendi ; and 
 this is two-fold, viz. regia via, the king's highway for all 
 men, et communis strata, belonging to a city or town, or 
 between neighboiu'S and neighbours. This is called in 
 our books chimin, being a French word for a way, 
 whereof cometh cJiiminage, cliiminagium or chininiagium^ 
 which signifieth a toll due by custom for having a way 
 through a forest ; and in ancient records it is sometime 
 also called pcdagium.^^ 
 
 A right to one kind of way, gained by prescription A way can 
 from long enjoyment, or by an enjoyment under the f^J-^il^jf ^^j:/ 
 Prescription Act {y), or acquired by grant, does not pose for which 
 authorize the use of the way for any more extensive quired, 
 purpose than that for which it has been acquired or 
 granted. Thus in the case of Wimbledon and Putney IF'mbMon 
 Commons Conservators v. Dixon (s), it was held that the "commomCon- 
 immemorial user of a right of way for all purposes for ^e>jctors v. 
 which a road was wanted in the then condition of the 
 property, does not establish a right of way for all 
 purposes, in an altered condition of the property ; where 
 that would impose a greater biu'den on the servient 
 tenement. It was also held that, where a road had been 
 immemorially used to a farm, not only for agricultural 
 purposes, but, in certain instances, for carrying building- 
 materials to enlarge the farm-house, and rebuilding a 
 cottage on the farm, and for carting away sand and 
 gravel dug out of the farm, that this did not establish a 
 right of way for carting the materials required for 
 
 (y) Stat. 2 & o "Will. TV. c. 71. (;) L. R., 1 Ch. D. ;3G2.
 
 326 
 
 rRESCRlPTlVE RIGHTS. 
 
 BradbuDi v. 
 Morris. 
 
 building a number of new houses on the land. The 
 principle of cases of this kind of course is, that imme- 
 morial user implies a grant for the purpose for wHch 
 the road has been immemorially used ; and such a grant 
 by no means necessarily includes a right to use the road 
 for other purposes, which would impose upon the 
 servient tenement a greater burden than was already 
 laid upon it. So in the case of Bradbnni v. Morn's, in 
 the Court of Appeal (n) , it was held that the user for 
 twenty years of a way to a field, used only for agri- 
 cultural purposes, does not give a right of way for 
 mineral pm-poses. 
 
 Divisiou of 
 
 cloniinaut 
 
 toncmcut. 
 
 Nvuromiii v. 
 
 Co H hull. 
 
 When riylit 
 of way ac- 
 qiiirud for all 
 imrposes. 
 
 If, however, the dominant tenement should be divided 
 into more tenements than one, a right of way granted 
 to the owners and occupiers for the time being of the 
 dominant tenement, gives a right of way to the owner 
 and occupier for the time being of every part of the 
 severed lands. This was decided in the recent case of 
 Ncu-co)nc}i V. Coiikoii, in the Court of Appeal (J). 
 Another question decided in this case was as to the 
 extent of a right of way, granted by an award made in 
 17 GO, under an Inclosm'e Act. It awarded that the 
 owner and owners for the time being of the lands 
 thereby allotted should for ever thereafter have a way, 
 right, and liberty of passage, for themselves and their 
 respective tenants and farmers, of the said lands, as well 
 on foot as on horseback, as with carts and carriages, and 
 to lead and drive their horses, oxen, and other cattle 
 between certain points therein named, doing as little 
 damage to the soil, corn, grass, or herbage as might be. 
 In case the owners for the time being of the respective 
 allotments should street out the same way leading 
 through their allotments, the same should be made and 
 ever after remain eleven yards broad at the least. 
 
 (a) L. R., 3 Ch. D. 812. 
 (f>) 2.-) W. R. 409; o Ch. ]). 
 133. Sec ahv Finch v. Gnat 
 
 Wc&lcrn llailicaij Co., Ex. Div., 
 28 W. 11. 229.
 
 EASEMENTS. 327 
 
 between the quick sets ; but sucli way was not to bo a 
 right of way for any other person whomsoever. The 
 Laud forming one of the alhjtuionts whicli, at the time 
 of the award, was used only for agricultural purposes, 
 had been severed, and part of it had been recently 
 purchased by the defendant, and by him laid out in 
 building plots ; and he intended to construct a mac- 
 adamized road, for the use of the new houses, over that 
 part of the land in respect of which the right of way 
 had been granted. The plaintiff, who was lord of the 
 manor and the OAvner of the adjoining land, brought an 
 action against the defendant for an injunction. But it 
 was held, aifirming the decision of Vice-Chancellor 
 Malins, that the right was a general right of way, for 
 all reasonable purposes, to all the houses which might 
 be built on the lands in question, and that the plaintiff 
 was not entitled to the relief claimed by him. 
 
 It is clear, however, that if a right of way be acquired Way to one 
 
 1 ... , , 1 1 [• 1 1 close cauuot 
 
 by prescription or grant to one close or parcel oi land, 1,^ u^ed to an- 
 the owner of the right of way will not be justified in o*^^^ ^^o^^'- 
 using the way for the purpose of going to any other 
 land, beyond or beside that to which the way was 
 granted. The grant expressed or implied was only a 
 right of way to one particular close ; and it would 
 subject the servient tenement to a burden, not con- 
 templated by the original grant, if it were made use 
 of for the purpose of going to other closes beyond or 
 beside that to which the way originally led. Thus, in 
 the case of ^kuU v. Gleitisfer {o), by an indenture dated s/.-iiii v. 
 the 4th September, 1861, made between the plaintiffs of 
 the one part, and Robert Wheeler and Thomas Wheeler 
 of the other part, the plaintiffs conveyed to them a 
 piece of land, which afterwards came into the possession 
 of tho defendant, together with the right of way or 
 passage, ingress, egress, and regress with horses, carts, 
 
 (r) 16 C. B., N. S. 81; rrutc, p. 315.
 
 328 
 
 PHESCRIPTIYE RIGHTS. 
 
 or carriages, or otherwise, upon or over a certain bridge, 
 and in, throngli and over the several closes in the 
 declaration mentioned, as belonging and appertaining 
 to the piece of land, then in the possession of the defen- 
 dant Glenister. And the plaintiff contended that the 
 defendants had used the right of way for the purpose of 
 going beyond Wheeler's close, and delivering materials 
 on to their own land. It appeared in evidence that the 
 defendants, who had hired Wheeler's close, used it for 
 a place of deposit for building materials to be used upon 
 their own land adjoining. It w^as contended on the part 
 of the plaintiffs that if Wheeler's close was used merely 
 as a means of getting to Glenister's close, that was not a 
 user of the way within the terms of the grant. The 
 question which the learned judge left to the jury was 
 whether the defendants used the way as a way to 
 Wheeler's land, or was it a mere colorable use of it for 
 the purpose of getting at their own land ; or did the 
 defendant use the way merely for the purpose of carry- 
 ing the building materials through Wheeler's close to 
 their own land. The jury decided that the use was a 
 mere colorable use of the way, and found for the plaintiff 
 with 3/. damages. The Court were of opinion that that 
 was the correct way to leave the question. 
 
 Kepairs of 
 road. 
 
 Grantee may 
 repair. 
 
 No right to 
 deviate. 
 
 With regard to the repairs of a road or way, the 
 person that has the right of way has the right of repair- 
 ing the way ; and the owner of the servient tenement 
 is not bound to repair the way, in the absence of any 
 duty on his part cast upon him by the act or agreement, 
 either of himself or of his predecessors in title. As the 
 grantee of a right of Avay may repair it if he pleases, so, 
 ill case it should become impassable for want of repair, 
 he has no right to deviate from the way. In this respect 
 there is a difference between public and private wa^^s ; 
 for, with regard to a public way, it is generally con- 
 sidered that, if it should become impassable for want
 
 ease:ments. 329 
 
 of repair, the public may deviate from it and go over 
 the adjoining ground. On this subject, I may perhaps 
 mention the recent case of Arnold v. llolhrook {d), in Arnold r. 
 which it was held that a footpath across an arable ^ ,. '.' 
 
 IT •! Dedication of 
 
 field might be dedicated to the public with a reserva- way with 
 
 tion of the right to plough across it; and if it were pi^^gh* across 
 
 so dedicated, the public would not, on its becoming im- it. 
 
 passable after being ploughed up, have any right to 
 
 pass over the adjoining parts of the field, unless they 
 
 had gained such right by prescription from immemorial 
 
 user. 
 
 A right of way is a right to go from one point to Wlion way 
 
 ,1 ., 1 •iiTiTj- not defined. 
 
 another pomt ; and as was said by JLord J iistice ^ , ^ , . 
 
 , "L JLord J ustico 
 
 Mellish 111 the case of Wimbledon and Putney Conmions Melliwh iu 
 
 Conservators v. Dixon {e), to which I have just re- SffSf"'^ 
 
 f erred (,/'), " If a person has land bordering on a common mons Conscrva- 
 
 and it is proved that he went on the common at any place 
 
 where his land might happen to adjoin it, sometimes in 
 
 one place and sometimes in another, and then went over 
 
 the common, sometimes to one place and sometimes to 
 
 another, it would be difficult from that to infer any 
 
 right of way. But if you can find the terminus a quo 
 
 and the terminus ad que in, the mere fact that the owner 
 
 does not go precisely in the same track for the purpose 
 
 of going from one place to the other would not enable 
 
 the owner of the servient tenement to dispute the right 
 
 of road. Suppose the owner of this common had 
 
 granted by deed to Mr. Dixon the right to go from the 
 
 gate leading out of CaDsar's Camp to the highway by 
 
 the National School with carriages and horses at his free 
 
 will and pleasiu^e. I cannot suppose that the grant 
 
 would fail in point of law, because it did not point out 
 
 the precise definite track between the one terminus 
 
 and the other, in which he was to go in using the 
 
 {d) L. E., 8 Q. B. 96. (/) Ante, p. 325. 
 
 [e) L. R., 1 Ch. D. 362, 369.
 
 330 rilESCRlPTIVE KIGIITS. ' 
 
 right of way. If the owner of the servient tenement 
 does not point out the line of way, then the grantee 
 must take the nearest way he can. If the owner of the 
 servient tenement wishes to confine him to a particular 
 track, he must set out a reasonable way ; and then the 
 person is not entitled to go out of the way, merely 
 because the way is rough and there are ruts in it, and 
 so forth."
 
 ( ^31 ) 
 
 LECTUEE XXIII. 
 
 I No^v proceed to consider a few points with respect to 
 the law of Watercourses. And the subject naturally Water- 
 divides itself into two heads, namely, 1st, the right of ^""^■'^''''• 
 the riparian proprietor to the nsc of the water of a Use. 
 stream which runs through or along his land ; and 
 2ndly, the right of the riparian proprietor to have the 
 water which flows down come to him in its pure and 
 natural state, unjyonutcd with extraneous matter. rollution. 
 
 On the first point the law is concisely laid down by 
 Sir John Loach in the case of WrigJit v. Iloirard (a). H'riff^dv. 
 He says, " The right to use of water rests on clear and 
 settled principles. Prima facie the proprietor of each 
 bank of a stream is the proprietor of half the land 
 covered by the stream, but there is no property in the 
 water. Every proprietor has an equal right to use the 
 water which flows in the stream; and, consequently no 
 proprietor can have the right to use the water to the 
 prejudice of any other proprietor. Without the consent 
 of the other proprietors who may be affected by his 
 operations, no proprietor can either diminish the quan- 
 tity of water, which would otherwise descend to the 
 proprietors below, nor throw the water back upon the 
 proprietors above. Every propriety, who claims a 
 right either to throw the water back above, or to 
 diminish the quantity of water which is to descend 
 below, must, in order to maintain his claim, cither prove 
 an actual grant or licence from the proprietors affected 
 by his operations, or must prove an uninterrupted 
 enjoyment of twenty years ; which term of tAventy 
 
 J, {ri) 1 Sim. & Stu. 190, 203.
 
 332 
 
 PRESCRIPTIVE RIGHTS. 
 
 years is now adopted upon a principle of general conveni- 
 ence as affording conclusive presumption of a grant." 
 This was laid down in the year 1823, before the 
 passing of the Prescription Act (b), which was not 
 passed until the year 183"2. Prior to the Act the 
 presumption of a grant certainly arose from twenty 
 years' uninterrupted user as of right ; but, as we have 
 seen {c), the presumption was not always quite conclu- 
 sive; and in that respect perhaps the law, as laid down 
 by the Yice-Chancellor, might require a little modifica- 
 tion. But, with regard to the right of each riparian 
 proprietor to the benefit of the water of every natural 
 stream, unaffected by the acts of any proprietor either 
 above or below him, the law as laid down in Wright v. 
 Moicqrd still remains; although in many points the 
 exact rights of the respective proprietors have in recent 
 times been more particularly ascertained by subsequent 
 decisions. 
 
 Baron Parke 
 iu Embrc'j v. 
 Owen. 
 
 Irrio^ation. 
 
 With regard to the use of the water which may be 
 made by a riparian proprietor, the law is more particu- 
 larly expounded by Baron Parke in the case of Emhrcy 
 V. Oii:cn {(l). The Cjuestion in that case turned upon 
 the quantity of water, which a riparian proprietor 
 might take from the stream, for the purpose of irrigat- 
 ing meadows belonging to him, situate on the bank of 
 the stream. And in that case it was held that a diver- 
 sion for the purpose of in-igation, which was not con- 
 tinuous, and which caused no diminution of the water 
 cognizable by the senses, was a diversion which might 
 be lawfully used. And, in delivering the judgment of 
 the Court, Baron Parke makes the following remarks, 
 speaking of ii-rigation: ''Nor do we mean to lay down 
 that it would in every case be deemed a lawful enjoy- 
 ment of the water, if it was again returned into the 
 
 {b) Stat. 2 & 3 Wm. IV 
 (<■) Ante, p. 5. 
 
 [d) GExch. 3.53,371.
 
 WATERCOURSES. 333 
 
 river with no other diminution than that which was 
 caused by the absorption and evaporation attendant on 
 the irrigation of the lands of the adjoining proprietor. 
 This must depend upon the circumstances of each case. 
 On the one hand it could not be permitted that the 
 OTVTier of a tract of many thousand acres of porous soil 
 abutting on one part of the stream, could be permitted 
 to irrigate them continually by canals and drains and so 
 cause a serious diminution of the quantity of water, 
 though there was no loss to the natural stream than 
 that arising from the necessary absorption and evapora- 
 tion of the water employed for that purpose; on the 
 other hand one's common sense would bo shocked by 
 supposing that a riparian owner could not dip a water- 
 ing-pot into the stream, in order to water his garden, or 
 allow his family or his cattle to drink it. It is entirely 
 a question of degree ; and it is .very difficult, indeed 
 impossible, to define precisely the limits which separate 
 the reasonable and permitted use of the stream, from its 
 wrongful aj)phcation ; but there is often no difficulty in 
 deciding whether a particular case falls within the 
 permitted limits or not ; and in this we think that, as 
 the inigation took place, not continuously, but only at 
 intermittent periods, when the river was full, and no 
 damage was done thereby to the working of the mill, 
 and the diminution of the water was not perceptible to 
 the eye, it was such a reasonable use of the water as not 
 to be prohibited by law. If so, it was no infringement 
 of the plaintiff's right at all ; it was only the exercise 
 of an equal right, which the defendant had to the 
 usufruct of the stream." In accordance "wdth this 
 principle the case of the Jlediccnj Company v. Earl of ^Vedu-ai/ 
 Romney and others (e) was decided. In that case the Earl of'Mo'm- 
 defendants erected works on the banks of the river for "''^• 
 the purpose of raising, and thereby raised, water from 
 the river, for the supply of the county lunatic asylum 
 {() 9 c. B., X. s. .',:.-,.
 
 334 
 
 PRESCRIPTIVE RIGHTS, 
 
 TFilts and 
 
 licrks Canal 
 
 Navigation 
 
 Coynpany v. 
 
 Swindon 
 
 Waterworhs 
 
 Company. 
 
 and county gaol. And it was hold by the Court that 
 these purposes were more extensive than those for 
 which a riparian proprietor, as such, could insist upon 
 appropriating the stream as it passed by his land. So 
 in the case of The Wilts and Berlcs Cinial Navigation 
 Company v. Stcindon IFatcncorLs Company (/), the 
 canal company had, under their Act, power to supply 
 their canal with water from the neighbouring streams, 
 and they bought a mill and turned the mill stream into 
 the canal. Many years afterwards the waterworks 
 company diverted part of the mill stream, and thereby 
 supplied with water the town of Swindon, which had 
 then a population of 7,000 or 8,000 inhabitants, 
 brought there of late years by the establishment of the 
 Great Western Railway Company's works ; but which 
 before had been very badly supplied with water. And 
 it was held that the canal company, both under their 
 Act and as owners of the mill, were riparian proprietors, 
 and had power to prevent the unlawful use of the water 
 by other riparian proprietors ; and that the supply of 
 the neighbouring town of Swindon with water was such 
 an unlawful use. Lord Justice Mellish observed in the 
 course of his judgment {g), " It is quite plain, indeed I 
 do not know that it is disputed, that the diversion of 
 the water of a stream for the purpose of sending it in 
 large quantities to a reservoir to supply a town, is not 
 within the right of a riparian proprietor." 
 
 The Lord Chancellor, Earl Cairns, in his judgment 
 in the same case in the House of Lords (A) , summarized 
 the law on this subject as follows : — " Undoubtedly the 
 lower riparian owner is entitled to the accustomed flow 
 of the water for the ordinary purposes for which he can 
 use the water, that is quite consistent with the right of 
 the upper owner also to use the water for all ordinary 
 
 (/) L. R., 9 Ch.451; 7 II. L. 
 697. 
 
