Lord Coke also says, "If a man have reasonable estovers, as housebote, heybote, etc., appendant to his freehold, they are so entire as they shall not be divided between coparceners." Co. Litt. 164b. In answer to the question, what shall become of such inheritances? he says it appears by the books that the eldest shall have them, and the others a contribution; but if no other property descended from which contribution could be had, then the parceners should have alternate enjoyment, or, in case of piscary, one shall have the first fish and another the second; and so of a toll-dish, where the hereditament was the toll of a mill. If, however, that doctrine were applicable here, it would only relate to descents, not alienation by deed; and even as to descents, it has been held that one of several heirs to whom a right of estovers descended, could not alien his share so as to authorize the assignee to enter and cut wood. Leyman v. Abeel, 16 Johns. R. 30. This case of Leyman v. Abeel recognizes the doctrine which I have advanced, that estovers are not apportionable. There one of the proprietors of the Catskill patent devised certain lands to his two sons, and gave each an undivided moiety of his right in the undivided lands; he also devised portions of lands to each of his three daughters and to a granddaughter. He then gave to each of his children liberty of cutting wood and taking stone from any of his undivided lands in common forever. The land subject to common became the property of the plaintiff. One of the five children of the proprietor, Nelly Abeel, died in 1809, leaving four children, one of whom conveyed his right to cut wood and carry away stone to the defendant, who did cut and carry away five loads of wood, for which the suit was brought. It was held that the right of Nelly Abeel descended to all her children, but that the right to cut wood, although descendible and alienable, could not be enlarged so as to defeat the intention of the devisor, by imparting the entire right to be enjoyed by each; that one could not alone convey any right - of course one alone had no right to cut wood; but from this case it would follow, that as the right was an entirety and had devolved by operation of law upon four, although they could not enjoy it severally, they might jointly convey it to one who might enjoy it in severalty as an entirety. It follows also from the doctrine of this case that the owner of such a right cannot divide it, i. e, by the act of the party; if he conveys part of the lands entitled to common, granting the right, it cannot be enjoyed. The common belongs to the whole farm as an entirety, not to parts of it. This would enlarge the right to the prejudice of the land out of which the common was to be taken. As no one portion of the land entitled to the common could enjoy it, it is necessarily extinguished; and being extinguished, it can be revived only by a new grant. It is contended by the counsel for the defendant in error, that the case of Livingston v. Ten Broeck, 16 Johns. R. 14, contains a contrary doctrine. It was conceded that the question of extinguishment did not arise in that case, but the learned judge who gave the opinion of the court does say that common appurtenant can be apportioned, and he refers to several cases as sustaining the position, all of which cases are cases of common pasture.

It will be seen, by applying these principles to this case, that Jacob Truax was entitled to common; but when he conveyed his farm, on the 15th December, 1769, part to one son and part to another, thereby creating two farms out of the one entitled to common, such right being an entirety, not being apportionable, could not be enjoyed by either, and, of course, was extinguished. This is the main point in the case, and is decisive of it.

Several other questions were raised and discussed; such as whether the lord had a right to enclose any part of the common; and if so, whether the lease in the present case was such an improvement as would exempt the locus in quo from being subject to the right of common; and whether the plaintiff had such a possession as would entitle him to maintain trespass, which questions I will notice, but not discuss at large. 1. The possession of the plaintiff was sufficient against a stranger; he showed title to lands which were not in the actual possession of any other; he was therefore in possession, as in such cases the possession follows the title. 2. There is no doubt that the lord has a right to improve his waste lands, provided he leaves enough for those who are entitled to common. There can be as little doubt, I think, that the improvement, to bar a common, must be an actual bona fide improvement; not a mere possession fence, run around a piece of woods. But as I hold the right of estovers in this case was gone, the defendant and those whose estate he represents have no right to raise that question; they are mere strangers, and as against such the plaintiff's title and possession were sufficient.

The law is established in England and recognized in the case of Livingston v. Ten Broeck, that if the commoner purchases part of the land subject to common, if the right of common be apportiona-ble, it shall be apportioned, otherwise the whole is extinguished; but that principle seems to be not applicable here. The John Truax farm was purchased by John Tayler in 1791, long before he had any interest in the Jacob Truax farm, which was entitled to common. The ground of that extinguishment is this: that the commoner has v voluntarily consented to the diminution of the common out of which his pasture or estovers were to be enjoyed; and where there can be no apportionment, there must be an extinguishment.

Upon the whole case, therefore, I am of opinion: 1. That the plaintiff, as against the defendant, has shown a sufficient possession of the locus in quo; 2. That common of estovers is not apportiona-ble, and, of course, that though Jacob Truax was entitled to estovers, yet his sons, to whom his farm was conveyed in parcels, and their assigns, never had any such right; and 3. That consequently the defendant was a trespasser in cutting the rails in question, and the plaintiff should have recovered in the court below.