pendant. Common appendant is of common right (a), and therefore a For disturbance man need not prescribe for it. (b) It must have existed from of common. time immemorial (c), and can only be appendant to arable land, Common apand not to a house or meadow (d), but it may be claimed as appendant to a cottage, for a cottage contains a curtilage (e), and it may also be claimed as appendant to a manor, carve of land, &c. which comprehend a house, meadow, &c. besides arable land, in which case it shall be intended appendant only to the arable land (ƒ), and if part of the arable be converted into pasture, the common remains. (g) Common appendant may be for the whole year, or for a time limited. (h) Common appendant cannot be claimed for a certain number of cattle, but for such only as are levant and couchant on the land, and therefore it cannot be severed even for a moment, or turned into a common in gross. (i) It can only be for beasts of the plough which till the land, as horses, oxen, &c. or for cattle which manure the land, as cows and sheep, and therefore, if a man prescribes for common appendant for all cattle it will be bad (k), and the cattle must be levant and couchant, that is, as many as are necessary to plough and manure the land in proportion to the quantity of it (7), or as many as the land will maintain during the winter (m), or as many as the land is capable of maintaining, though they be not maintained upon it during the winter. (n) Common appendant cannot be used with the cattle of a stranger (o), but it may be used with cattle hired or borrowed to plough or manure the land. (p) (a) 1 Rol. Ab. 596, 1. 44. Co. Litt. 122, a. (b) Br.Ab. Common, 11, 35. Tyringham's case, 4 Rep. 37, a. Co. Litt. 122, a. Hargrave's note, (2). (c) 1 Rol. Ab. 396, 1. 40. (d) 1 Rol. Ab. 397, 1. 28, 29. Scholes v. Hargraves, 5 T. R. 46. (e) Emerton v. Selby, 1 Salk. 169. 2 Ld. Raym. 1015, S. C.; but quære, since stat. 15 Geo. 3, c. 32. (ƒ) Tyringham's case, 4 Rep. 37, b. Com. Dig. Common, (B). Co Litt. 122. (g) Ibid. (h) 1 Rol. Ab. 396, 1. 49. Com. Dig. Common, (B). (i) Musgrave v. Cave, Willes, 322. (k) 1 Rol. Ab. 397, 1. 38, 44. Ty. ringham's case, 4 Rep. 37, a. Bennet v. Reeve, Willes, 231. (1) Per Willes, C. J. in Bennet v. Reeve, Willes, 231, 2. (m) Per Buller, J. in Scholes v. Har greaves, 5 T. R. 48, 49. Cole v. Foxman, Noy, 30. (n) Cheesman v. Hardham, 1 B. and A. 706. Rogers v. Benstead, MS. Selw. N. P. 413, 4th edit. (0) 1 Rol. Ab. 402, l. 34. F. N. B. 180 B. (p) 1 Rol. Ab. 402, 1. 39. Bennet v. Reeve, Willes, 231,2. See Woolrych on Com. 42. For disturbance of common. Common appurtenant. Common appendant may be apportioned by alienation of part of the land to which the common is appendant, and so also, where the commoner purchases part of the land in which, &c. (a), but in the latter case it is otherwise, with regard to common appurtenant (b). Unity of possession however extinguishes both common appendant and appurtenant. (c) Common appurtenant is founded on a grant or a prescription, which supposes a grant, and may be granted at this day (d), and may be claimed as appurtenant to any kind of land. (e) Common appurtenant may be granted for all manner of cattle, as hogs, goats, &c. (f), and either for a certain number or without number (g); in the latter case, the measure of profit which the commoner is entitled to, is as in common appendant, levancy and couchancy (h), the latter species of common appurtenant cannot therefore be converted into common in gross, but when it is for a certain number of beasts it may. (i) Common appurtenant may be claimed for cattle lerant and couchant upon a messuage, for it includes a curtilage (k), but it cannot be claimed as appurtenant to a house without any land. (1) Common of pasture without land may be parcel of a manor, and demised and demisable by copy of court roll. (m) Common appurtenant may be apportioned by conveyance of part of the land to which the right is appurtenant (n), but if the commoner purchases part of the land in which, &c. the common is extinct (0), and this common as well as common appendant, may become extinct by unity of possession. (p) But a right of common appurtenant to a copyhold tenement, is not lost by (c) Tyringham's case, 4. Rep. 38, a. (e) Tyringham's case, 4 Rep. 37, a. (g) F. N. B. 181. N. 1 Rol. Ab. 401, (h) 1 Rol. Ab. 398, 1. 