We think that the grant from Mr. Traphagen to the ice company, when construed with reference to what the parties had in contemplation, satisfies every element in the definition of an easement, and conflicts with nearly every element in the definition of a license.
After examining all of the exceptions to which our attention has been called, we find nothing that should reverse the judgment, which should, therefore, be affirmed, with costs.
II. Profits a prendre.
10 Wendell (N. Y.), 639. - 1833.
Trespass for entering upon certain land and carrying away timber.
By the Court, Savage, Ch. J. - Common or a right of common, is a right or privilege which several persons have to produce of the lands or waters of another. Thus, common of pasture is a right of feeding the beasts of one person on the lands of another; common of estovers is the right a tenant has of taking necessary wood and timber from the woods of the lord for fuel, fencing, etc.; common of turbary and piscary are in like manner rights which tenants have to cut turf or take fish in the grounds or waters of the lord. All these rights of common were originally intended for the benefit of agriculture, and for the support of the families and cattle of the cultivators of the soil. They are in general either appendant or appurtenant to houses and lands. There is much learning in the books relative to the creation, apportionment, suspension, and extinguishment of these rights, which fortunately in this country we have but little occasion to explain; but few manors exist among us as remnants of aristocracy not yet entirely eradicated. These common rights which were at one time thought to be essential to the prosperity of agriculture, subsequent experience, even in England, has shown to be prejudicial. In this country such rights are uncongenial with the genius of our government, and with the spirit of independence which animates our cultivators of the soil. In our State, however, we have the manors of Livingston and of Rensselaerwyck, in which these rights have existed, and to some extent do still exist, and we are obliged, therefore, to look into the doctrine of commons to ascertain the rights of parties and do justice between them.
Common of pasture is the principal of these rights, and, therefore, most of the cases found in the books relate to that species of common. This was appendant, appurtenant, in gross, or because of vicinage; of the last I shall take no notice, because it is not applicable to estovers. Common appendant is a right annexed to the. possession of arable land, by which the owner is entitled to feed his beasts on the lands of another, usually of the owner of the manor of which the lands entitled to common are a part. This kind of common must have existed from time immemorial, and can be claimed by prescription only, and is confined to such, and so many cattle as are necessary to plough and manure the land which is entitled to common, and which are levant and couchant, that is, so many as the land will sustain during the winter. Common appurtenant does not necessarily arise from any connection of tenure, but must be claimed by grant or prescription. It may be created by grant and may be annexed to any kind of land, whether arable or not. Common in gross has no relation to the tenure of land, but is annexed by deed or prescription to a man's person.
Common of estovers must, I apprehend, be either appendant or appurtenant; they are necessarily incident either to houses or lands. This right of common may exist by prescription and is then appendant, or be especially granted, and then it becomes appurtenant. 3 Cruise Dig. 83 to 90; 3 Black. Com. 33, 34. Whether this kind of common is apportionable is the principal question in this case. It seems to have been doubted heretofore whether common of pasture was apportionable, and we find the subject elucidated by Chief Justice Willes in Bennet v. Reave, Willes 227, as late as the year 1740. He says common of pasture appendant may be apportioned; for as the land is entitled to common only for such cattle as are necessary to plough or manure the land, the common cannot be surcharged by any number of divisions or subdivisions in consequence of alienation. It had been contended in that case, that the owner of every parcel, even a yard, was entitled to common for beasts of the plough as well as other cattle, on the assumed ground that the tenant was bound to plough the lord's land, and, therefore, must have a team, and, of course, must have them pastured; but it was clearly shown that the team entitled to pasture was such as was necessary for ploughing the land entitled to common, and it made no difference into how many hands it went; no more team was necessary for ploughing, and no more cattle necessary for manuring. Such common is apportionable, and the common being incident to the land, passed with it in such proportions as the land should be divided into; the assignee of half, for instance, of the land, was entitled to half the right of common. This case was of common appendant, and of this kind of common, of pasture, it is said, it is apportionable either when part is purchased by the lord or any other person. Common appurtenant of pasture is also apportionable by alienation of part of the land, but not if the person entitled to it purchases part of the land out of which the common is to be had, 3 Cruise, 92, 3; Co. Litt. 122a.; and the reason assigned is because common appurtenant is against common right, whereas common appendant is of common right. 4 Co. 36; 8 Co. 78.
The authorities also inform us that common of estovers cannot be apportioned. Lord Coke says, " If a man have reasonable estovers, as housebote, etc., appendant to his freehold, they are so entire that they shall not be divided between coparceners." Co. Litt. 164b; 3 Cruise, 93. Lord Mountjoy's case is there stated, which was that of common turbary; and it was resolved that he could not assign his interest to one or more, for that might work a prejudice and surcharge to the tenant of the land, and, therefore, if such an inheritance descended to parceners, it cannot be divided. In Lut-trel's case, 4 Co. 87, Lord Coke says, "So if a man has estovers by grant or prescription to his house, although he alters the rooms and chambers of this house, as to make a parlor where it was the hall, or the hall where the parlor was, and the like alterations of the qualities and not of the house itself, and without making new chimneys, by which no prejudice accrues to the owner of the wood, it is not any destruction of the prescription, for then many prescriptions would be destroyed; and although he builds a new chimney or makes a new addition to his old house, by that he shall not lose his prescriptions, but he cannot employ or spend any of his estovers in the new chimneys, or in the part newly added." 3 Cruise, 89. Estovers appurtenant to an house cannot be separated from the house, but must be spent on the house. 3 Cruise, 89; Plowd. 382. These authorities seem to be express that common of estovers cannot be apportioned, and for the reason that thereby the land out of which the estovers are to be taken would be surcharged. If, for instance, estovers are granted as belonging to a farm of 200 acres, so long as this is one farm, there is but one house and probably not more than two chimneys; but if this farm is divided into two, another house becomes necessary and double the number of chimneys must be supplied. This would be an injury to the lord. So also of fences and buildings; by dividing the farm into two, more fences and buildings become necessary, and if both are to be supplied from the woods of the lord, an increased quantity would be taken, where, by the grant itself, only estovers for one farm were allowed. As these estovers cannot be apportioned, neither of the tenants among whom the farm is divided can have them, and, therefore, they become extinguished. Common of estovers must be considered as an entire thing, not to be divided; and in case of a common person, if an entire thing be divided or extinguished in part by the act of the party, it is an extinguishment of the whole; but otherwise where it is by the act of God or the law. II Vin. 567, pl. 4, tit. Extinguishment, P. 6 Co. 1; Bruerton's Case, 4 Co. 37; Turringham's Case.