 {;i) L. R., 9 Ch. 461. 
 
 \h) L. R., 7 H. L. 70i, 705.
 
 WATERCOURSES. 335 
 
 purposes, namely, as has been said, ad /(trrnuluiii cf ad 
 pofaiuhim, whatever portion of the water may be tliereby 
 exhausted and may cease to come down hy reason of 
 that use. But farther, there are uses no doubt to wliich 
 the water may be put by the upper owner, namely, uses 
 connected with the tenement of that upper owner. 
 Under certain circumstances, and provided no material 
 injury is done, the water may be used and may be 
 diverted for a time by the upper owner for the purpose 
 of irrigation. That may well be done; the exhaustion 
 of the water which may thereby take place may be so 
 inconsiderable as not to form a subject of complaint by 
 the lower owner, and the water may be restored after 
 the object of irrigation is answered, in a volume sub- 
 stantially equal to that in which it passed before. 
 Again, it may well be that there may be a use of the 
 water by the upper owner for, I will say, manufacturing 
 purposes, so reasonable that no just complaint can be 
 made upon the subject by the lower owner. Whether 
 such a use in any particular case could be made for 
 manufacturing purposes connected with the upper tene- 
 ment would, I apprehend, depend upon whether the use 
 was a reasonable use. Whether it was a reasonable 
 use would depend, at all events, in some degree on the 
 magnitude of the stream from which the deduction was 
 made for this purpose over and above the ordinary use 
 of the water. But, my lords, I think your lordships 
 will find that, in the present case, you have no difficulty 
 in saying whether the use which has been made of the 
 water by the upper owner, comes under the range of 
 those authorities which deal with cases such as I have 
 supposed, — cases of irrigation and cases of manufacture . 
 Those were cases where the use made of the stream by 
 the upper owner has been for purposes connected with 
 the tenement of the upper owner. But the use which 
 here has been made by the appellants of the water, and 
 the use which they claim the right to make of it, is not
 
 336 
 
 PRESCRIPTIVE RIGHTS. 
 
 for the piu'posc of their tenements at all, but is a use 
 which virtually amounts to a complete diversion of the 
 stream — as great a diversion as if they had changed the 
 entire watershed of the country, and in place of allow- 
 ing the stream to flow towards the south, had altered it 
 near its soui'ce so as to make it flow towards the north. 
 My lords, that is not a user of the stream which could 
 be called a reasonable user by the upper owner; it is a 
 confiscation of the rights of the lower owner ; it is an 
 annihilation, so far as he is concerned, of that portion 
 of the stream which is used for those purposes; and that 
 is done, not for the sake of the tenement of the upper 
 owner, but that the upper owner may make gains by 
 alienating the water to other parties who have no 
 connection whatever with any part of the stream." 
 
 Pollution. 
 
 BaxendaU v. 
 McMurray, 
 
 Again, every riparian proprietor has the right to have 
 the water of the stream which flows down through or 
 beside his land, preserved by those above him in its 
 piu^e and natm^al state, free from all pollution. But the 
 right may exist to interfere with the course of nature by 
 altering, not only the quantity, but also the quality of 
 the water ; and such a right is an easement which may 
 be claimed by prescription, or by twenty years' enjoy- 
 ment under the terms of the Prescription Act, 2 & 3 
 Will. IV. c. 71. Thus in the case of Baxendale v. 
 JIcMurrai/ {i), the defendant was the owner of an 
 ancient paper mill, where paper had been made from 
 rags ; but he introduced a new vegetable fibre, and 
 carried on the works upon the same scale, for making 
 paper from this new material. For more than twenty 
 years before this change, the refuse arising from the 
 paper manufacture had been discharged into a stream 
 which ran past the plaintiff's house. And it was held 
 that the defendant had acquired a right, by long user, 
 to discharge into the stream the washings produced by 
 {■<) L. R., 2 Ch. 700.
 
 WATERCOURSES. 337 
 
 tlie manufacture of paper, in the reasonable and proper 
 course of such manufacture, using any proper materials 
 for the purpose, so that he did not increase the pollution 
 of the stream ; and that the onus lay on the plaintiff to 
 prove any increase of pollution. The plaintiff con- 
 tended that although the defendant had a right to 
 pollute the stream by making paper from rags, as had 
 been done for many years, yet he had no right in a 
 similar way to pollute the stream by making paper of 
 a new vegetable fibre ; but on that point the judgment 
 of tlie Court was against him. Tliis case, tlierefore, 
 shows that a right to pollute a stream may be gained by 
 upwards of twenty years' user, providing the pollution 
 carried on during the whole of that time be not 
 increased in its quantity. 
 
 In most cases, however, the pollution is gradual, Gradual 
 especially in cases where the pollution takes place by P^i^*^*^"^- 
 drainage from towns, which sometimes gradually in- 
 crease in population to such an extent as to cause a 
 pollution, imperceptible at first, to become in course of 
 time a very great nuisance. And in tliat case it seems, 
 according to the principle which pervades all cases of 
 prescriptive right, that in order to gain a right by a 
 user for twenty years, the user must, dimng the whole 
 of the twenty years, be such a user as is claimed. And 
 the consequence is that if, at the beginning of the 
 twenty years, the pollution of the water was materially 
 less than at the end of the period, no right to pollute 
 the water can be gained by the twenty years' user, 
 beyond the amount of pollution which existed at the 
 commencement of the term. Thus in the case of 
 Crossley v. Ligktoicler (/.•), it was laid down by Lord Lord 
 Chelmsford, Lord Chancellor (/), that the user which c-ossian'. 
 originates the right must also be its measm'e. lie LiyhtoaUr. 
 observes : " The first question to be determined in this 
 {J;) L. E,., 2 Ch. 478. (0 Page 480. 
 
 w.r. z
 
 338 PKESCRIPTIVE RIGHTS. 
 
 case is, whether the Messrs. Irving, the occupiers of the 
 former dye works, had acquired a prescriptive right to 
 foul the stream. The evidence appears to me to be 
 sufficient to establish that, for twenty years prior to 
 1839, when the dye works were discontinued, the foul 
 water from those works had been discharged into the 
 stream. The extent to which the fouling of the water 
 took place in Messrs. Irving's time cannot of course be 
 absolutely determined ; but, looking to the evidence on 
 the subject, it appears to me, that although similar in 
 kind, it was considerably less in degree than since the 
 defendants' works have been in operation. The defen- 
 dants contend that, whatever may be the increased 
 extent of the Messrs. Lightowler's buildings or of their 
 business, their rights must be measured by the means 
 which they had of discharging their foul water into 
 the Hebble, and that if the watercourses which 
 Messrs. Irving used have not been enlarged, and the 
 means of discharge into the stream have remained the 
 same, the plaintiffs have no ground of complaint. In 
 answer to this argument, however, it may be observed 
 that the right upon which the defendants insist is, not 
 to pour water but to pom- foul water into the Hebble. 
 It may be difficult to fix a limit to such a right, where 
 the quantity of fouling to which the prescription extends 
 has not been far exceeded ; but, where the excess is 
 considerable, the proof will be comparatively easy. 
 The user which originated the right must also be its 
 measure, and it cannot be enlarged to the prejudice 
 of any other person." 
 
 Natural The principles above laid down apply only to natm-al 
 
 streams, what streams. In some cases it is not easy to determine 
 are. •' 
 
 whether a stream may or may not be called a natural 
 
 stream, so as to carry with it the rights and duties of 
 
 riparian proprietors. A question of this kind occurred
 
 ■WATERCOURSES. 330 
 
 in the case of Holhcr v. Pontt{m). In that case a iMkcrv. 
 natural stream divided itself at a certain point into two ■^'"■'"■ 
 branches ; one branch ran down to the river Irwell, and 
 the second branch passed into a farm-yard, where it 
 supplied a watering trough ; and the overflow from the 
 trough was formerly diffused over the ground, and 
 found its way idtimately into the river Irwell. This 
 branch appeared to have been made by artificial means, 
 but was of immemorial age. In the year 1847 the 
 owner of the land on which the watering trough stood, 
 and thence down to the Irwell, collected the overflow 
 into a reservoir, and conducted it by a culvert to a mill 
 situated on the banks of the Irwell. In 1865 he became 
 the owner of all the rest of the land through which the 
 second branch flowed. And in 1867 he sold the mill, 
 with all water rights, to the plaintiff. A riparian 
 owner on the stream above the point of divergence, 
 obstructed the flow of the water ; and the plaintiff, in 
 respect of his right to the flow of water to the mill, 
 brought an action against the owner on the upper part 
 of the stream for so obstructing the flow of the water. 
 And it was held that the plaintiff was, under the cir- 
 cumstances, such a riparian owner as might bring an 
 action for the obstruction of the stream against the 
 riparian owner above the point at which the stream 
 divided. The contention was, that the stream was 
 merely an artificial stream, and consequently the plain- 
 tiff was not a riparian owner. But it was held that 
 the stream was analogous to a natural stream, and that 
 its character as a natural stream was not destroyed by 
 the pains which had been taken to collect the water, 
 and to pass it down to the mill by means of a culvert. 
 
 With regard to artificial watercourses, a claim similar 
 in its nature to that of a right to pollute flowing 
 water by manufactures or otherwise, is that which is 
 
 {in) L. R., 8 Ex. 107. 
 
 z 2
 
 340 PRESCRIPTIVE RIGHTS. 
 
 Right to dis- sometimes claimed of discliarging refuse water from 
 watefr ^^ "^^ mines and other works, over lands belonging to other 
 people. Siicli a discharge is an actionable injury (n) ; 
 although an increased percolation of water into a neigh- 
 bouring mine, caused by the proper working of a mine 
 adjoining, does not give any right of action; such 
 working being only the natural use which every man 
 has a right to make of his own land (o) . But an unin- 
 terrupted burdening of one's neighbour's land with a 
 servitude which in its inception is actionable, or which 
 may be prevented by him, in time gives a right to the 
 continuance of the servitude. A right thus acquired, to 
 let off water impregnated with mineral substances into 
 a neighbouring watercourse, was claimed in the case of 
 m-it/Jd V. Wright V. WiUiains [p). It was held in that case that a 
 7; Mmns. claim of this nature was a claim to a watercourse, within 
 the meaning of the second section of the Prescription 
 Act ((/), and that accordingly a user of this kind for 
 forty years next before the commencement of the suit 
 gave the defendant a legal right so to dispose of his 
 Right to refuse water. Eef use water may sometimes be of great 
 
 surpkis water. r^(-"[yr^j^^a,ge to the Owner of the servient tenement ; and 
 the question then arises whether, by long user, he may 
 not only be bound to receive the water, but whether he 
 has not by long user acquired a right to the water, so 
 as to compel the owner of the tenement from which the 
 water proceeds to keep up the supply of the water for 
 the benefit of the owner of the servient tenement. An 
 ArJcu-rlght v. important case on this subject is that of Arl-icrlght v. 
 ^^^^- Gell {)•) ; and under the circumstances of that case it 
 
 was considered that the watercourse was an artificial 
 watercourse, made for a particular and temporary pur- 
 
 {n) Ilardman v. Xoyth Eastern Kcnyon, L. R., 11 Ch. D. 7S2. 
 Rail. Co., L. R., 3 C. P. D. 1G8. (^;) 1 Mee. & Wels. 77. 
 
 (0) Wilson V. Waddell, L. R., (y) Stat. 2 & 3 Will. IV. c. 71; 
 
 2 App. Cas. 9o. See also IVest ante, p. 309. 
 Cumberland Iron and Steel Co. v. (r) .3 Mce. & Wels. 203.
 
 WATERCOURSES. 341 
 
 pose, and that its water was originally taken by the 
 owner of the servient tenement, with notice that it 
 might be discontinued. The circumstances of the case, 
 therefore, did not afford any presumption of a grant of 
 the stream, by the owners of the mines from which it 
 issued. And it was accordingly held that the owner 
 of the land through which the stream passed did not 
 acquire a right to have it continued by force of the 2nd 
 section of the statute 2 & 3 Will. lY. c. 71. 
 
 On the other hand, in the case of Ilagor v. CJtad- Magor v. 
 icich {h), the Court of Queen's Bench held that, in the ^'^""^'"^^- 
 absence of a special custom, artificial watercourses are 
 not to be distinguished in law from natui'al ones, a pro- 
 position with respect to which the Judicial Committee 
 of the Privy Council have observed that as a general 
 proposition it would be too broad (f). In the case of 
 Magor v. Chachncl-, mine owners had made an adit 
 through their lands to drain the mines, which they 
 afterwards ceased to work ; and the owner of a brewery, 
 through whose premises the water flowed for twenty 
 years after the working had ceased, had, during that 
 time, used it for brewing. And it was held that he 
 thereby gained a right to the undistm-bed enjoyment of 
 the water, and that the mines could not afterwards be 
 so worked as to pollute the stream. In the subsequent 
 case of Wood v. Wai(d{u), it was held that no action iFoody.Waml. 
 will lie for the diversion of an artificial watercourse 
 when, from the nature of the case, it is obvious that 
 the enjoyment of it depends upon temporary circum- 
 stances, and is not of a permanent character; and 
 where the interruption is by a person who stands in the 
 nature of a grantor. And it v>'as also held that, where 
 water has flowed in an artificial and covered watercom^se 
 
 {^ 11 A. & E. 571. L. E., 4 App. Cas. 121, 127. 
 
 [t) liameshur Pershad Xarabi (m) 3Exch. 748. See also (7«reff 
 
 Singh v. Koonj Bchari Tatiucl;, v. Martgn, 19 C. B., N. S. 732.
 
 342 rRESCRirxivE rights. 
 
 for more than sixty years, from a colliery into an im- 
 memorial and natural stream, upon whose banks the 
 plaintiff's mills are situated, the plaintiff, in such case, 
 has no right of action for diversion of the water of such 
 artificial watercourse against a party, through whose 
 land it passes, even if he does not claim under or is 
 unauthorized by the colliery owners. The case, how- 
 ever, would perhaps be different if the water were pol- 
 luted. These cases seem to shadow out the law with 
 respect to artificial watercourses. In many respects it 
 resembles the law of natural watercourses; but the 
 rights with regard to them vary in this respect, that, 
 whereas a natural watercourse is the gift of nature, and 
 exists by the bounty of providence, an artificial stream 
 may have been created for a mere temporary purpose ; 
 and, if so created, no right to its continuance can be 
 acquired by its enjoyment ; although a sufficient length 
 of the enjoyment of such water in a pure state may 
 give a right to prevent the water from being polluted. 
 
 The principles which regulate the rights of owners of 
 
 land in respect to water flowing in known and defined 
 
 channels, whether upon or below the surface of the 
 
 ground, do not apply to underground water, which 
 
 Percolation of merely percolates through the strata in no knoAvn 
 
 water under- channels. The leading authority on this subject is that 
 
 of Cltascmoye v. Richards in the House of Lords (.r). 
 
 chascmorc v. The plaintiff in that case was a mill-owner near the 
 
 liic lards. town of Croydou in Surrey. The mill was situate on 
 
 the river Wandle ; and the river was fed and supplied, 
 
 above the plaintiff's mill, from the water produced by 
 
 the rainfall on a district of many thousand acres in 
 
 extent, comprising the town of Croydon and its vicinity. 
 
 The defendant represented the Local Board of Health 
 
 for the io^rD. of Croydon. The board, in order to supply 
 
 (.-■) 7 11. of L. Cas. oid.
 
 WATERCOURSES. IJilJ 
 
 the town of Croydon with water, find for other sanitary 
 purposes, sank a large well to the depth of seventy- four 
 feet in a piece of land belonging to them in the town of 
 Croydon. The distance of this well from the com- 
 mencement of the river Wandle was ahout a quarter of 
 a mile. From this well they pumped up very large quan- 
 tities of water, namely, between 500,000 and G00,000 
 gallons a day. And the result was that the water 
 which flowed to the plaintiff's mill was sensibly dimi- 
 nished in quantity, and in its value as a power towards 
 working the mill. The question was whether imder 
 these circumstances the plaintiff, the mill-owner, had 
 any right of action against the Local Board for the 
 injury by this means to the river Wandle. The House 
 of Lords summoned the judges, there having been some 
 differences of opinion in the Court below. And the 
 judges present delivered a unanimous opinion, which 
 was followed by the House of Lords, that, under the 
 circumstances, the plaintiff had no right of action 
 against the defendant for the damage done by means 
 of their well to the quantity of water which flowed 
 down the river. 
 
 The opinion delivered by Mr. Justice "Wightman on the 
 part of the judges, deserves perusal. Lord Kiugsdown 
 in his judgment ( y) observes that the house was greatly 
 indebted to those learned persons for- the admn-able 
 reasoning, by which they appear to have removed all 
 doubt upon one of the most important questions that 
 ever came under the consideration of a Court of Justice. 
 After stating the facts of the case, Mr. Justice Wight- 
 man proceeds (~) as follows : — " The law respecting the 
 right to water flowing in definite visible channels, may 
 be considered as pretty well settled by several modern 
 decisions, and is very clearly enunciated in the judgment 
 
 {•/) Page 390. {z) Tagc 3GG.
 