40. Drury v. Kent, Cro. Jac. 15. Bennet v. Reeve, (k) Scambler v. Johnson, 2 Show. 248. T. Jones, 227, S. C. Scholes v. Hargreaves, 5 T. R. 49. (1) Scholes v. Hargreaves, 5 T. R. 46. (m) Musgrave v. Cave, Willes, 319. (n) Sacheverell v. Porter, Cro. Car. 482, Hob. 235, Co. Litt, 122, a. (0) Wild's case, 8 Rep. 79, a. Tyringham's case, 4 Rep. 37. (p) Bradshaw v. Eyre, Cro. Eliz. 570, Co. Litt. 114, b. forfeiture and re-grant (a). However, where a right of common For disturbance in the lord's waste, is annexed by custom to a copyhold tene- of common. ment, it is extinguished by enfranchisement of the tenement, for the common was only gained by custom, and annexed to the customary estate, and is therefore lost with it (b); but where the common is without the manor, of which the copyhold is parcel, it is annexed to the land, and not to the customary estate, and is not therefore extinguished by enfranchisement of the copyhold (c). Suspension of the possession, as by taking a lease of the land for twenty years, does not destroy the right (d), but by taking a lease of parcel of the land, the whole common is suspended (e). cinage. Common of vicinage is not strictly a right of common, for if Common of viit were, it would prevent an inclosure, which it has been always held that it will not. It arises where the inhabitants of two townships, or vills, intercommon in wastes contiguous to each other, so that the cattle of one township or vill, stray into the wastes belonging to the other; such a custom however is only an excuse for a trespass (f). Where there is only a partial enclosure, so as not to prevent the cattle from straying, common of vicinage still continues (g). Common in gross is such a common as is neither appendant nor appurtenant to land, but is annexed to a man's person, being granted to him and his heirs by deed; or it may be claimed by prescriptive right, as by the parson of a church, or the like corporation sole. It is a separate inheritance, entirely distinct from landed property, and may be vested in one who has not any land in the manor (h). Common appurtenant for a certain number of cattle, may be converted into common in gross (2). It seems that a right of common in gross, sans nombre, in the latitude in which it was formerly understood, cannot exist (k). (a) Badger v. Ford, 3 B. & A. 153. (b) Massam v. Hunt, 1 Brownl. 220. Yelv. 189, S. C. Fort v. Ward, Moor, 667. (c) Barwick v. Matthews, 5 Taunt. 365. Crouther v. Oldfield, 1 Salk. 366. (d) Co. Litt. 114, b. (e) Wild's case, 8 Rep. 79, a. (f) Musgrave v. Cave, Willes, 322. Co. Litt, 722, a. Corbet's case, 7 Rep. 5. b. Bromfield v. Kirber, 11 Mod. 73. 2 Bl. Com. 33. (g) Gullett v. Lopes, 13 East, 348. (i) Ante, p. 368. (k) Per Kelynge, in Mellor v. Spateman, 1 Saund, 346. Bennett v. Reeve, Willes, 232; but see Co. Litt. 122, a. Weekly v. Wildman, 1 Ld. Raym. 405. 3 Bl. Com. 239. Woolrych on Commons, 75. Common in gross. For nuisance to a market. For disturbance in a pew. An action on the case lies, if a new market be erected near to an ancient market, held upon the same day (a), and it may be a nuisance, though it is held on a different day. (b) But where the grantee of a market under letters patent from the crown, suffered another to erect a market in his neighbourhood, and to use it for the space of twenty-three years without interruption, it was adjudged that such user operated as a bar to an action on the case for a disturbance of his market. (c) An action on the case also lies for obstructing the passage to the plaintiff's market. (d) An action on the case also lies for disturbing the plaintiff in the possession of a pew in a church, which he claims by prescription