Rights of common.

Common of pasture.


(h) Ante, p. 237.

(i) Stat. 4 & 5 Anne, c. 16, s. 9; ante, p. 238.

(k) Ante, p. 115.

(l) 41 Geo. III. c. 10'.); see also stats. 3 & 4 Will. IV. c. 87; 3 & 4 Vict. c. 31.

(m) Stat. 8 & 9 Vict. c. 118, amended and extended by stats. 9 & 10 Vict. c. 70; 10 & 11 Vict. c..Ill; 11 & 12 Vict. C. 99; 12 & 13 Vict. c. 83; 15 & 16 Vict. c. 79; 17 & 18 Vict. c. 97; 20 & 21

Vict. c. 31; 22 & 23 Vict. c. 43; and 31 & 32 Vict. c. 89; and continued by stats. 14 & 15 Vict. c. 53; 21 & 22 Vict. c. 53; 23 & 24 Vict. c. 81; and 25 & 26 Vict. c. 73. The stat. 8 & 9 Vict. c. 118, contains (sect. 147) a remarkably useful provision, authorizing exchanges of lands whether inclosed or not. And this provision has since been extended to partition between owners of undivided shares (stat. 11 & 12 Vict. c. 99,

Inclosure Commissioners.


Metropolitan commons.

Common fields.

s. 13, ante, p. 13") and to other hereditaments, rights and easements (stat. 12 & 13 Vict. c. 83, s. 7), and in other respects (see stats. 15 & 16 Vict. c. 79, ss. 31, 32; 17 & 18 Vict. c. 97, ss. 2, 5; 20 & 21 Vict. c. 31, ss. 4 - 11; 22 & 23 Vict. c. 43, ss. 10, 11). Socage lands may he exchanged for gavelkind. Minet v. Lemon, 20 Beav. 269; 7 De Gex, M. & G. 340.

(n) Stat. 10 & 11 Vict. c. 38; also the statutes mentioned, ante, pp. 29, 30.

(o) Stat. 29 & 30 Vict. c. 122, amended by stat. 32 & 33 Vict. c. 107.

(p) Stat. 4 & 5 Will. IV. c. 30.

(q) Stat. 6 & 7 Will. IV. c. 115, extended by stat. 3 & 4 Vict, c. 31. See also stats. 8 & 9 Vict, c. 118; 9 & 10 Vict. c. 70; 10 & 11 Vict. c. Ill; 11 & 12 Vict. c. 99; 12 & 13 Vict. c. 83; 15 & 16 Vict. c. 79; 17 & 18 Vict. c. 97; 20 & 21 Vict c. 31.

(r) Co. Litt. 122 a; Bac. Ahr. tit. Extinguishment (C). See, however, Lord Dunraven v. Llen-ellyn, 15 Q. B. 791, ante, p. 115, n. (j).

In connection with the subject of commons, it may be mentioned that strips of waste land betAveen an inclo-sure and a highway, and also the soil of the highway to the middle of the road, presumptively belong to the owner of the inclosure{t). And a conveyance of the inclosure (u), even by reference to a plan which does not comprise the highway (v), will carry with it the soil as far as one-half the road. But if the strips of waste land communicate so closely to a common as in fact to form part of it, they will then belong to the lord of the manor, as the owner of the common (w). Where a public way is founclrous, as such ways frequently were in former times, the public have by the common law a right to travel over the adjoining lands, and to break through the fences for that purpose (a;). It is said that in former times the landowners, to prevent their fences being broken and their crops spoiled when the roads were out of repair, set back their hedges, leaving strips of waste at the side of the road, along which the public might travel without going over the lands under cultivation. Hence such strips are presumed to belong to the owners of the lands adjoining (y). Where lands adjoin a river, the soil of one-half of the river to the middle of the stream is presumed to belong to the owner of the adjoining lands (z). But if it be a tidal river, the soil up to high water mark appears presumptively to belong to the Crown (a). The Crown is also presumptively entitled to the sea-shore up to high water mark of medium tides (b); although grants of parts of the seashore have not unfrequently been made to subjects (c); and such grants may be presumed by proof of long continued and uninterrupted acts of ownership (d). A sudden irruption of the sea gives the Crown no title to the lands thrown under water (e), although when the sea makes gradual encroachments, the right of the owner of the land encroached on is as gradually transferred to the Crown (f). And in the same manner when the sea gradually retires, the right of the Crown is as gradually transferred to the owner of the land adjoining the coast (g). But a sudden dereliction of the sea does not deprive the Crown of its title to the soil (h).

Advowson appendant.

Strips of waste by the side of roads.

(s) Litt. s. 183; Co.Litt. 121 b.

(t) Doe d. Pring v. Pearsey, 7 B. & C. 304; Scoones v. Mor-rcll, 1 Beav. 251.

(u) Simpson v. Dendy, 8 C. B., N. S. 433.

(v) Berridge v. Ward, 30 L..J.,

C. P. 218; IO C. B.,N. S. 400.

(w) Grose v. West, 7 Taunt. 39; Doe d. Barrett v. Kemp, 2 Bing. N. C. 102'.

(x) Com. Dig. tit. Chimin, (D. 6); Dames v. Hawkins, 8 C'. B., N. S. 848

Soil of river.


(y) Steel v. Prickett, 2 Stark. 468.

(z) Hale de jure maris, ch. 1; Wisha/rt v. Wylie, 2 Stuart, Thomson, Milne, Morison & Kinnear's Scotch Cases, H.L. 68; Bickett v. Morris, L. Rep. 1 Scotch Appeals, 47.

(a) Hale de jure maris, ch. 4, p. 13; Ga/in v. The Freefishers of Whitstable, 11 H. of L. Cas. 192.

(b) Attorney-General v. Cham-hers, 4 De Gex, M. & G. 206; The Queen v. Gee, 1 Ellis & Ellis, 1068.

(c) Seratton v. Brown, 4 B. & C. 483, 495.

(d) The Duke of Beaufort v. The Mayor, & c. of Swansea, 3 Ex. 413; Calmady v. Rome, C> C. B. 861; The Freefishers of Whitstable v. Gann, 11 C. B., N. S. 387.

(e) 2 Black. Com. 262.

(f) Re Hull & Selby Railway, 5 Mee. & Wels. 327.

(g) 2 Bl. Com. 262; The King v. Lord Yarborough, 3 B. & C. 91; 5 Bing. 163.

(h) 2 Black. Com. 262.

2. Incorporeal hereditaments appurtenant to corporeal hereditaments are not very often met with. They consist of such incorporeal hereditaments as are not naturally and originally appendant to corporeal hereditaments, but have been annexed to them, either by some express deed of grant or by prescription from long enjoyment. Rights of common and rights of way or passage over the property of another person are the principal kinds of incorporeal hereditaments usually found appurtenant to lands. When thus annexed, they will pass by a conveyance of the lands to which they have been annexed, without mention of the appurtenances (i); although these words, "with the appurtenances," are usually inserted in conveyances, for the purpose of distinctly showing an intention to comprise such incorporeal hereditaments of this nature as may belong to the lands. But if such rights of common or of way, though usually enjoyed with the lands, should not be strictly appurtenant to them, a conveyance of the lands merely, with their appurtenances, without mentioning the rights of common or way, will not be sufficient to comprise them (k). It is, therefore, usual in conveyances to insert at the end of the "parcels" or description of the property a number of "general words," in which are comprised, not only all rights of way and common, etc, which may belong to the premises, but also such as may be therewith used or enjoyed (l).