 344 PRESCRIPTIVE RIGHTS. 
 
 of the Court of Exchequer in the case of Emhroj v. 
 Owen {((). But the law, as laid down in those cases, is in- 
 applicable to the case of subterranean water not flowing 
 in any definite channel, nor indeed at all in the ordinary 
 sense ; but percolating or oozing through the soil more or 
 less according to the quantity of rain that may chance to 
 fall. The inapplicability of the general law respecting 
 rights to water, to such a case, has been recognized and 
 observed upon by many judges, whose oj^inions are of 
 the greatest weight and authority." The learned judge 
 then proceeds to mention several cases in which this 
 distinction was taken, and proceeds {h), " The question 
 then is, whether the plaintiff has such a right as he 
 claims Jure natnrw to prevent the defendant sinking 
 a well in his own ground at a distance from the mill, 
 and so absorbing the water percolating in and into his 
 own ground beneath the surface, if such absorption has 
 the effect of diminishing the quantity of water which 
 would otherwise find its way into the river Wandle ; 
 and by such diminution affects the working of the 
 plaintiff's mill. It is impossible to reconcile such a 
 right with the natural and ordinary rights of land 
 owners, or to fix any reasonable limits to the exercise of 
 such a right. Such a right as that contended for by 
 the plaintiff would interfere with, if not prevent, the 
 draining of land by the owner. Supposing, as it was 
 put at tlie bar in argument, a man sank a well upon 
 his own land, and the amount of percolating water 
 which found a way into it had no sensible effect upon 
 the quantity of water in the river which ran to the 
 plaintiff's mill, no action would be maintainable ; but if 
 many landowners sank wells upon their own lands, and 
 thereby absorbed so much of the percolating water, by 
 the united effect of all the wells, as would sensibly and 
 injuriously diminish the quantity of water in the river, 
 though no one well alone would have that effect — could 
 (-0 G Excli. 3.53; ante, p. 332. {h) 7 II. uf L. Cas. p. 370.
 
 WATERCOURSES. 345 
 
 an action be maintained against any one of them, and 
 if any, which ? for it is clear that no action could be 
 maintained against them jointly. In the course of the 
 argument one of your Lordships [Lord Brougham] 
 adverted to the French artesian well at the Abattoir 
 de Grrenelle, which was said to draw part of its supplies 
 from a distance of forty miles, but underground, and, 
 as far as is known, from percolating water. In the 
 present case the water which finds its way into the 
 defendant's well is drained from and percolates through 
 an extensive district ; but it is impossible to say how 
 much from any part. If the rain which- has fallen may 
 not be intercepted whilst it is merely percolating through 
 the soil, no man could safely collect the rain water as 
 it fell into a pond ; nor would he have a right to inter- 
 cept its fall before it reached the ground, by extensive 
 roofing from which it might be conveyed to tanks, to 
 the sensible diminution of water whicli had, before 
 the erection of such impediments, reached the ground, 
 and flowed to the plaintiff's mill. In the present case, 
 the defendant's well is only a quarter of a mile from 
 the river Wandle ; but the question would have been 
 the same if the distance had been ten or twenty or 
 more miles distant : provided the effect had been to 
 prevent underground percolating water from finding its 
 way into the river, and increasing its quantity, to the 
 detriment of the plaintiff's mill. Such a right as that 
 claimed by the plaintiff is so indefinite and unlimited 
 that, unsupported as it is by any weight of authoritj", 
 we do not think that it can be well founded, or that the 
 present action is maintainable ; and we, therefore, answer 
 your Lordships' question in the negative." The question 
 was whether, under the circumstances stated in the case, 
 the Croydon Local Board of Health was legally liable 
 to the action of the appellant for the abstraction of the 
 water in the manner described. Another case of the same 
 kind, decided on the authority of Chascinorc v. Richards,
 
 34G PRESCRIPTIVE RIGHTS. 
 
 The Queen v. is that of The Queoi V. The Metropolitan Board of Works (c), 
 Boardof "" ^0 which I think I need not do more than refer. 
 
 Wor/cs. 
 
 The Hmits of the doctrine of these cases may be 
 GmndJunctloH found in the subsequent case of The Grand Junction 
 Hhugar. ' ' Canal Company v. Shugar {d). In that case the de- 
 fendant represented the Local Board of Health of the 
 town of Tring ; and the suit was brought against them 
 by the Grrand Junction Canal Company, for the purpose 
 of restraining them from diverting certain water 
 belonging to the canal company. This water belonged 
 to the company by vii'tue of interceptions made by 
 them, under the powers of their Acts, of a certain 
 stream, flowing from the Silk Millpond near Tring ; 
 which interceptions caused the water to flow into a 
 branch of their canal at a high level. The Local 
 Board of Health made a drain near and below the Silk 
 Millpond. It was not disputed that the drain and 
 other works of the Local Board had lowered the water 
 in the Silk Millpond, and that the water now came out 
 at a lower level, and had to be pumped up by the 
 plaintiffs ; but there was considerable conflict of evi- 
 dence as to the manner of the interference. However, 
 in the view which the Lord Chancellor took of the 
 evidence, it was established that some of the water 
 flowing in the stream was withdrawn from the stream 
 by the action of the drain. And his Lordship was of 
 opinion that although a landowner will not in general 
 be restrained from drawing off the subteri'anean waters 
 in the adjoining land, yet he will be restrained if, in so 
 doing, he draws off the water flowing in a defined 
 surface channel thi'ough the adjoining land. His 
 Lordship observes (e), that the distinction is plain. " If 
 you are simply using what you have a right to use, and 
 leaving your neighbour to use the rest of the water as 
 
 (r) 3 Best k Smith, 710. [t) Page 487. 
 
 \'l) L. K., G Ch. 483.
 
 •WATERCOURSES. 347 
 
 it flows on, you are entitled to do so; but you must 
 not appropriate that which you have no right to appro- 
 priate to yourself. In this case there is ex conccssi>i, a 
 defined channel in which this water was flowing ; and 
 I think the evidence is clear that some of it is with- 
 drawn by the di'ain which the Local Board have made. 
 As far as regards the support of the water, all one can 
 say is this : I do not think CJiasemore v. Rkharch or 
 any other case has decided more than this ; that you 
 have a right to all the water which you can draw from 
 the different sources which may percolate under ground ; 
 but that has no bearing at all on what you may do 
 with regard to water which is in a defined channel, and 
 which you are not to touch. If you cannot get at the 
 underground water without touching the water in a 
 defined surface channel, I think you cannot get at it at 
 all. You are not by your operations or by any act of 
 yours to diminish the water which runs in this defined 
 channel, because that is not only for yourself but for 
 your neighbours also, who have a clear right to use it, 
 and have it come to them unimpaired in quality and 
 undiminished in quantity. That appears to me to be 
 clearly the course which the Local Board have taken, 
 and, therefore, they have clearly and plainly given 
 ground for the injunction." 
 
 You observe that in Chascmore v. Richards the action 
 was brought in respect of water which, but for the well, 
 would have gone into the stream. The suit in TJie 
 Grand Junction Canal Company v. Shugar was in respect 
 of water which, by means of the drains made by the 
 defendant, Avas actually abstracted from the stream, 
 after it had become a stream. In this I conceive lies 
 the difference between the two cases.
 
 ai8 
 
 rRESCRlPTIVE IIIGHTS. 
 
 LiL^llt. 
 
 Immemorial 
 enjoyment. 
 
 Aunsley v. 
 Glover. 
 
 LECTUEE XXIV. 
 
 I isow come to cousider claims to the use of liglit, air, 
 and a few otlier matters. The Prescription Act (r/) 
 shortens the time of prescription in favour of the en- 
 joyment of light in a much more peremptory way than 
 it does with respect to ways, watercom^ses, and other 
 easements. So that, in the case of light, the Prescrip- 
 tion Act is generally relied upon as giving a title. But, 
 as in the case of other prescriptive rights, so in the case 
 of a claim to light, the claim may be founded upon 
 immemorial enjoyment ; and this, in fact, was the case 
 in the suit of Aynsleu v. Glover {b), to which I called 
 your attention in a former Lecture (c). 
 
 Access of 
 light enjoyed 
 for twenty 
 years. 
 
 Sect. 4. 
 
 The third section of the Prescription Act {a) enacts 
 "■ that when the access and use of light to and for any 
 dwelling-house, workshop, or other building, shall have 
 been actually enjoyed therewith for the full period of 
 twenty years without interru2:)tion, the right thereto is 
 to be deemed absolute and indefeasible, any local usage 
 or custom to the contrary notwithstanding, unless it 
 shall appear that the same was enjoyed by some consent 
 or agreement expressly made or given for that purpose 
 by deed or writing." This period, like the other 
 periods, must, by the fourth section, be deemed and taken 
 to be the period next before some suit or action, wherein 
 the claim or matter, to which such period may relate, 
 shall have been or shall be brought into question. And 
 in this, as in the other cases, by the same section, no act 
 
 {r,) Ptat. 2 >S.- 3Will. IV. r. 71. 
 {/)) L. R., 18 Eq. oU; 10 Ch. 
 
 283. 
 
 {<■) Ante, p. 306.
 
 LIGHT. 349 
 
 or other matter shall be deemed to be an interruption 
 
 within the meaning of the Act, unless the same shall 
 
 have been or shall bo submitted to or acquiesced in for 
 
 one year after the party interrupted shall have had or 
 
 shall have notice thereof and of the person making or 
 
 authorizing the same to be made. You will observe 
 
 that, in this case, actual enjoyment of the access and 
 
 use of light for twenty years without interruption makes 
 
 the right absolute and indefeasible, unless enjoyed by 
 
 consent or agreement expressly made or given by deed 
 
 or writing. The seventh section of the Act, therefore, Sect. 7 does 
 
 which excludes from the computation of certain periods ^^^ '•^wh'- 
 
 the times during which any person otherwise capable of 
 
 resisting the claim shall have been an infant, idiot, non 
 
 compos mentis, feme covert, or tenant for life, or during 
 
 which any action or suit shall have been diligently 
 
 prosecuted until abated by death of any party or parties 
 
 thereto, does not apply in the case of lights ; because 
 
 that section excepts cases in which the right or claim is 
 
 by the Act declared to be absolute and indefeasible. 
 
 Nor does the eighth section apply to the case of light ; Scct. 8 does 
 
 for the eighth section relates only to the period of forty "*'*^ '4'Pb'- 
 
 years mentioned in the Act ; and the period of forty 
 
 years has nothing whatever to do with any claim to the 
 
 access and use of light. 
 
 It follows, therefore, that if I erect a house on my 
 ovra land, with windows overlooking my neighboiu-'s 
 land ; and the access and use of light to and for my 
 house thi'ough those windows continues to be actually 
 enjoyed therewith for the full period of twenty years 
 without interruption, I get an absolute and indefeasible 
 right to the use of the light from that time forward ; 
 unless it can be shown that I enjoyed the right by some 
 consent or agreement of my neighbour expressly made 
 or given for that piu'pose by deed or writing. That Landowner's 
 being so, the question not unfrequently occurs, on the ^'^^'^^^' ^^
 
 350 PRESCRIPTIVE RIGHTS. 
 
 ■windows part of landowners wliose neiglibours begin building 
 
 his^land^°° lioiises with windows overlooking their lands, as to 
 what coiu'se they should take in order to prevent the 
 windows becoming, by a twenty years' user, permanent 
 injuries to the landowner's property. Now one answer 
 to this question is, that the landowner, under such 
 circumstances, has no right to prevent his neighbour 
 from building upon his own land, and from making 
 windows in the houses so built, overlooking the land- 
 owner's property, whatever the nature of that property 
 may be ; whether it be a garden in which he wishes for 
 privacy, or land on which he may intend himself to 
 build some day. In truth, his only remedy is to inter- 
 rupt the access and use of light to the buildings, which 
 have been erected with windows overlooking his own 
 land ; and this he can only do by erecting, which he 
 has a perfect right to do, any building, screen or other 
 erection on his own land in such a way as to block out 
 his neighbour's lights. And this he must do before 
 these lights have been enjoyed for the full period of 
 twenty years; but he may do it, and do it with im- 
 punity, at any time prior to the expiration of the period 
 of twenty years from the making of the windows. 
 
 One of the leading cases with regard to the right to 
 TapUnffv. light is that of TapJlng v. Jone^ (c). It was an action 
 '^''""'" brought by the respondent Jones against the appellant 
 
 Tapling for obstructing the respondent's lights, and the 
 facts were substantially as follows : Jones, the plaintiff 
 below, was a silk mercer, and at the time of the action 
 carried on business at Nos. 107, 108, and 109, Wood 
 Street, Cheapside. He had been in possession of Nos. 
 108 and 109 for several years. They were on the west 
 side of Wood Street, and abutted in the rear or eastward 
 on premises belonging to the defendant Tapling, num- 
 bered 1 to 8, and called Grrcsham Street property. In 
 
 {(') 11 11. of L. 290.
 
 LIGHT. 351 
 
 the year 1852 the plaintiff pulled down Nos. 108 and 
 109, Wood Street, and erected on their site new ware- 
 houses, in doing which he altered the position and 
 enlarged the dimensions of the windows previously 
 existing, increased the height of the buildings, and set 
 back the rear line of them so as to approach nearer to 
 the defendant's premises. With regard to No. 107, 
 Wood Street, the lights in which were the cause of the 
 dispute, the plaintiff became possessed of it in the year 
 1857; up to that time it had been a public-house known 
 as the " Magpie and Pewter Platter," which possessed 
 ancient windows, entitled to access of light and air from 
 an open space belonging to the defendant, and called 
 " The Flying Horse Court," situate between the plain- 
 tiff's premises and those of the defendant. On obtain- 
 ing possession of No. 107, the plaintiff began to make 
 alterations in it, in order to make the floors of all his 
 premises correspond with each other. He lowered the 
 first and second floors, and lowered the windows in 
 them to agree with the floors. One of the windows 
 was brought down about one foot lower than before ; 
 the other was about the same size as the old one, and 
 both occupied parts of the old apertures. One small 
 window in the first floor was blocked up. The plaintiff 
 also built two additional stories, in the first of which he 
 opened a new window, and in the other he placed a 
 window extending across the whole width of the build- 
 ing. These new windows were so situated that it was 
 impossible for the defendant, the owner of the Gresham 
 Street property, to obstruct or block them, without also 
 obstructing or blocking to an equal or greater extent 
 that portion of the windows in the new building which 
 occupied, but with an enlarged Sjjaee, the site of the 
 ancient windows in the " Magpie and Pewter Platter." 
 The plaintiff's alterations were completed in August, 
 1857. At the end of the year 185G, the defendant 
 Tapling had pulled down the buildings then standing
 
 352 PRESCRIPTIVE RIGHTS. 
 
 on the Gresliam Street property, in order to erect 
 thereon a warehouse; and in 1857, after the plaintiff's 
 buildings had been completed, the defendant proceeded 
 to erect his warehouse, and built up the eastern wall 
 thereof to such a height as to obstruct the whole of the 
 windows and lights in the premises of No. 107. This 
 wall was completed by the end of October, 1857. On 
 the subject of these buildings a correspondence took 
 place between the attornies for the plaintiff and defen- 
 dant dimng the months of September and October, 
 1857 ; each insisted that the other was exceeding his 
 rights, and notices of opposition were mutually given. 
 Before the 4th February, 1858, the plaintiff, by the 
 advice of counsel, caused the altered windows in the 
 building formerly the "Magpie and Pewter Platter," 
 to be restored to their original state as to size and 
 position, and he caused the new windows in the new 
 portion of the building to be blocked up by filling up 
 the spaces with brickwork. On the 4th February, 
 1858, the plaintiff's attorney gave notice to the defen- 
 dant, Tapling, to pull down the wall he had erected, 
 and to " restore Jones' premises to their former light 
 and air." The case found that the new windows of 
 No. 107 could not have been obstructed in a more 
 convenient manner than by building up a wall of 
 sufficient height on the defendant's premises. The 
 action, you will observe, was by the plaintiff Jones, for 
 obstructing the ancient lights belonging to No. 107, 
 the title to which was obtained while the windows 
 formed part of the ancient public-house known as the 
 " Magpie and Pewter Platter." There was a great 
 difference amongst the judges, both in the Court below 
 and in the Coiu't of Exchequer Chamber; but the 
 majority were in favour of the plaintiff. And on 
 appeal the House of Lords were of the same opinion 
 as the majority of tlie judges, but not for the same 
 reasons, and held tliat tlio defendant Tapling was 
 
 i
 
 LIGHT. 35,^, 
 
 liable to an action for obstructing tlie ancient lights of 
 No. 107, notwithstanding the fact that the plaintiff by 
 his alteration had considerably enlarged the windows. 
 Lord Westbury, then Lord Chancellor, in his judgment Jii(l,--inout 
 observes (,/) : "Before dealing with the present appeal it witbuiy. 
 may be useful to point out some expressions, which are 
 found in the decided eases, and which seem to have a 
 tendency to mislead; one of these expressions is the 
 phrase ' right to obstruct.' If my adjoining neighbour 
 builds upon his land, and opens numerous windows, 
 which look over my garden or my pleasure grounds, I 
 do not acquire from this act of my neighbour any new 
 or other right than I before possessed. I have simply 
 the same right of building or raising any erection I 
 please on my own land, unless that right has been by 
 some antecedent matter either lost or impaired, and I 
 gain no new or enlarged right by the act of my neigh- 
 bour. Again, there is another form of words which is 
 often found in cases on this subject, namely, the phrase 
 ' invasion of privacy by opening windows.' That is 
 not treated by the law as a wrong, for which any 
 remedy is given. If A. is the owner of beautiful 
 gardens and plea,sure grounds, and B. is the owner of 
 an adjoining piece of land, B. may build on it a manu- 
 factory with a hundred windows overlooking the 
 pleasure grounds, and A. has neither more nor less 
 than the right, which he previously had, of erecting on 
 his land a building of such height and extent as will 
 shut out the windows of the newly-erected manufac- 
 tory." " If," Lord Westbury continues, " in lieu of the 
 words ' the access and use of light to and for any 
 dwelling-house,' in the 3rd section of the statute, there 
 be read, as there well may, ' any v/indovv of any dwell- 
 ing-house,' the enactment, omitting immaterial words, 
 will run thus : — * When any window of a dwelling- 
 house shall have been actually enjoyed therewith for 
 (/) Page 305. 
 W.P. A A
 
 854 PRESciiirTiVE rights. 
 
 the full period of twenty years without interruption, 
 the right to such window shall be deemed absolute and 
 indefeasible.' Suppose then that the owner of a dwell- 
 ing-house with such a window, that is, with an absolute 
 and indefeasible right to a certain access of light, opens 
 two other windows, one on each side of the old window, 
 does the indefeasible right become thereby defeasible ? 
 By opening the new windows he does no injury or 
 wTong in the eye of the law to his neighbour, who is at 
 liberty to build up against them, so far as ho possesses 
 the right of so building on his land ; but it must be 
 remembered that he possesses no right of building so as 
 to obstruct the ancient window ; for to that extent his 
 right of building was gone, by the indefeasible right 
 which the statute has conferred." Again (.y) ," In the 
 present case an ancient window in the plaintiff's house 
 has been preserved and remained unaltered, during all 
 the alterations of the building ; and the access of light 
 to that window is now obstructed by the appellant's 
 wall. A majority of the Court below has held that the 
 obstruction was justified whilst the new windows, which 
 the plaintiff some time since opened, remained, but was 
 not justifiable when those new windows were closed, 
 and the house, so far as regards the access of light, was 
 restored to its original state. But on the plain and 
 simple principles I have stated, my opinion is that the 
 appellant's wall, so far as it obstructed the access of 
 light to the respondent's ancient unaltered window, was 
 an illegal obstruction from the beginning ; and I have 
 great difficulty in acceding to the reasoning tliat this 
 permanent building of the plaintiff in error was a legal 
 act when begun and completed, but has subsequently 
 become illegal through a change of purpose on the part 
 of the defendant in error. On such a principle, the 
 person who opens new lights might allow them to 
 remain until his neighbour, acting legally according to 
 (rj) rage 307.
 