as appurtenant to a messuage in the parish (e), or by a faculty annexing it to a messuage. (f) A lay impropriator cannot grant a seat in the chancel of the church, so as to enable the grantee to bring trespass for a disturbance. (g) For disturbance An action on the case also lies for the disturbance of the plainin the enjoyment tiff in the enjoyment of the profits of his office (h), or for disof other posses- turbing him in the execution of his office. (i) So it lies for a sions and rights. lord of a manor who prescribes to have toll, and is disturbed in the collecting of it (k), or for a lord of a leet who is disturbed in holding his court (1), or in collecting the fines, amercements, &c. imposed at the leet. (m) So case lies by the owner of an ancient ferry against one who sets up a new ferry near to it (n), and by a lessor who is disturbed in entering to view, whether his lessee (a) 2 Rol. Ab. 140, I. 10. Com. Dig. Market, (C. 2). Vin. Ab. Nuisance, (G), pl. 2, 3. (b) Yard v. Ford, 2 Saund. 172, F. N. B. 184, A. note, (b). (c) Holcroft v. Heel, 1 Bos. & Pul. 400. See 2 Saund. 174, (notes) 5th edit. (d) 1 Rol. Ab. 106, l. 40. S Bl. Com. 236. (e) Stocks v. Booth, 1 T. R. 428. Mainwaring v. Giles, 5 Barn. and Ald. 361. Rogers v. Brooks, cited in 1 T. R. 431, (note). Com. Dig. Action on the case for disturbance, (A. S). As to what is presumptive evidence of a pre scriptive right, see post. (ƒ) Mainwaring v. Giles, 5 B. & A. $56. (g) Clifford v. Wicks, 1 Barn. & A. 498. (h) Berkley v. Lord Pembroke, Moor, 706. Com. Dig. action upon the case for disturbance, (A. 5). B. N. P. 76. (i) Shaw v. a Burgess of Colchester, 2 Mod. 228. Stanhope v. Ecquister, Latch, 87. Com. Dig. ubi sup. (k) 1 Rol. Ab.106, l. 43. in the enjoyment of other posses has committed waste (a), or for a parishioner who is prevented For disturbance from entering a vestry-room where he has a right to be present. (b) So in general an action on the case will lie for a disturbance in the enjoyment of any easement, as a right of landing nets on another man's ground. (c) With regard to the title of the plaintiff in this action, it was formerly held (d) that a party could not maintain an action for a nuisance in stopping the lights of his house, unless he had gained a right in the lights by prescription; but in several later cases it has been decided that evidence of an adverse enjoyment of the lights for twenty years or upwards unexplained, affords a presumption of a grant (e), which is sufficient to entitle the plaintiff to this action. The same law exists with regard to other easements, and incorporeal rights. Thus an adverse unexplained enjoyment of a right of way for above twenty years is sufficient to warrant the jury in presuming a grant of the way, even though such grant must have been made within twenty-six years, all former ways being at that time extinguished by operation of an inclosure act (ƒ); and so where the way has been used for thirty years, a grant may be presumed, though there had been an absolute extinguishment of the right of way some years before by unity of possession. (g) So in an action on the case for disturbing the plaintiff in the possession of a pew, of which he, and those under whom he claimed, had been in the uninterrupted possession for thirty-six years, the judge recommended it to the jury to presume a title in the plaintiff. (h) However, in another case it was adjudged, that though uninterrupted possession of a pew in the chancel of a church for thirty years, was presumptive evidence of a prescriptive right to the pew, in an (a) 1 Roll. Ab. 109, l. 5. (b) Com. Dig. Action upon the case for disturbance, (A. 6). (c) Gray v. Bond, 2 Br. and Bing. 667. (d) Bowry v. Pope, 1 Leon. 168. Cro. Eliz. 118, S. C. (e) Lewis v. Price, Dougal v. Wilson, Darwin v. Upton, reported 2 Saund. 175, (notes) 5th edit. (ƒ) Campbell v. Wilson, 3 East, 294. In cases of rights of way, &c. the origi nal enjoyment cannot be accounted for (h) Rogers v. Brooks, cited in 1 T. sions. By whom. |