 LIGHT. 355 
 
 these judgmeuts, lias, at great expense, erected a dwell- 
 ing-house, and then, by abandoning and closing the 
 new lights, might require his neiglibour's house to be 
 pulled down. I think the judgment ought to be 
 affirmed, but not on the ground or for the reasons 
 given by the majority of the judges in the Coiu"ts 
 below." The other learned judges. Lord Granworth 
 and Lord Chelmsford, concurred wdth Lord Westbury, 
 both in the decision of the case, and also in the 
 reasons on which he considered that the judgment 
 of the majority of the judges should be affirmed. 
 Lord Cran worth observed (A), " The opening of a window Judgment 
 is not an unlawful act. Every man may open any Cramvorth 
 number of windows looking over his neighbom-'s land ; 
 and, on the other hand, the neighbour may, by building 
 on his own land within twenty years after the opening 
 of the window, obstruct the light which would otherwise 
 reach it. Some confusion seems to have arisen from 
 speaking of the right of the neighbom' in such a case as 
 a right to obstruct the new lights. His right is a right 
 to use his own land by building on it as he thinks most 
 to his interest ; and if by so doing he obstructs the 
 access of light to the new windows, he is doing that 
 which affords no ground of complaint. He has a riglit 
 to build, and if thereby he obstructs the new lights ho 
 is not committing a wrong. But what ground is there 
 for contending that, because his building so as to 
 obstruct a new light would afford no ground of com- 
 plaint, therefore, if he cannot so build without commit- 
 ting a trespass, he may commit a trespass? I can 
 discover no principle to warrant any such inference." 
 
 You will observe that in this ease the plaintiff Jones 
 
 need not have stopped up his new windows, as he did 
 
 under the advice of counsel. The House of Lords held 
 
 that he had, like every one else, a perfect right to put 
 
 (/() Page 311. 
 
 A A 2
 
 356 
 
 PRESCRIPTIVE RIGHTS. 
 
 Burn. 
 
 Judf^ment of 
 Lord Justice 
 Giffard. 
 
 in new windows into his house ; and the fact that he 
 put in new windows was held by the House of Lords 
 to be no derogation of his right to light through the 
 ancient windows which remained. This case has been 
 followed in the Court of Chancery in the case of 
 StaiyJit V. Burn (/). In that case the defendant built 
 a wall to the north of the windows of the plaintiif's 
 house, by which his ancient lights were interfered with. 
 The plaintiff was at the same time enlarging his own 
 premises, whereby he diminished the light coming to 
 liis own windows, by shutting off some of the light 
 from the south and south-west. It was held, reversing 
 the decision of Vice-Chancellor Stuart, that the plaintiff 
 was entitled to an injunction to restrain the defendant 
 from building the wall. In the course of his judgment 
 Lord Justice Giffarcl, before whom the case came, 
 observed (/i:), "If there is a house with three ancient 
 windows, and it is desirable to add, at no great distance 
 from those three ancient windows, two other windows, 
 is it to be said that, because those two other windows are 
 to be placed in that position, the plaintiff is not to come 
 into Coui"t to preserve what has been decided, in TapUng 
 v. Jones, to be his clear legal right ? Such a conclusion 
 would not be either according to principle or to the 
 course of this Comi. I take the coui'se of this Court to 
 be that, when there is a material injury to that which is 
 a clear legal right, and it appears that damages, from 
 the nature of the case, would not be a complete com- 
 pensation, this Court will interfere by injunction." 
 
 Remedies. 
 Damagefl. 
 
 When lights are interfered with, the nature of the 
 remedy depends upon tlie amount and nature of the 
 injury sustained. In order to enable the plaintiff to 
 maintain an action for obstructing light, it is sufficient 
 to show that the easement cannot be enjoyed in so full 
 and ample a manner as before, or that the premises are, 
 (0 L. R., ', Ch. 1G3. (A) PugelGT.
 
 LIGHT. 357 
 
 to a sensible degree, less fit for the purpose of business 
 or occupation. For an obstruction of tliis kind the 
 owner of tlic lights may obtain damages (/). If, how- 
 ever, damages are not a suflicient remedy, and if it 
 appear that there will be a diminution of a substantial 
 amount of light, so as to substantially make the house 
 less comfortable, then an injunction will be granted to In junction, 
 restrain the defendant from building so as to diminish 
 the light. And, even if the building has been already 
 begun, yet, if the plaintiff loses no time, ho may obtain 
 a mandatory injunction requiring the defendant to pull Maudatory 
 down any building already erected, by which substantial ^"J™*^*^"^- 
 diminution has been made of the amount of light to 
 which the plaintiff is entitled. Cases of this kind are 
 often practically of great difficulty. Grenerally speaking, 
 if a street be narrow, and if a wall be erected to such a 
 height, as that a line drawn from the top of it to the 
 base of an ancient window, forms an angle of forty-five Forty-five 
 degrees with a horizontal line drawn also from the base ^ ^°^''^^^- 
 of the window ; then the wall will not be allowed to be 
 carried higher ; as any height beyond this would gene- 
 rally produce a substantial diminution of the light. On 
 tliis point the following remarks were made by Lord 
 Selborne, in the case of T/te Citt/ of London Brewery Lord Selbome 
 Cojnpaity y.Tenuant (ni) : " With regard to the forty-five ^ ^'f^ "-^ 
 degrees, there is no positive rule of law upon that Breim-y Co. 
 subject; the circumstance that forty-five degrees are left ^" '''"''^'^ ' 
 unobstructed being merely an element in the question 
 of fact, whether the access of light is unduly interfered 
 with ; but undoubtedly there is ground for saying that, 
 if the legislature, when making general regulations as 
 to buildings, considered that, when new buildings are 
 erected, the light sufficient for the comfortable occupa- 
 tion of them will, as a general rule, be obtained if the 
 buildings to be erected opposite to them have not a 
 greater angular elevation than forty-five degrees, the 
 
 (0 Sec JUcn V. Scckhaiii, L. R., [w) L. R., 'J Ch. 212, 220. 
 
 11 Ch. D. 790, 798.
 
 358 FRESCRirTlVE RIGHTS. 
 
 fact lliat forty-five degrees of sky are left unobstructed 
 may, under ordinary circumstances, be considered priiiul 
 facie evidence that there is not likely to be material 
 injury ; and, of course, that evidence applies more 
 strongly where only a lateral light is partially affected 
 and all the lights are not obstructed. I make that 
 observation not imagining that either at law or in this 
 Court any judge has ever meant to lay down, as a 
 general proposition, that there can be no material injury 
 to light if forty-five degrees of sky are left open ; 
 but I am of opinion that if forty-five degrees are 
 left, this is some pri)iid facie evidence of the light 
 not being obstructed to such an extent as to call 
 for the interference of the Court — evidence which 
 requires to be rebutted by direct evidence of injury 
 and not by the mere exhibition of models." This 
 case was followed by the present Master of the 
 iimhtitN. Eolls in the case of Ilackctt v. Baisa (y/), in which he 
 cites the passage of Lord Sclborne's judgment which I 
 have just quoted. In the case of Ilachett v. Baias, a 
 building Avas erected in a somewhat narrow street in the 
 city of London, and had already reached a height which 
 would subtend an augle of forty-five degrees at the foot 
 of the ancient lights of the plaintiff's houses on the 
 opposite side of the street. And it was held that the 
 })laintiff was entitled to an injunction restraining the 
 raising of the new building to a greater height. So 
 much then as to the right to light. 
 
 ■^' Light and air generally go together ; and that which 
 
 obstructs one usually obstructs the other. It is not, 
 rti;,^lit to air howcvcr, always so. A right to air, as distinguished 
 men't. from a right to light, is not an easement, and cannot be 
 
 claimed by long enjoyment, either from time imme- 
 morial or within the periods limited by the Prescription 
 Act (o), with respect to the enjo}-mcnt of easements. 
 
 {») L. R., 20 E(i. 101. (o) Stut. 2 & 3 Will. IV. c. 71.
 
 AIR. 359 
 
 This was decided in the case of Webb v. Bird (p). In JFcbb v. £ird. 
 that case the owner of a windmill, to the working of 
 which a current of air of course is necessary, brought an 
 action against the defendants for erecting a school-house 
 within twenty-five yards of the mill ; whereby they 
 obstructed the current of air which would have come 
 from tlie westward ; so that the working of the mill 
 was hindered, and the mill became injured and deterio- 
 rated in value. But the Court of Exchequer Chamber, 
 agreeing in opinion with the Court of Common Pleas, 
 held that the right to the passage of air is not a right to 
 an easement wdthin the meaning of the 2 & 3 Will. IV. 
 c. 71, s. 2. The Court were also of opinion that no 
 presumption could arise of a grant of a right to the air 
 from its uninterrupted enjoyment as of right for many 
 years. The Court remarked ((/), "In the present case 
 it would be practically so difficult, even if not absolutely 
 impossible, to interfere with or prevent the exercise of 
 the right claimed, subject, as it must be, to so much 
 variation and uncertainty, as pointed out in the judg- 
 ment below, that we think it clear that no presumption 
 of a grant, or easement in the nature of a grant, can be 
 raised from the non-interruption of the exercise of what 
 is called a right, by the person against whom it is 
 claimed, as a non-interruption by one who might prevent 
 or interrupt it." This case involves the important 
 principle, now well recognized, that an easement cannot Easement 
 be gained by usage, however long, of that which is not ta^ed by 
 actionable, and which cannot be prevented. On the usage not 
 
 .,., 1 T 1 ' J jiv actionable, 
 
 same principle it was held, m a recent case, that a con- and which 
 fectioiier, who had for upwards of twenty years used a cannot be 
 
 ' \ . . , . , prevented. 
 
 pestle and mortar in his back premises gamed no right 
 thereby to continue the user after his neighbour, a 
 physician, had erected a consulting-room in his adjoining 
 back premises, to which the noise and vibration occa- Noise and 
 
 vibration. 
 {p) 13 C. B., N. S. 841. See C. P. D. 172. 
 also Bryanf v. Lcfevre, L. R., 4 (^) Page 843.
 
 3G0 PRESCRirTlVE KIGHTS. 
 
 sioncd ]jy tlio use of the pestle and mortar became then 
 for the first time an actionable nuisance (y). 
 
 But the Court will prevent the mere obstruction of air 
 Nuisaucc. to an ancient window, in cases where the obstruction 
 Dintv.Aiicdon would amouut to a nuisance. As in the case oi Dent v. 
 Marl Co. AkcHoii Mcu't CoDipaiu/ (s), in which part of the case 
 
 was this, as mentioned in the judgment of Vice-Chan- 
 cellor Wood (now Lord Ilatherley) (/) : — There was a 
 staircase, lighted in a certain manner by windows, 
 which when opened admitted air. The defendants were 
 about to shut up these windows, as in a box with the lid 
 off, by a wall about eight or nine feet distant, and 
 some forty-five feet high ; and in that circumscribed 
 space they proposed to put three water-closets. The 
 Court remarked there were difficulties about the 
 case of air, as distinguished from that of light ; 
 but the Court has interfered to prevent the total 
 obstruction of all circulation of air ; and the intro- 
 duction of three water-closets into a confined space of 
 this description was, in the opinion of the Court, an 
 interference with air, which the Court would recognize 
 on the ground of nuisance. " This is perhaps," the 
 Vice-Chancellor remarks, " the proper ground on which 
 to place the interference of the Court, although in decrees 
 the words * light and air ' are often inserted together, 
 as if the two things -went pari pansa.'' 
 
 Tews. The next casement to which I wish to call your 
 
 attention is that of a right to a pc/c in a parish church. 
 In some places pcAvs are bought and sold in a manner 
 entirely contrary to law. In some few churches or 
 chapels there may be special acts of parliament by 
 which pews may be bought and sold, but such cases are 
 very rare. Tlie legal right is in the Ordinary to arrange 
 the seats of the church as he thinks best for the accom- 
 
 {)■) Sluryca v. BrUhjmaii, L. 11., (v) L. R., 2 E(|. 2138. 
 
 11 Ch. L>. 8.J2. {I) Ta-c 252.
 
 TEAV. 
 
 3G1 
 
 niocTatiuii of tlio parlishioiiors for wlioso Leiiofit ilio 
 cliurcli is supposed to be built ; but iu some cases a mau 
 may have a riglit to a pew by reason of a grant from Taculty. 
 the bishop, called ^faculty ; and in some cases a prescrip- rrcscriptiou. 
 tive right to a pew, as appurtenant to an ancient mes- 
 suage in the parish, may undoubtedly be established by 
 proper evidence. The evidence, however, must consist Evidence, 
 not only of the occupation of the pew for a time which 
 will afford presumptive evidence of immemorial enjoy- 
 ment, but also of proof of the repairs of the pew having Repairs, 
 been invariably paid for by the person who claims the 
 pew as appurtenant to his dwelling-house, or by his 
 predecessors in title. The law on this subject will be 
 found in the recent case of Crkp v. Martin (it). In that Crisp v. 
 case it was held that a parishioner who claims a legal 
 right by prescription to a pew in the nave of his parish 
 church, must, in order to displace the general right of 
 the Ordinary, not only show that the pew has been 
 occupied by him or his predecessors in title, in respect 
 of an ancient house in the parish, for a period more or 
 less extended ; but must also prove, if any alteration or 
 repau- of the pew has been necessary, that such repairs 
 or alterations were executed at the expense of those 
 who at the time claimed the prescriptive right to it. 
 The case of Crisj) v. Martin contains some remarks of 
 the learned judge. Lord Penzance, with regard to the Whether 
 question whether the claim to a pew in the nave of a "^^^^^^. 
 
 ■■■ _ ... . 1 rescnption 
 
 parish chm'ch is within the second section of the Pre- Act. 
 scription Act, 2 & 3 Will. IV. c. 71. In the case in 
 question it was immaterial whether the claim was within 
 or without the Act, because the objection to the pre- 
 scription there was, that the evidence was only evidence 
 of occupancy, and nothing else, and that that alone did 
 not constitute evidence of prescription. But if there 
 had been an attempt to show that the right had not 
 existed from time immemorial, inasmuch as it had been 
 (^0 L. R., 2 P. D. 15.
 
 362 PRESCRI^Tl^'E rights. 
 
 first enjoyed, say a few years later thau the first jeav 
 of the reigu of Richard the first, then the question 
 would have arisen whether or not a claim to a pew in a 
 parish church is an easement within that statute. And 
 the learned judge expressed an opinion (./■) that the Pre- 
 scription Act does not apply in a case like the present, 
 or indeed he might say, in any case of a pew claimed 
 by prescription. The point, however, has never been 
 decided. 
 
 Right of Ji right similar to that of a pew is a rio-ht of burial 
 
 bunal lu ;i . " . . ^ ° 
 
 vault. m a particular vault, m a church or churchyard. Thus 
 
 it is laid down in Corny ns' Digest (//), that a man may 
 prescribe that he is tenant of an ancient messuage, and 
 ought to have separate burial in such a vault within the 
 
 liri/an v. churcli. And in the modern case of Bryan v. Whistler {z) 
 
 "* ^^ ' it was held that an exclusive right of burial in a vault 
 is an easement, and as such an incorporeal hereditament 
 which, according to the ordinary rule of law, cannot 
 be granted by parol or by mere writing, without a 
 deed. 
 
 Amongst other easements which may be referred to 
 
 Eaves. is that of allowing the AN'ater from an overhanging eave 
 
 to drip upon a neighbour's land. The erection of a 
 
 house with such an eave is a nuisance which may be 
 
 abated by the neighbour, or in respect of which he may 
 
 bring an action, even before any water actually falls (r/). 
 
 Request must But it Avas hold in Fen ruddock's case {h) that if the 
 
 iiliouee to house has come to the hands of an alienee, by whom 
 
 lance™ ^^"" ^^^^ eaves were not erected, a request must be first made 
 
 to him to reform the nuisance before any action can be 
 
 brought against him. If no abatement be made, or 
 
 (.r) Tiige 27. («) J'"!/ v. Prentice, 1 C. B. 
 
 [ij] Title Cemetery (B). 828. 
 
 (r) 8 Barn. & Cress. 288. {b) 5 Rep. 100 b. Sec Jo)ws v. 
 
 Williams, 11 Mee. & Wels. 176.
 
 PRESCRirriVE IJAlilLlTIES. 363 
 
 action broiiglit, an easement of dripping is in process of 
 
 time created. Anotlier easement is that of having a 
 
 post, signboard, or sucli other chattel, erected on one's Siguboard. 
 
 neighbour's hmd, or against his wall (r). 
 
 I may add, in conclusion, that there are such tilings rrcscriptive 
 as prescriptive liabilities, as well as prescriptive rights. 
 Thus there may be a prescriptive liability to repair a 
 bridge. Lord Coke lays it down in his Second Insti- Bridge, 
 tute (c/), that some persons are bound to repair bridges 
 by reason of their tenure of lands or tenements, some 
 by reason of prescription only. But herein, he observes, 
 is a diversity between bodies politic or corporate, spiritual 
 or temporal, and natural persons ; for bodies politic or 
 corporate, spiritual or temporal, may be bound by usage 
 and prescription only, because they are local and have 
 a succession perpetual ; but a natural person cannot bo 
 bound by the act of his ancestor, without a lien or bind- 
 ing, and assets. So a township, as distinguished from the 
 parish of which it forms part {e), may be liable by pre- 
 scription to repair all the highways within the township, Highwaj^s, 
 of which an instance will be found in the case of T/ic JXuL'ip.^^ 
 luiig V. T/ie Inhahitania of ISIipJfickl (/'). So a man may 
 be bound by prescription to repair a wall against the Sca wall, 
 influx of the sea; and it was resolved in KeigJdeifs case {g), Kcighiofs 
 that if one is bound by prescription to repair a wall '^"'^^' 
 contra Jiuxuiii maris, and he keeps the wall in good 
 repair, and of such height and as sufficient as it was 
 accustomed ; and by the sudden and unusual increase 
 of water, salt or fresh, the walls are broken or the water 
 overflows the walls ; that in this case no fault was in 
 him who ought to repair the Avail, and that the loss 
 
 (r) Lancaster v. Eve, 5 C. B., Ileicctt, 8 Q. B. 913. 
 N. S. 717; Hoare v. MotropolUan (d) Page 700. 
 
 IJonrd of Works, L. R., 9 Q. B. (e) Ante, p. 40. 
 
 296; Moody v. Stegcjles, L. R., 12 \f) i T. Rep. 106. 
 
 C'li. D. 261. Sec ako Wood v. (y) 10 Rep. 139.
 
 364 
 
 PRES('Kll>TnK mGHTS. 
 
 ought to be borne ratcably by all persons having lands 
 or tenements who might sustain damage by the over- 
 flow. A man ma}^, however, be liable by prescription 
 to repair a sea wall, though destroyed by extraordinary 
 
 The Queen v. tempest. Tins was decided in the case of The Queen v. 
 LeigJi{h). There is a very recent case on this subject 
 
 Jhidson V. in the Court of Appeal, namely, Hudson v. Tabor {{). In 
 this case it was held that the mere fact that each 
 frontager had alwaj's maintained the wall in front of his 
 land, and that no one had thought it necessary to make 
 a wall to protect his land from tlie water which might 
 come from his neighbour's land, was no sufficient evi- 
 dence to establish a prescriptive liability on the part of 
 the defendant to maintain the wall for the protection of 
 the adjoining landowners. It was also held that by the 
 common law, apart from prescription, no liability to 
 repair the sea wall Avas cast on the defendant as a 
 frontager. The costs of a sea wall ought to fall rateably 
 on all who need its protection, and not exclusively on 
 the owner of land, perhaps a narrow strip, which im- 
 mediately faces the sea. (/.■) 
 
 (h) 10 A. & E. 398. (/,•) See 3Ivrlaml v. Cool; L. R., 
 
 (0 L. E., 2 Q. B. Div. 290. 6 Eq. 252.
 
 ( 3G5 ) 
 
 INDEX. 
 
 A. 
 
 Abandoxment, 219. 
 
 evidence of, 220. 
 
 of common aj)pen(iant, IGG. 
 
 Abatemext of nuisance, 3G2. 
 
 Acquiescence in inteiTiiption of user, 182. 
 
 AcTiox, enjoyment next before some. — See User. 
 
 AcTioxABLE injury may establish, a prescriptive right, 340, 359. 
 
 Additions, statute of, 40. 
 
 Admeasueexext of pasture, writ of, 44 — 4G, 121, 122. 
 
 Affirmative easements, 304, 305. 
 
 Aftermath, prescription for, 20. 
 
 Agistmext of mast, 233. 
 
 Agistors of the forests, 1G8, 232. 
 
 Agreemext, light enjoyed by, 348, 349. 
 
 Air, right to, 358— 3G0. 
 
 Allotmext, lord's right to, 150. 
 
 of common meadows, 90. 
 
 AxCESTORS, user by a man and his, 1, 9 — 12. 
 
 AxciEXT demesne, court of a manor of, 273. 
 house, 18G, 187, 3G1, 3G2. 
 lights. — See Light. 
 
 AxGLE of forty-five degrees, 357, 358. 
 
 Animals, commonable. — See Commoxable. 
 what can be estrays, 28G. 
 what can be distrained damage feasant, 287. 
 in a pound, 288,
 
 oGG INDEX. 
 
 AxiMALS escaping in case of -^-reck, 290. — And see Beasts axd 
 Fowls. 
 
 ArrEXDAXT, common.— Sec Common ArrEXDAXT. 
 land cannot be, 2. 
 easements, 302, 315. 
 
 ArPOETloxMEXT of rig'M of common, 167. 
 
 of common appurtenant, 183. 
 
 ArpROYEMEXT, 103 — 149, 245, 246. 
 Ly owner of soil, 113. 
 not against common in gross, 113, 184. 
 against common apjjnrtenant, 113. 
 without leaving sufficient common, 114. 
 notice of intended, 118, 
 
 onus on lord to prove sufficiency, 118, 123, 124. 
 against copyholders, 123. 
 where custom to grant or inclose waste, 125, 
 
 128—132. 
 rights of common over and in respect of land 
 
 approved, 132. 
 commoner may break down fence if common 
 
 insufficient, 135. 
 only against common of pasture, 137, 341. 
 against rights of estovers, turbarj', or digging 
 
 sand or gravel, 138—142, 197, 198. 
 under custom leaving sufficiency, 207. 
 
 ArruUTEXAXCES pass by conveyance of tenement, 168, 169. 
 how conveyed, 315, 
 
 ArpuuTEXAXT, right of common. — Sec Commox Appuutexaxt. 
 land cannot be, 2. 
 several fishery maj' be, 264. 
 franchises, 271. 
 fold course, 278. 
 easements, 302, 315. 
 a pew may be, 361. 
 
 Akable land, 32, 51. 
 
 land ancient!}', 183. 
 land of the mark, 58, 59. 
 mark, 97, 98, 100. 
 
 Aptificial watercourses, 339—342.
 
 INDEX. 807 
 
 Assarts, 133, 231. 
 
 Assignee, request to, to reform nuisance, 302, 
 Assise of novel disseisin, 103, 111, 11,"). 
 Assises, the hook of, lid. 
 AsTOX, vill of, 86—96, 102, 246—249. 
 Attachmexts, court of, 234. 
 Awards, defects in, 2o4. 
 
 B. 
 
 BAKEnousE, riglit to have bread baked at lord's, 278—280. 
 
 Beast gates, 81, 82, 83. 
 
 keeper, inclosure for the dwelling of, 115, 117. 
 
 Beasts of forest, 230. 
 of cbaso, 236. 
 of park, 238. 
 of warren, 238, 239. 
 what maybe estrays, 286. 
 what may be distrained damage feasant, 287. 
 
 Bernewood, forest of, 52. 
 
 Bill of peace, 160 — 165. 
 
 BONAWAVIATA, 281, 282. 
 
 Borough, 42. 
 
 Botes, 18. — And see Estovers. 
 
 Brackens, right to cut, 189. 
 
 Brander, 102. 
 
 Bridge, prescriptive liability to repair, 303. 
 
 Brushwood, right to take, 201, 202, 209. 
 
 Building, effect of, 35. 
 
 obstruction of light by. — See Obstruction. 
 support for. — See Support. 
 
 Burial, right of, in a vault, 362. 
 
 Bye-laws, vills may make, 47. 
 
 made by commoners, 156 — 158.
 
 368 INDEX. 
 
 c. 
 
 Calendar, correction of the, 74, 7.1. 
 
 Case, action on the, 122. 
 
 Cattle-gates, 7S, 81 — 84. 
 
 Chase, 23G, 237. 
 
 Chattel, easement of erecting on another's soil, 3G3. 
 
 CniiiiNAGE, clriminagium, or cJn'mmagivm, 325. 
 
 CirniNEYS, estovers where new, 187. 
 
 China clay included in term "minerals," 220. 
 
 CnrncH, inclosure for, 148. 
 
 rights to pews in, 3G0— 3G2. 
 right of burial in a vault in, 3G2. 
 
 CnLmCHYAED, inclosure for, 148. 
 
 right of burial in a vault in a, 3G2. 
 City, 42. 
 
 Clay, prcscrii^tion for taking, 18. 
 lord may dig for, 1<51, 152. 
 right to dig, 203, 204, 20G, 208. 
 exception of, 220. 
 
 Coal, lord may mine for, 1 .5 1 . 
 
 right to get, 203, 207— 209.— And see Mines and 
 
 Minerals. 
 mines rateable to the poor, 225. 
 
 CoATE, hamlet of, G7, 8G— 9G, 240—249. 
 
 Cognizance of pleas, 3. 
 
 Commissioners, inclosure, 249, 250, 252, 254. 
 
 Common aj-jpendant, 31, 121, 15G. 
 
 is of common right, 3G. 
 origin of, 37—39, 51, 57, 112. 
 how lost, 1G5 — 1G7. 
 ajiportionment of, 1G7. 
 cannot become common in gross, 184. 
 approjjriation of parts of, 155, 156. 
 appui-tenant, 31, 113, 114, 116, 121, IGS— 172, 199,203, 
 207, 259. 
 not apportioned, 1G7. 
 against common right, 1G8. 
 grant of, 168-170.
 
 INDEX. 369 
 
 Common appurtenant, presumption of lost grant of, 170 — 172. 
 claim of, by prescription, 172. 
 extinguishment of, 182. 
 apportionment of, 183. 
 alienation of, without tenement, 184. 
 by reason of vicinage, 47, 48, 50, 72, 74, \8'\, 184. 
 differs from a common field, 67. 
 driving the, 151. 
 fields, 40, 06—70, 86. 
 
 cultivation of, 67. 
 custom to inclose, 71 — 74, 77. 
 regulation of, 76, 77. 
 exchange of lands in, 77, 251. 
 inclosure of, 77 — 79, 251. 
 in India, 98. 
 
 agreement for inclosure of, 247. 
 for beasts in a vill, 116. 
 meadows, 79, 90. 
 of estovers. — See Estovers. 
 of pastiire, 31—43, 137, 141. 
 
 belonging to vills, 44 — 56. 
 at particular times in the year, 75. 
 in a forest, 232. 
 of piscary, 137, 259. 
 of other matters than pasture, 186. 
 of things not renewable, 203 — 212. — And see Renew- 
 able. 
 of things renewable, 186 — 203. — And see Renewable. 
 of turbary, 137, 138, 140—142. 
 of shack, 68, 71, 72. 
 pastures, opening and shutting of, 81. 
 
 power to pasture sheep on, instead of cattle, 81 , 
 power to stint number of sheep on, 81. 
 right of, 12. 
 
 how claimed by copj-holder, 17. 
 
 is a tenement, 30. 
 
 in gross, 31, 83, 107, 113, 121, 184. 185, 199, 
 
 203, 207, 259. 
 in respect of a house, 35. 
 extinguishment of, 35, 109. 
 of a township in parks and forests, 51, 
 exercised by parishes, 52 — 55. 
 in a forest, 55, 143, 144, 236. 
 W.P. B B
 
 370 INDEX. 
 
 Common, right of, inclosure of lauds subject to, 78. 
 
 cattle-gate is sometimes, 83. 
 
 over and in respect of land approved, 132. 
 
 of copyholder grantee of waste, 132 — 134. 
 
 belonging to vills, 146. 
 
 where land given as site for school, 149. 
 
 barred by adverse possession, 154. 
 
 stinted, 156. 
 
 none for very small parcel of land, 157. 
 
 suspension of, 166. 
 
 how lost, 165 — 167. 
 
 of copyholder enfranchising, 170. 
 
 user over part of waste, 178. 
 
 not rateable to the poor, 202. 
 
 benefits of inclosure, 245. 
 
 compensation where lands taken by railways, 
 &c., 254. 
 
 fold course, 277, 278. 
 sufficiency of, proof of, 118—122, 124, 125. 
 
 when not required to be left, 114. 
 surcharge of, 121, 122. 
 tenants in, 2. 
 
 Commonable cattle, 31, 38, 168. 
 
 in a forest, 232. 
 
 Commoners may break down fence, when, 135. 
 remedies of, 135, 160 — 165. 
 in a forest, 143, 144. 
 may distrain stranger's cattle damage feasant, 287. 
 
 Commons Act, 1876.— See 39 & 40 Vict. c. 56. 
 metropolitan, 255, 256. 
 
 Commorant, persons, 272. 
 
 Compensation, where common lands taken by railways, «S:c., 254. 
 
 Consent, light enjoyed by, 348, 349. 
 
 Conservators of the peace, no prescription to make, 3. 
 
 Constable, 42, 102. 
 
 Continuous easements, 305, 319, 321. 
 
 Conversion of arable land, 32. 
 
 Conveyance of land, easement created by, 322, 323. 
 
 Copper mines rateable to the poor, 226.
 
 INDEX. 371 
 
 Copy of Court Roll, what rights may be hekl by, 20. 
 
 Copyhold, custom to grant waste as, 123, 125, 12S, 120—13-1. 
 custom, for tenant to inclose waste as, 12(3 — 129. 
 tenements granted oiit of wastes, 130, 132 — 134. 
 court, 273. 
 
 Copyholder, pleading by, 2, 16, 17, 24. 
 prescription by, 16, 17. 
 approvement against, 123. 
 grantee of waste, rights of, 129, 132 — 134. 
 enfranchising, 170. 
 custom for, to dig clay out of his own tenement, 
 
 206. 
 possession of, 213 — 216. 
 
 Copyholds, waste hold, 133. 
 
 timber on, 213, 214. 
 
 mines in and under, 213 — 216, 223. 
 
 Coroner, no prescription to make, 3. 
 
 Corporation, no prescription to make, 3. 
 prescription by a, 9, 12. 
 grant of common to, 199, 201. 
 by prescription, 271. 
 prescriptive liabilities of, 363. 
 
 Corporeal hereditaments, no prescription for, 2, 3. 
 
 several herbage and pasture are not, 
 30. 
 
 Cote. — See Coate. 
 
 CoucHANT. — See Levant and Couchant. 
 
 Court leet, 5, 50, 271—273. 
 village, 59. 
 of the markmen, 62. 
 of a forest, 234. 
 of the sheriff's tourn, 272. 
 baron, 273. 
 copyhold, 273. 
 
 Cowherd, 102. 
 
 Crown grants in derogation of forestal rights, 197. 
 
 CURSUS OVIUM, 277. 
 
 Curtilage, inclosure for necessary, 114 — 117, 122, 
 
 B B 2
 
 372 INDKX. 
 
 Custom differs from prescription, 1, 279, 280. 
 definition of, 2. 
 
 coiDyholder should allege, against his lord, 2, 17. 
 alleged by inhabitants, 13—15. 
 to inclose common field land, 71 — 74, 77. 
 of the sixteens, 93 — 96. — And see Sixteens, 
 to grant waste as copyhold, 123, 125, 128, 129—134. 
 to inclose waste, 125, 126, 128, 129—132. 
 to approve against turbary or estovers, 141, 198. 
 to hold lawful sports, 148, 149. 
 for lord to dig clay pits without leaving sufficieni 
 
 herbage, 152. 
 to appropriate parts of common, 155, 156. 
 to make bye -laws, 157. 
 to allot and inclose moss dales, 187. 
 must not be indefinite or uncertain, 191, 192. 
 profit d 2>re)idre cannot be claimed by, 194. 
 alleged for poor householders, 195. 
 for tenants and occupants, 196. 
 in a royal forest, 196. 
 for copyholder to dig clay out of his own tenement, 
 
 206. 
 to dig for coal on waste lands, 207. 
 to approve leaving sufficiency, 207. 
 to enter upon copyholds and work mines, 214, 215. 
 of tin-bounding, 226. 
 of mining in Cornwall and Devon, 226. 
 
 in the forest of Mendipj), 226. 
 
 in the forest of Dean, 227. 
 
 in Derbyshire, 227. 
 for inhabitants to fish, bad, 269. 
 of frank -foldage, 274 — 277. 
 to bake bread at lord's bakehouse, 278, 279, 280. 
 to grind corn at lord's mill, 279, 280. 
 toll due by, for way through forest, 325. 
 
 D. 
 
 Dairy, inclosure ff)r, 114. 
 
 Damage feasant, 287. 
 
 Damages for obstruction of light, 356, 357. 
 
 Dean, forest of, 177.
 
 INDEX. 373 
 
 Dedication of highway, partial, 329. 
 
 Demi-vills, 42. 
 
 Deodands, 3, 293. 
 
 Deviation from a way, right of, 328, 329. 
 
 Devise, easements passing by implication upon a, 319. 
 
 Disability, persons under, 175, 176, 349. 
 
 Discontinuous easements, 305, 319, 323, 324. 
 
 Distrain, who may, 20. 
 
 Distress, 122. 
 
 of cattle damage feasant, 287. 
 of inanimate objects, 287. 
 
 Diversion of water, 334—336, 339—347. 
 
 Dogs, 286, 287. 
 
 la wing of, 230, 234. 
 court of regard of, 234. 
 
 Dominant tenement, 18, 301. 
 
 what easements pass by conveyance of, 
 315. 
 
 unity of possession, 316 — 319. 
 
 owner of, may make repairs, 322, 323. 
 328. 
 
 rights of way upon a division of, 326. 
 Donkeys, 168. 
 
 Drain, rights of grantee of, 322, 323. 
 Driving the common, 151. 
 Duties, prescriptive, 363, 364. 
 
 E. 
 
 Easements, 301 — 363. 
 
 acquisition of, by user from time immemorial, 
 305—308, 348. 
 by presumption of lost grant, 308. 
 under the Prescription Act, 309 — 
 
 314. 
 by express grant, 315. 
 by general words, 315 — 319, 323, 
 324.
 
 374 INDEX. 
 
 Easements, acquisition of, by implied grant, 319, 320, 321, 322. 
 by user which is an actionable 
 injui-y, 340, 359. 
 affirmative and negative, 304, 305. 
 appendant or appui'tenant pass by conveyance of 
 
 land, 315. 
 continuous and discontinuous, 305, 319, 321, 323, 
 
 324. 
 created by conveyance of land, 322, 323. 
 definition of, 301. 
 existing modes of claiming, not taken away by 
 
 Prescription Act, 306, 307. 
 extinguishment of, 316. 
 implication of reciprocal, 322. 
 
 of necessary auxiliary rights, 322, 323. 
 must relate to land, 302 — 304. 
 of necessity, 319, 321, 323, 324. 
 passed by feoffment, 315. 
 
 by parol demise, 316. 
 persons under disability, 311, 349. 
 prescription for, 305 — 314. 
 quasi easements, 316, 317, 319, 321, 324. 
 reservation of, whether implied, 320, 321, 322. 
 right to take water from a spring, 18, 305. 
 
 of support for buildings by adjacent land, 
 
 225. 
 of way, 305, 309—314, 316, 318, 319, 323, 324 
 
 —330. 
 to light, 305, 306—308, 310, 320, 348—358. 
 to water and watercourses, 305, 309 — 314, 
 
 317, 331—347. 
 to air, 358—360. 
 
 to pollute a watercoui'se, 336 — 342. 
 to discharge refuse water, 340. 
 to a pew, 360—362. 
 of burial in a vault, 362. 
 of water di-ipping from eaves, 362. 
 of erecting chattel on the land of another, 
 363. 
 upon a severance of tenements, 319, 320, 321, 322. 
 
 Eaves, 362. 
 
 J'jJECTMENT, who might bring, 20. 
 
 will lie for a cattle gate, 82.
 
 INDEX. 375 
 
 Elegit, tonant by, 16. 
 Embracery, 06. 
 
 Enclosure — see Inclosure. 
 
 Encroachment upon forest, 231. 
 
 of the sea, 266, 267^ 
 
 Enfranchisement of copyholds, 170. 
 
 Enjoyment — see User. 
 
 Epping Forest, 54, 236. 
 
 Estovers, 18, 134, 137, 138, 139, 141, 186, 197, 198, 199, 203, 
 209, 237. 
 inclosure, 245. 
 
 Estrays, 56, 286—289. 
 
 Evidence, co\irse of, 4, 5. 
 
 of immemorial enjoyment by a man and his ances- 
 tors, 10. 
 
 of common for all commonable cattle, 31. 
 
 of sufficiency of common, 119 — 122, 124, 
 
 of ownership of soil, 155. 
 
 of common for cattle levant and couchant, 157, 158, 
 160. 
 
 of abandonment of right of common, 166. 
 
 of feoffment, 169. 
 
 in claiming common appxu-tenant, 171, 172. 
 
 of user of right of common, 178, 
 
 of acquiescence in interruption, 182. 
 
 of abandonment of right to get mines, 220. 
 
 that no alleged lost grant was in fact made, 225. 
 
 of user from time immemorial, 273, 307, 308. 
 
 effect of, of user for less than number of years men- 
 tioned in Prescription Act, 311. 
 
 of injury to right of light, 357, 358. 
 
 of right to a pew, 361, 362. 
 
 of liability to rejaair sea-wall, 364. 
 
 Exception of mines, 216, 218, 220. 
 
 of things only gotten by open working, 220. 
 
 Exchange of lands in common fields, 77, 251. 
 
 by order of Inclosure Commissioners, 254. 
 
 Exigent, those that be put in, 3.
 
 ;i76 INDEX. 
 
 Extinguishment of right of common, '35, 166, 167, 169, 170. 
 of common appurtenant, 182. 
 of easements, 1316. 
 
 Pairs, 271, 293—299. 
 Falda, libera, 276. 
 
 FALDiE, SECTA, 275. 
 
 FALDAGrcM, 274, 277. 
 
 Fee simple. — See Tenant in Fee Simple. 
 
 Felons, 3. 
 
 goods of, 3, 293. 
 prosecution of, 282, 283, 284. 
 
 Fence mouth, 232. 
 
 Feoffment, 169. 
 
 carried rights appendant and appuilenaut, 315. 
 
 Fern, right to take. 189, 190, 199. 
 
 Field reeve, 76. 
 
 Fire bote, 18. 
 
 Fire-clay, right to get, 208, 209. 
 
 Fishery. — See Fishing. 
 free, 11, 259. 
 
 Fishes, royal, 271, 292. 
 
 Fishing, right of, 18, 259—270. 
 
 common of piscary, 259. 
 
 a several fishery, 259 — 265, 268, 270. 
 
 rateable to the poor, 265. 
 
 in the sea, 265, 266. 
 
 in tidal navigable rivers, 265, 266. 
 
 of the public, 265, 266, 268, 269. 
 
 in private waters, 268 — 270. 
 
 Fleet, warden of the, 94. 
 
 Flotsam, 290. 
 
 Fodder for cattle, 189, 190. 
 
 Fold course, 274, 277, 278. 
 suit of, 275.
 
 INDEX. ^^77 
 
 FoLDAGE, frank, 271, 274 — 277, 278. 
 
 FoEESHORE, 265, 266, 267, 291. 
 
 Forest, 228—236. 
 
 rights of township to common in, 51, 52. 
 
 of Bernewoocl, 52. 
 
 of Essex, Great, 52. 
 
 Hainault, 52, 54, 196. 
 
 Epping, 54, 236. 
 
 marks, 54, 55, 56. 
 
 rights of commoners in a, 143, 144. 
 
 of Dean, 177, 227. 
 
 royal, 196. 
 
 of Mendipp, 226. 
 
 definition of, 228, 229. 
 
 grant of, 229, 236. 
 
 what are beasts of, 230. 
 
 laws, 230. 
 
 assart, 231. 
 
 purpresture, 231. 
 
 fences, 231. 
 
 buildings within, 232. 
 
 common of pasture in, 232. 
 
 fence month, 232. 
 
 agistors, 232. 
 
 pannage in, 232. 
 
 purlieus of, 233. 
 
 hunting by purlieu man, 233. 
 
 courts and officers of, 234. 
 
 16 Car. I. c. 16. .235. 
 
 the New, 236. 
 
 king could not make, without landholders' consent, 
 
 237. 
 toll for having a way through, 325. 
 
 FoRESTAl, rights, grants by Crown in derogation of its, 197. 
 
 Foresters, 234. 
 
 Forfeiture, 293. 
 
 Forty-day Coui-t, 234. 
 
 Forty-five degrees, angle of, 357, 358. 
 
 Forty years' user, 309 — 314. 
 
 Fowling, 244.
 
 ;i78 INDEX. 
 
 Fowls of warren, 238, 239. 
 
 what may be estrays, 286, 
 
 Feakchises, 228, 271—300. 
 
 enumeration of, 228, 271. 
 
 a forest, 228—236. 
 
 a chase, 236, 237. 
 
 a park, 238. 
 
 free warren, 238 — 240. . 
 
 a court leet, 271—273. 
 
 infangthief and outfangthief, 274. 
 
 of having a gallows, 274. 
 
 a hundred, 274. 
 
 of keeping a gaol, 274. 
 
 frank foldage, 274—277. 
 
 to have bread baked at lord's bakehouse, 278. 
 
 to have corn ground at lord's mill, 279. 
 
 treasure-trove, 280, 281. 
 
 waifs, 281, 282, 283. 
 
 estrays, 286—289. 
 
 wrecks of the sea, 289—292. 
 
 royal fishes, 292. 
 
 goods of felons, 293. 
 
 deodands, 293. 
 
 fairs and markets, 293 — 299. 
 
 toUs, 293—300. 
 
 Frank foldage, 271, 274—277. 
 
 Frank pledge, view of, 271. 
 
 Frank pledges, 42. 
 
 Fraxjd never presumed, 3. 
 
 Free fishery, 11, 259. 
 
 Free warren, 238—240, 243. 
 
 Freeholds, mines in and under, 213, 216. 
 
 Freestone, right to get, 208. 
 
 included in term "minerals," 220. 
 
 Fresh suit, 281. 
 
 Frith man, 84. 
 
 Fuel, prescription for right to take, 186, 187, 189, 190, 199. 
 
 Fugitives, 3. 
 
 Furze, 186, 188, 189, 190, 199, 209.
 
 " INDEX. 379 
 
 G. 
 
 Gales, 177. 
 
 Gallows, privilege of having a, 274. 
 
 Game, 238, 239, 240—244. 
 
 Gaol, francliise of keeping, 271, 274. 
 
 Gated pastures, 78, 81. 
 
 Gates, cattle, beast or other, 81. 
 
 Geese, 168. 
 
 General words, grant of easements by, 315 — 319, 323, 324. 
 
 Glebe, inclosure for, 148. 
 
 Goats, 168. 
 
 Goods of felons, 293. 
 
 Gorse, 186, 189, 190. 
 
 goysters, 56. 
 
 Grant of a franchise. — See Franchises. 
 
 presumption of lost. — See Lost Grant. 
 
 hereditaments which lie in, 3. 
 
 when consistent with prescription, 7. 
 
 in confirmation of prior right, 8. 
 
 of prescriptive right gained by immemorial enjoyment 
 
 by a man and his ancestors, 10. 
 of common appendant, 38. 
 of common appurtenant, 168 — 170. 
 of common in gross, 184, 185. 
 to inhabitants, 196, 197. 
 
 by Crown in derogation of its forestal rights, 197. 
 of common of estovers, turbary, &c., 199 — 202. 
 of common of things not renewable, 203, 207. 
 of exclusive right to get mines, &c., 209, 211. 
 of freeholds excepting mines, 216, 218. 
 of right to let down the surface, 223. 
 of a forest, 229, 236. 
 of a chase, 236. 
 of free warren, 238. 
 of a park, 238. 
 of common of piscary, 259. 
 of a several fishery, 260, 261, 268. 
 of water, 261.
 
 380 INDEX. 
 
 Graxt of t'oresliore, 266. 
 
 ancient, explained by modern user, 266. 
 
 of easemeuts, 315 — 324. 
 
 grantor cannot derogate from Ms, 322. 
 
 implied, is measured by the immemorial user, 326. 
 
 of a pew, 361. 
 
 Grantor cannot derogate from his grant, 322. 
 
 Grass stewards, 87, 90, 91, 102. 
 
 Gravel, prescrii:)tion for taking, 18. 
 
 right to dig, 138, 139, 203, 205, 206, 208. 
 lord may dig for, 151. 
 inclosm-e, 245. 
 
 Gross, prescriptive right lu, 12, 13. 
 
 right of common in, 31, 83, 107, 113, 121, 184, 185, l59, 
 
 203, 207, 259. 
 warren in, 239. 
 fishery in, 264, 265. 
 no easement in, 301. 
 
 Grouse, 239. 
 
 H. 
 
 Hainault Forest, 52, 54, 196. 
 
 Hamlets, 42. 
 
 Hampstead, manor of, 130, 131. 
 
 Hampton Court Chase, 237. 
 
 H.VMS, 91, 92, 94, 102. 
 
 Hawking, 238. 
 
 Hayward, 93, 102. 
 
 water, 87, 102. 
 
 Heath, right to take, 200. 
 
 Hedge bote, 18. 
 
 Herbage, several.— See Several Herbage. 
 
 HERBAGIUM TERR/E, 19. 
 
 Hide of land, 86, 89, 96. 
 
 Highway, 324, 325, 328, 329. 
 repairs of, 363.
 
 INDEX. 381 
 
 Homage, the, 125, 131. 
 
 presentmouts by, 158. 
 
 Home closes, 91. 
 
 Horses, breed of, 51. 
 
 House bote, 18, 199. 
 
 right of common in respect of, 35. 
 ancient, 186, 187, 361, 362. 
 
 Hundred, 271, 274. 
 
 Hunting, 238, 240—243. 
 
 Idiot owner of servient tenement, 311, 349. 
 
 Immemorial user. — See User. 
 
 Implication of grant of easements, 319, 320, 321, 322. 
 of reservation of easements, 320, 321, 322. 
 
 Impoltst), right to, 287. 
 
 Improvement. — See Approvement. 
 
 Inclosure under Statutes of Merton and Westminster the 2ud. 
 — See Approvement. 
 of common fields, 77, 79, 251. 
 Acts, 78. 
 
 of land subject to rights of common, 78, 252. 
 of part approved, 108. 
 
 when commoner may break down, 109, 135. 
 notice of intended, 118. 
 for growth of timber, 142. 
 of woods, 145. 
 for planting trees, 145, 146. 
 for habitations of the poor, 147, 148. 
 for church, churchyard or glebe, 148. 
 lord's rights in case of, 150. 
 effect of, on common by vicinage, 184. 
 tin-bounding, 226. 
 free warren, 239, 240, 243. 
 rights of sporting, 240 — 243. 
 by agreement between lord and commoners, 246 — 
 
 249. 
 Acts of Parliament confirming agreements for, 249.
 
 382 INDEX. 
 
 Inclosure commissioners, 249, 250, 252, 254. 
 General Inclosure Acts, 250 — 254. 
 mines and minerals, 250, 251. 
 exchanges, 251, 254. 
 of waste lands of a manor, 252. 
 village greens, 252. 
 recreation grounds, 253, 258. 
 allotments for labouring poor, 253, 258. 
 defects in awards, 254. 
 common lands taken by railways, &c., 254. 
 metropolitan commons, 255. 
 Commons Act, 1876. . . . 256, 258. 
 
 Incorporeal hereditaments, 30, 82, 185. 
 
 prescription only for, 2, 3. 
 rights of sporting, 228. 
 several fishery may be, 264. 
 what might pass by feoffment, 
 
 315. 
 exclusive right of burial is an, 
 
 362. 
 
 Indefeasible right to light, 348, 349. 
 
 Infangthief, 271, 274. 
 
 Infant owner of servient tenement, 311, 349. 
 
 Inhabitants, 13 — 15, 52, 164. 
 
 may set up custom to hold sports, 149. 
 cannot prescribe, 194. 
 cannot set up a custom to fish, 269. 
 grants to, 196, 197. 
 
 Injunction to restrain obstruction of Ught, 357, 358. 
 
 Injury, actionable, may establish a prescriptive right, 340, 
 
 359. 
 In-stroke and out-stroke, 222. 
 
 Interruption of user, 174, 179 — 182. 
 
 acquiescence in, 182. 
 Ironstone, right to get, 208, 209. 
 
 Irrigation, right to take water for, 332, 333, 335. 
 
 J. 
 
 JETS.1M, 290. 
 
 Justice seat. Court of, 234.
 
 INDEX. as 3 
 
 K. 
 
 Keeper — See Beast Keeper. 
 Keepers of a forest, 234. 
 
 Lammas meadows, 80. 
 
 Land, no prescription for, 2, 217. 
 
 built over, 35. 
 
 mines and minerals are, 216. 
 
 •what easements pass by conveyance of, 315. 
 
 Lawing of dogs, 230, 234. 
 
 Layings-out of common meadow, 90. 
 
 Lead mines rateable to the poor, 226. 
 
 Lease of servient tenement, 311 — 314, 319. 
 easement may pass by parol, 316. 
 
 Leet. — See Court leet. 
 
 Legal memory, 4, 7, 172, 173, 308. 
 
 Levant AND Couchant, 7,25,31— 35,54,73,74,107,121,122,184. 
 
 definitionof, 23, 31. 
 
 evidence of right for cattle, 157, 158, 160. 
 
 swine, 189. 
 Liabilities, prescriptive, 363. 
 
 Licence to get mines, minerals, &c., whether exclusive, 208, 209, 
 210. 
 gives no estate, 209 — 211. 
 to work mines rated to the poor, 226. 
 to make a park, chase, or warren, 238. 
 
 Licensee, exclusive, 211, 222. 
 
 Ligan, 290. 
 
 Light, right to, 305, 306—308, 310, 320, 348—358. 
 
 Limestone, right to get, 208. 
 
 Litter for cattle, 189, 190. 
 
 LiYERY, hereditaments which lie in, 3. 
 
 Loam, prescription for taking, 18. 
 lord may dig for, 151. 
 right to dig, 205.
 
 384 
 
 INDEX. 
 
 Lord of the manor, proscription in the name of the, 16, 17. 
 
 coi^yholcler maj' allege custom against, 17. 
 approving, onus to prove sufficiency on, 118, 
 
 123, 124. 
 his rights over waste lands, 150 — 152. 
 his rights in commons, 150 — 156. 
 his right to dig for sand, gravel, &c. on 
 
 wastelands, 211, 212. 
 his right to mines, 213. 
 his right to woi-k mines under copyholds, 223. 
 his rights of sporting over waste lands, 243. 
 saving of his rights in General Inclosure 
 
 Act, 250. 
 right to have bread baked at his bakehouse, 
 
 278—280. 
 right to have corn ground at his mill, 279, 
 
 280. 
 Lord of a vill, 50, 277. 
 Lost grant, presumption of, 3, 170—172, 225, 308, 309. 
 
 Lot meads, 79, 90, 91, 93, 95. 
 
 rentcharges out of, SO. 
 
 Lots, 90, 96. 
 
 M. 
 
 Main^tenance, 66. 
 
 Mandatory injunction to pull down a building, 357, 358. 
 Manor of Hampstead, 130, 131. 
 
 of Stepney, 1 30. 
 
 of West Ham, 132. 
 Manors, naines in and under, 213. 
 
 Manufacturing purposes, use of water for, 335, 336, 337. 
 Marches of Mercia and Wales, 63, 65, 66. 
 
 formerly no parcel of any shires, 65. 
 Mark, 57—64, 84. 
 
 arable land of, 58, 59. 
 
 wastes of, 58, 64. 
 
 meaning of the word, (51, 62. 
 
 arable, 97, 98, 100. 
 
 moot, 59. 
 
 sj'stem, 57 — 62. 
 
 Marks, for the sixteens, 89. 
 for lots, 90, 96.
 
 INDEX. 385 
 
 MLiRKET overt, 282, 283, 284, 296, 297. 
 
 Markets, 271, 293—299. 
 
 Marking of cattle, 53—56. 
 
 Markmen; 58, 62. 
 
 Court of the, 62. 
 
 Marle, right to dig, 208. 
 
 Married woman, owner of servient tenement, 311, 3-19. 
 
 Mast of trees, 21. — And see Pannage. 
 agistment of, 233. 
 
 Matter, in puis, 3. 
 of record, 3. 
 
 Meadows, common, 79. 
 lot, 79. 
 Lammas, 80. 
 
 Memory. — See Legal Memory. 
 
 Mercia, marches of, 63. 
 
 Messuage, right of common in resiject of, 35. 
 
 inclosure for enlargement of, 115 — 117, 122. 
 ancient, 186, 187, 361, 362. 
 
 Mill, right to have corn ground at lord's, 279, 280. 
 
 Minerals. — See Mines and Minerals. 
 
 Mines, right to discharge refuse water from, 340. 
 
 Mines and minerals, 82, 213—227. 
 
 lord's right to, 151, 152. 
 
 in case of encroachment on 
 waste lands, 152 — 154. 
 right to get, 200, 201, 207, 208, 210. 
 exclusive licence, 208, 209. 
 in and under manors, 213. 
 
 freeholds, 213, 216. 
 copyholds, 213—216, 223. 
 strata cannot be claimed by prescription, 
 
 216—218. 
 exception of, 216, 218, 220. 
 severed from surface, possession of, 218, 
 
 219, 220, 221. 
 reservation of right to get, 219. 
 meaning of the word " minerals," 220. 
 W.P. c c
 
 386 INDEX. 
 
 Mines and minerals, incidental rights to work, 221. 
 exj^ress powers of working, 221. 
 in-stroke and out-stroke, 222. 
 waj'leaves, 222. 
 
 grantee of, may use vacant sj)ace, 222. 
 carriage of, 222. 
 support to surface, 223, 224. 
 rateable to tlie poor, 225, 226. 
 mining customs, 226, 227. 
 regulation of mines, 227. 
 not saved to the lord in General Inclosure 
 
 Act, 250. 
 where expressly reserved on inclosure, 251. 
 
 Mining licence, 209. 
 
 Modus, 300. 
 
 Moss dales, 187. 
 reeve, 187. 
 
 N. 
 
 Natural watercourses, 338, 339, 341, 342. 
 Navigation, rights of, 266. 
 
 Necessary rights auxiliary to an easement, 322, 323. 
 
 easements. — See Necessity. 
 
 Necessity, easement of, 319, 322, 324. 
 way of, 321, 322. 
 
 Negative easements, 304, 305. 
 
 Novel disseisin, writ of, 41. 
 
 assize of, 103, 114, 115. 
 
 Nuisance, 340, 359, 360, 362. 
 
 0. 
 
 Obstruction of water. — See Diversion. 
 of light, 349—358. 
 
 Occupiers, action on behalf of owners and, 162 — 165. 
 allegation of enjoyment bj-, 174. 
 owners and, grant of casements to, 315. 
 
 Offa's Dyke, 63, 64, 65.
 
 INDEX. 387 
 
 Ordixaey's right to arrange seats in churcli, 360, 361. 
 
 Obes, right to get. — See Mines and Minerals. 
 
 outfangthief, 271, 274. 
 
 Outlawry, 293. 
 
 Out-stroke, in-stroke and, 222. 
 
 Owner, riparian. — See Eipaeian. 
 
 of soil, his rights to get water by sinking wells, 342 — 
 
 347. 
 of soil, his remedy in respect of windows overlookiiig 
 
 his land, 349 — 356. — And see Soil. 
 
 Owners and occupiers, action on behalf of, 162 — 165. 
 grant of easements to, 315. 
 
 P. 
 
 Pais, usage in, 3. 
 
 Pannage, 21, 168, 189. 
 
 in a forest, 232. 
 
 Parish, 40, 41, 43, 363. 
 
 reeve of the, 53, 54. 
 
 rights of common exercised by, 52 — 55. 
 
 Park, 238, 271. 
 
 rights of townshijo to common in, 51. 
 
 Parol demise may pass easement, 316. 
 
 Partition by order of Inclosure Commissioners, 254. 
 what easements pass upon, 323, 324. 
 
 Pasture, several. — See Several Pasture. 
 
 common of, 9, 12, 18, 137, 141, 168, 189, 245. 
 what it comprises, 21. 
 
 origin of common appendant of, 37 — 39, 51, 57. 
 writ of admeasurement of, 44, 45, 46, 121, 122. 
 
 Pastures, common. — See Common Pastures. 
 gated and stinted, 81. 
 
 Pawnage. — See Pannage. 
 
 Peace, bill of, 160—165. 
 
 Peat, right of cattle-gate owner to cut, 84. 
 right to take, 187, 199, 201. 
 c c 2
 
 388 INDEX. 
 
 Pedagium, 325. 
 
 Persox.vl pnyileges, 301, 302. 
 
 Pews, 360—362. 
 
 PiCKAGE, 294. 
 
 Piscary, common of, 137, 259. 
 
 Pleading, by freehokler, 1, 16, 17, 24. 
 by copyholder, 2, 16, 17, 24. 
 by limited owners, 16. 
 in actions by commoners, 160 — 165. 
 under Prescription Act, 174, 181. 
 house intends ancient house, 187. 
 right of common of things not renewable, 205. 
 the right of a several fishery, 260. 
 in claims of easements, 306. 
 
 Pleas, cognizance of, 3. 
 
 franchise of holding, 271. 
 
 Plough bote, IS. 
 
 Pollution of rivers, 336—342. 
 
 Poor Law Act, old. — See Stat. 43 Eliz. c. 2. 
 inclosure for habitations of the, 147, 148. 
 householders, 195. 
 
 mines and minerals rateable to the, 225, 226. 
 rights of sjDorting are rateable to the, 244. 
 allotments for labouring, 253, 258. 
 rights of fishing how rateable to the, 265. 
 stallage rateable to the, 295. 
 tolls not rateable to the, 295. 
 
 Possession by licensee, 211. 
 
 of copyholder, 213—216. 
 of mines severed from siu'face, 218 — 221. 
 unity of, of dominant and servient tenements, 316 
 —319. 
 
 Pound, what may be put in a, 287. 
 animals in a, 288. 
 
 Prescription Act. — See 2 & 3 Will. IV. c. 71. 
 for a franchise. — See Peanchise. 
 of enjoyment by a man, seised in fee, and those 
 whoso estate he has, 1, 9, 16, 18.
 
 INDEX. 389 
 
 Prescription, definition of, 1. 
 title by, 1, 2, 4. 
 in a que estate, 1, 9, 16, 18. 
 
 definition of, 16. 
 differs from, custom, 1, 279, 280. 
 none for things not had without record, 2. 
 none for land, 2, 217. 
 implies a grant, 3, 223. 
 proof of, 4. 
 time of usage, 4, 5. 
 when consistent with grant, 7. 
 by corporations, 9, 12. 
 
 of enjoyment by a man and his ancestors, 9—12. 
 none by inhabitants, 13. 
 by tenant for life, 16. 
 by tenant for years, 16. 
 by tenant at will, 16. 
 by copyholder, 16, 17. 
 in the name of tenant in fee, 16, 174. 
 oi & profit d ])rendre, 18, 173. 
 for common appm-tenant, 172. 
 time of, 173. 
 
 under the Prescription Act, 173 — 182. 
 claim must be lawful, 176. 
 for right of common in gross, 185. 
 for right to take fuel, 186. 
 for common of things not renewable, 203. 
 none for strata of coal or other minerals, 21 6 — 218. 
 none for lord to work mines under copyholds 
 
 without making compensation, 223. 
 for right of support of buildings by adjacent 
 
 land, 225. 
 for a park, 238. 
 for common of piscary, 259. 
 a corporation by, 271. 
 to have foldage, 277. 
 for a fold course, 278. 
 none for goods of felons, 293. 
 none for deodands, 293. 
 for an easement, 305 — 314. 
 persons under disability, 349. 
 for a pew, 361, 362. 
 for separate burial in a vault, 362. 
 liabilities by, 363, 364.
 
 390 INDEX. 
 
 Pbescriptite liabilities, 363, 364. 
 
 right, definition of, 1. 
 
 gained by immemorial enjojnnent by a 
 man and his ancestors may be granted 
 by him, 10. 
 
 in gross, 12, 13. 
 
 claim of, from immemorial user, how de- 
 feated, 308. 
 
 user is the measure of the, 326, 337, 338. 
 
 established by user which is an actionable 
 injury, 340, 359. 
 
 Presumption of lost grant. — See Lost Grant. 
 that all things are rightly done, 3. 
 from user for less than number of years mentioned 
 
 in Prescription Act, 311. 
 prior to Prescription Act, 332. 
 
 Prima tonsui-a, 20. 
 vestura, 20. 
 
 Privileges, personal, 301, 302. 
 
 Profit a prendre, 18, 173. 
 
 right to take water from a spring is not, 18, 
 
 305. 
 cannot be claimed by custom, 194. 
 
 Prosecution of felon, whether necessary to recover stolen 
 goods, 282, 283, 284. 
 
 Public rights of fishing and navigation, 265, 266, 268, 269. 
 right of way, 324, 328, 329. 
 
 Purlieus of a forest, 233. 
 
 PURPRESTURE, 231. 
 
 E. 
 
 Rabbit burrows, lord may make, 151. 
 
 EabBITS, 244. 
 
 Railways, common lands taken by, 254. 
 
 Eankness, 300. 
 
 Receiver of wreck, 291, 292.
 
 INDEX. 391 
 
 Record, matter of, 3. 
 
 no prescription for things not had without, 3. 
 
 Eecreation grounds, 253, 258. 
 
 PiEEVE of the parish, 53, 54. 
 field, 76. 
 moss, 187. 
 
 Eeextse water, right to discharge, 340. 
 
 Eegeant by general words, 31G. 
 
 Eelease of common aj)i5endant, IGG. 
 
 Eemedies of commoners, 135, 160—165. 
 
 Eexewable, common of things, 186 — 203. 
 
 must be a reasonable claim, 
 
 190—192. 
 must be spent upon the tene- 
 ment, 192. 
 created by grant, 198. 
 in gross, 199—202. 
 appurtenant, 199. 
 right may be exclusive, 202. 
 inclosure, 245. 
 common of things not, 203 — 212. 
 
 claim must be reasonable, 
 
 203. 
 must be spent upon the 
 
 premises, 203, 205. 
 whether custom to approve 
 
 against, 207. 
 grant of, 207. 
 whether Hcence exclusive, 
 
 208, 209. 
 inclosure, 245. 
 
 EENT-CH^iEGE out of part of lot mead, 80. 
 
 Eepaies, right to make, in the case of an easement, 322, 323. 
 of road, 328, 329. 
 of a pew, 361. 
 prescriptive liability to make, 363, 364. 
 
 Eequest to alienee to reform nuisance, 362. 
 
 Eeservation of right to get mines, 219. 
 
 of easements, whether implied, 320, 321, 322. 
 upon dedication of highway, 329.
 
 392 INDEX 
 
 Eeslints, 272, 279, 280. 
 
 EiCHABD the First, reign of. — See Legal Memory. 
 
 Eight, person cannot claim, against Hmself, 177. 
 
 ElPAKlAN owner's right to water, 331—336, 342 — 347. 
 to have water unpolluted, 336 — 342. 
 in case of natural and artificial watercourses, 338 — 
 342. 
 
 EiVERS, tidal, 265 — 268. 
 
 not tidal and navigable, 269, 270. 
 
 soil of, 269, 270, 331. 
 change of course of, 269, 270. 
 pollution of, 336—342. 
 
 rights of riparian owners, 331 — 336, 342 — 347. 
 natiu'al and artificial, 338 — 342. 
 
 EoYAL forest, 196. 
 fishes, 292. 
 
 S. 
 
 Sale in market overt, 282, 283, 296, 297. 
 
 Sample, sale by, 296, 297. 
 
 SAJSfCTUAiiY, no prescription to make, 3. 
 
 Saotd, prescription for taking, 18. 
 
 right to dig, 138, 139, 203, 205, 206, 208. 
 lord may dig for, 151. 
 inclosui^e, 245. 
 
 School, site for, 149. 
 
 Sea, rights of fishing in the, 265, 266. 
 
 advance and recession of the, 266, 267. 
 wi-eck of, 271, 289—292. 
 wall, prescrii^tive liability to repair, 363. 
 damage to sea wall by, 363, 364. 
 
 Seashore. — See Foreshore. 
 
 SeCTA FALDiE, 275. 
 
 Servient tenement, 18, 301. 
 
 held for life or years, 311—314, 349. 
 unity of possession, 316 — 319. 
 increased burden cannot be imposed on, 
 325-327, 337, 338.
 
 INDEX. 393 
 
 Servient tenement, owner of, under disability, 311, WJ. 
 need not repair way, 328. 
 his right to refuse and sui-plus water, 340 — 
 342. 
 
 Sekvitudk. — See Easements. 
 
 Sets of common meadow, 90. 
 
 Sett of mines, 226. 
 
 Several pasture, 9, 12, 18, 21—30, 83. 
 
 not a right of common, 12. 
 
 for sheep, 25. 
 
 rights of owner of soil, 27, 28, 30. 
 
 rights in the surface, 27 — 30. 
 
 is a tenement, 30. 
 herbage, 9, 18, 19, 20, 21, 211. 
 
 is a tenement, 30. 
 vesture, 18, 19, 20, 21. 
 fishery, 259—265, 268, 270, 287. 
 right of burial in a vaiilt, 362. 
 
 Shack, common of, 68, 71, 72. 
 
 Sheep, sole pasture for, 25. 
 
 Sheepcote, inclosure for, 114. 
 
 Sheriff's tourn, 272. 
 
 Shipwrecks, 289—292. 
 
 Shooting, right of, 244. 
 
 Signboard, 363. 
 
 SiXTEENS, the, 87—89, 90, 92—96. 
 
 Slate, right to get, 208. 
 
 Smith, 102. 
 
 Soil, rights of owner of, in the case of several pasture, 27, 28, 
 30. 
 interest of owner of cattle gate in the, 82—84. 
 owner of, may apjirove, 113. 
 of waste lands, 150. 
 evidence of ownership of, 155. 
 owner of, may dig for minerals, 201, 208, 212. 
 owner of the, his rights of sjDorting, 240 — 243. 
 right of owner of several fishery to the, 259 — 264.
 
 394 INDEX. 
 
 Soil of foreshore, 2G5, 266, 267, 268. 
 
 of tidal and navigable rivers, 267, 268. 
 of rivers not tidal and navigable, 269, 270, 331. 
 owner of, his right to get water by sinking wells, 342 — 
 347. 
 his remedy in respect of windows overlooking 
 his land, 349 — 356. 
 easement of erecting some chattel upon another's, 363. 
 
 Sole herbage, pasture, &c. — See Several Herbage, Pasture, 
 &o. 
 
 Sportixg, right of, 18, 82, 228—244. 
 lord's, 152. 
 a forest, 228—236. 
 a chace, 236, 237. 
 a park, 238. 
 
 free warren, 238—240, 243. 
 on a man's own land, 240 — 243. 
 rateable to the poor, 244. 
 
 Sports on village green, 148, 149. 
 
 Stallage, 294, 295. 
 
 Stannary Court, 226. 
 
 Statute of Additions. — See 1 Hen. V. c. 5. 
 
 of Merton.— See 20 Hen. III. cc. 4, 8. 
 
 of Quia Emptores. — See 18 Edw. I, c. 1. 
 
 of Westminster the 1st. — See 3 Edw. I, c. 39. 
 
 of Westminster the 2nd.— See 13 Edw. I. c. 46. 
 
 Statutes cited : — 
 
 9 Hen. III. (Charta de Foresta), 230. 
 
 c. 16 (Magna Charta, river banks), 268. 
 20 Hen. III. c. 4 (Statute of Merton, approvement), 103 — 
 118, 123—125, 131, 132, 135, 137, 
 138—141, 184, 197, 206, 245. 
 0. 8 (Statute of Merton, legal memory), 4. 
 3 Edw. I. c. 39 (legal memory), 4. 
 
 13 Edw. I. c. 46 (Statute of Westminster the 2nd, ap- 
 provement), 103—106, 108—114, 116, 
 118, 126, 184, 197, 245. 
 ' 18 Edw. I. c. 1 {Quia emptores), 8, 106. 
 17 Edw. II. c. 2 (wreck), 289. 
 
 1 Hen. V. c. 5 (Statute of Additions), 40. 
 22 Edw. IV. c. 7 (inclosurc in forests, &c.), 142 — 144.
 
 Statutes cited: 
 
 27 Hen. Ylll. 
 
 c. 
 c. 
 
 31 Hen. VIII. 
 35 Hen. VIII. 
 
 c. 
 c. 
 c. 
 
 liSIDEX. 395 
 
 6 (breed of horses), 51. 
 
 7 (forest marks), 55. 
 26 (marclies), 65. 
 5 (Hampton Court chase), 237. 
 17 (inclosure of woods), 145. 
 
 3 & 4 Edw. VI. c. 3 (ai-)provement), 103, 111. 
 
 1 & 2 Phil. &Mary, c. 15 (infangthief and outfangthief), 
 
 274. 
 43 Eliz. c. 2 (first Poor Law Act), 147, 225. 
 16 Car. I. c. 16 (forests), 235. 
 29 Car. II. c. 3 (Statute of Frauds), 316. 
 
 9 & 10 WiU. III. c. 36 (New Forest), 176. 
 
 1 Anne, st._l, c. 7 (leases by Crown), 176. 
 24 Geo. II. c. 23 (for correcting the calendar), 74, 75, 80. 
 29 Geo. II. c. 36 (inclosure of commons), 145, 146. 
 31 Geo. II. c. 41 (inclosure of commons), 145, 146. 
 13 Geo. III. c. 81 (common fields and commons), 76, 81, 
 
 146, 147. 
 41 Geo. III. c. 109 (first General Inclosure Act), 250. 
 51 Geo. III. c. 115 (inclosure for church, &c.), 148. 
 
 7 & 8 Geo. IV. c. 27 (inclosure), 145, 146. 
 
 1 & 2 Will. IV. c. 12 (Forest of Dean), 227. 
 
 2 & 3 WiU. IV. c. 71 (the Prescription Act), 4, 12, 16, 
 
 173—182, 185, 204, 225, 265, 
 306, 307, 309—314, 325, 332, 
 336, 348, 362. 
 
 s. 1 (claim oi profit d prendre), 173, 
 176, 177, 179, 217, 309. 
 
 s. 2 (easements), 309, 313, 340, 341, 
 361. 
 
 s. 3 (Hght), 310, 348. 
 
 s. 4 (period next before some ac- 
 tion), 174, 181, 204, 311, 348. 
 
 s. 5 (pleading), 174, 204, 311. 
 
 s. 6 (enjoyment for less than speci- 
 fiedperiod), 175,179, 180,311. 
 
 s. 7 (allowance for disabilities), 175, 
 176, 311, 313, 349. 
 
 s. 8 (servient tenement in lease), 
 311—314, ,349. 
 
 3 & 4 Will. IV. c. 27 (Statute of Limitations), 122, 152, 
 154, 218. 
 
 4 & 5 Will. IV. c. 30 (common fields), 77, 251.
 
 396 INDEX. 
 
 Statutes cited: 
 
 & 6 Will. IV. c. 59 (animals in a pound), 288. 
 6 & 7 Will. IV. c. 115 (inclosure), 77, 251, 254. 
 
 1 & 2 Vict. cc. 42, 43 (Forest of Dean), 227. 
 
 3 & 4 Vict. c. 31 (common fields), 78, 251. 
 
 4 & 5 Vict. c. 38 (sites for schools), 149. 
 
 8 e*t 9 Vict. c. 18 (Lands Clauses Consolidation), 254, 255. 
 
 c. 100 (to amend the law of real property), 
 
 3, 169. 
 c. 118 (General: Inclosure Act), 78, 251 — 254, 
 255. 
 s. 2 (Inclosiu'e Commissioners for Eng- 
 land), 252. 
 s. 11 (lands subject to rights of com- 
 mon), 78, 252. 
 s. 12 (waste lands of a manor), 252. 
 s. 15 (village greens), 252. 
 s. 30 (exercise and recreation grounds), 
 
 253, 258. 
 s. 31 (allotments for labouring poor), 
 
 253. 
 s. 147 (exchanges), 254. 
 s. 152 (defects in awards\ 254. 
 
 9 & 10 Vict. c. 62 (deodands), 293. 
 
 c. 70 (inclosure), 78, 84, 254. 
 
 10 & 11 Vict. c. 14 (Markets and Fairs Clauses), 297, 298. 
 
 c. Ill (inclosure), 78. 
 
 11 & 12 Vict. c. 99 (inclosure), 78, 254. 
 
 12 & 13 Vict. c. 83 (inclosure), 78, 254. 
 
 c. 92 (animals in a pound), 288. 
 
 14 & 15 Vict. c. 43 (Hainault Forest), 196. 
 
 c. 94 (customs of the High Peak in Derby- 
 shire), 227. 
 
 15 & 16 Vict. c. 79 (inclosure), 78, 254. 
 
 c. 163 (customs of Wirksworth in Derby- 
 shire), 227. 
 
 16 & 17 Vict. c. 3 (inclosure, Bampton), 96. 
 
 17 & 18 Vict. c. 60 (animals in a pound), 288. 
 
 c. 97 (inclosui-o), 78, 254, 255. 
 c. 104 (Merchant Shipping Act, 1854), 291, 
 292. 
 
 18 & 19 Vict. c. 91 (Merchant Shipping Amendment), 291. 
 20 & 21 Vict. c. 31 (inclosui-e), 78, 252, 254. 
 
 22 & 23 Vict. c. 43 (inclosure), 78, 251, 254.
 
 INDEX. 397 
 
 Statutes cited : 
 
 24 & 25 Vict. c. 40 (Forest of Dean), 227. 
 
 c. 96 (stolen goods), 284. 
 
 c. 101 (Statute Law Revision), 76. 
 
 25 & 26 Vict. 0. 63 (Merchant Shipping Amendment), 291, 
 
 292. 
 
 29 & soviet, c. 122 (Metropolitan Commons Act, 1866), 
 
 255, 256. 
 
 30 & 31 Vict. c. 35 (stolen goods), 284. 
 
 31 & 32 Vict. c. 51 (fairs), 298. 
 
 c. 89 (inclosure), 78. 
 
 32 & 33 Vict. c. 19 (Stannaries Act, 1869), 226. 
 
 c. 107 (Metropolitan Commons Act, 1869), 
 255. 
 
 33 & 34 Vict. c. 23 (forfeiture), 293. 
 
 34 & 35 Vict. c. 12 (Fairs Act, 1871), 298, 299. 
 
 c. 85 (Forest of Dean), 227. 
 
 35 & 36 Vict. c. 76 (Coal Mines Eegulation Act, 1872), 
 
 227. 
 c. 77 (Metalliferous Mines Eegulation Act, 
 1872), 227. 
 
 36 Vict. c. 19 (inclosure), 78. 
 
 36 & 37 Vict. c. 37 (Fairs Act, 1873), 298. 
 
 37 & 38 Vict. c. 54 (Eating Act, 1874), 225, 226, 244. 
 
 c. 57 (Statute of Limitations), 152, 154, 218. 
 39 & 40 Vict. c. 56 (Commons Act, 1876), 78, 118, 252, 
 
 256, 258. 
 
 42 & 43 Vict. c. 37 (inclosure), 78, 256. 
 c. 59 (outlawry), 293. 
 
 Stepney, manor of, 130. 
 
 Stinted pastures, 78, 81. 
 
 Stints, 81, 156—160. 
 
 Stolen goods, 282 — 285. 
 
 Stone, lord may quarry for, 151. 
 right to dig for, 210. 
 exception of, 220. 
 
 Stuegeons, 292. 
 
 Subinfeudation, 106. 
 
 Suit, fresh, 281. 
 
 Support of surface by mines, 223.
 
 398 INDEX. 
 
 Support, right of, as between adjacent landowners, 224, 225. 
 
 of houses built together, implication of reciprocal 
 rights of, 322. 
 
 SuECHARGE of common, 121, 122. 
 
 Surface, rights as to the, in the case of several pasture, 27 — 
 
 30. 
 acts of owner of, where mines excepted, 218. 
 rights of owner of, against grantee or licensee of 
 
 mines, 221—223. 
 rights of owner of, to support, 223, 224. 
 
 Swainmote, Coui-t of, 234. 
 
 SwAKS, 286. 
 
 Swine, 168. 
 
 levant and couchant, 189. — And see Pannage. 
 
 Ten^int at will, prescription by, 16. 
 for life, prescription by, 16. 
 for years, prescription by, 16. 
 in fee simple, prescription in name of, 16, 174. 
 for life of servient tenement, 311 — 314, 349. 
 
 Tenants and inhabitants, 15, 52. 
 
 in common, 2. 
 Tenements, rights of several herbage and pasture are, 30. 
 
 dominant and servient, 301. — And see Dominant 
 AND Servient. 
 
 Thorns, right to take, 20, 202. 
 
 Thorough, toll, 299. 
 
 TID.U. rivers, 265—268. 
 
 Timber, 186, 199. 
 
 inclosure to preserve, 146. 
 on copyholds, 213, 214. 
 in a chase, 237. 
 
 Time immemorial, 1, 4. 
 
 title by enjoyment from. — See User. 
 
 Tin, right to get, 210. 
 
 mines rateable to the jDoor, 226.
 
 INDEX. 399 
 
 TlN-BOUXDING, 226. 
 
 Tithes, 173, 300. 
 
 TiTHiNGS, 42. — And see Vills. 
 
 Title by prescription, 1, 2, 4. 
 
 Tolls, 271, 293—300, 325. 
 
 tonsuea, pbima, 20. 
 
 Town. — See Vills. 
 
 Township. — See Tills. 
 
 Traitors, goods and chattels of, 3. 
 
 Traverse, toU, 299. 
 
 Treasure trove, 271, 280, 281. 
 
 Trees, inclosure for planting, 145, 146. 
 lord may jDlant, 151. 
 
 Trespass, action of, who may bring, 19, 27, 29, 30, 83, 122. 
 exclusive licensee may maintain, 211. 
 brought by coijyholder, 214. 
 by owner of free warren, 239. 
 owner of several fishery may bring, 264. 
 
 Trover, action of, 214. 
 
 Turbary, common of, 137, 138, 140—142, 187, 191, 192, 197— 
 200, 245. 
 
 Turf. — See Turbary. 
 
 Twenty years' enjoyment, 5, 6, 309 — 314. 
 
 U. 
 
 Underground water, 342 — 347. 
 
 Underwood, 19—21, 186, 189. 
 
 inclosure to preserve, 146. 
 
 Usage. — See User. 
 
 Use and occupation, 211. 
 
 User from time immemorial, 1, 4, 5, 10, 12, 13, 16, 305 — 308, 
 
 348. 
 evidence of, 307, 308. 
 by a man and his ancestors, 1, 9 — 12, 185.
 
 400 INDEX. 
 
 Usee, in. pais, 3. 
 
 time of, 4, 5. 
 
 for twenty years, 5, 6, 309 — 314. 
 
 for sixty years, 11, 173, 176. 
 
 may create right of common appurtenant, 168. 
 
 for thirty years, 173, 175. 
 
 next before some action, 174, 181, 182. 
 
 interruption of, 174, 179 — 182. 
 
 of no avail if claim unlawful, 176, 177. 
 
 must be by persons claiming right, 177. 
 
 cannot be as of right against a man's self, 177, 178. 
 
 of right of common over part of waste, 178. 
 
 cesser of, 178. 
 
 in an ancient house, 186. 
 
 modern, may explain ancient grant, 266. 
 
 title to franchises by, 271. 
 
 immemorial, right to light may be claimed by virtue of, 
 
 306—308, 348. 
 commencement of, within legal memory, 308, 310. 
 for periods mentioned in the Prescrij^tion Act, 309 — 314. 
 for forty years, 309—314. 
 is the measure of the grant implied, 326. 
 is the measure of the right, 326, 337, 338. 
 which is an actionable injury establishes a right, 340, 359. 
 immemorial, of a pew, 361, 362. 
 
 V. 
 
 Vault, right of burial in a, 362. 
 
 Ven'ery, beasts of, 230. 
 
 Venison, 229, 238. 
 
 Verdereks, 234. 
 
 Vert, 228, 238. 
 
 Vestura, prima, 20. 
 
 Vesturam terr^, 19. 
 
 Vesture, several. — See Several Vesture. 
 
 VicixAGE, common by reason of, 47, 48, 50, 69, 72, 74, 183, 
 184. 
 
 ViCONTlEL writs, 121.
 
 INDEX. 401 
 
 Village communities, 39, 57, 97 — 102. 
 
 waste land of, 99. 
 
 example of, 85, 86. 
 Court, 59. 
 green, 148, 149, 252. 
 
 ViLLS, 39, 40, 41—43, 51, 52, 55, 84, 117. 
 may make bye-laws, 47. 
 
 common of pasture belonging to, 44 — 50, 146. 
 lords of, 50, 277. 
 common for beasts in, 116. 
 may be bound to repair highways, 363. 
 
 w. 
 
 Waifs, 271, 281, 282, 283. 
 
 Wales, boundary of, 63. 
 marches of, 65. 
 
 Warden, 102. 
 
 of the Fleet, 94. 
 
 Warren, 238—240, 243, 271. 
 
 AVarrener, 239. 
 
 house, inclosure round, 122, 
 
 Waste land, 51. 
 
 of village communities, 99. 
 
 grant of, as copyhold, 123, 125, 128, 129—134. 
 
 custom to inclose, 125, 126, 128, 129. 
 
 power to lease, 147. 
 
 improvement of, 147. 
 
 soil of, 1 50. 
 
 lord's rights over, 150 — 152. 
 
 encroachments on, 152 — 154. 
 
 purchase of, by commoner, 166, 167. 
 
 lease of, to commoner, 166. 
 
 user of right over part of, 178. 
 
 custom to dig for coal on, 207. 
 
 lord's right to dig for sand, gravel, &c. on, 211, 
 
 212. 
 mines in and under, 213. 
 lord's rights of sporting over, 243. 
 W.P. D D
 
 402 INDEX. 
 
 4 
 
 Wastehold coi:)yholds, 133. 
 
 Water, liglit to take, from a spring, is an casement, 18, 305. 
 liayward, 87, 102. 
 steward, 102. 
 
 right to use of, 305, 309—314, 317, 331—347. 
 diversion of, 334—336, 339—347. 
 refuse, right to discharge, 340. 
 right to get, by sinking wells, 342 — 347. 
 underground, 342 — 347. 
 diipping from eaves, 362. . 
 
 AVatercourse, right to, 309—314, 317, 331—347. 
 
 riparian owner's right to use of water, 331 — 336, 
 
 346, 347. 
 diversion of, 334—336, 339—347. 
 pollution of, 336—342. 
 natural, 338, 339, 341, 342. 
 artificial, 339—342. 
 underground water, 342 — 347. 
 
 VVaviata, bona, 281, 282. 
 
 Way leaves, 222. 
 
 right of, 305, 309—314, 316, 318, 319, 323, 324—330. 
 
 for one purj)ose gives no right for another pur- 
 pose, 222, 325, 326, 327. 
 
 different kinds of ways, 324, 325. 
 
 public, 324, 328, 329.' 
 
 can only bo used for purpose for which it was 
 acquired, 325, 326. 
 
 upon division of dominant tenement, 32(i. 
 
 acquired for all purposes, 326, 327. 
 
 to one close cannot be used to another, 327. 
 of necessity, 321,322. 
 deviation from, 328, 329. 
 repairs of road, 328, 329. 
 when not defined, 329, 330. 
 
 AVell, right to get water by sinking, 342 — 347. 
 
 AA'iiales, 292. 
 
 AViND.— See Air. 
 
 AViNDMiLL, inclosure for, 114. 
 
 AViNDOWS, 349—358, 360. 
 
 AVONTXER, 102.
 
 INDEX. 403 
 
 Wood, right to take, 199. 
 
 WooDMOTE Court, 234. 
 
 Woods, inclosure of, 145. 
 
 Woodwards, 177. 
 
 inclosuro for cottages of, 117. 
 of a forest, 234. 
 
 Wreck of sea, 271, 289—292. 
 
 Writ -of riglit, 4. 
 
 of novel disseisin, 44, 
 
 of admeasurement of pasture, 44, 45, 4G, 121, 122. 
 
 Writs, viconUel, 121. 
 
 abolition of ancient, 122. 
 
 Y. 
 
 YARDL.\]srD, 49, 86, 96, 134, 247. 
 
 LONDON : 
 C. F. EOWORTH, PEINTEB, BEEAM's BUILDINGS, CHANCERY LANE, E.G.
 
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