The most important profit a prendre, historically considered, is that of pasturing cattle on another's land, usually referred to as "common of pasture." Under the feudal system, the ney, 145 Iowa, 638, 139 Am. St. Rep. 456, 124 N. W. 901.

23. Co. Litt. 122a; 2 Blackst. Comm. 32, 34; Williams, Rights of Common, passim.

24. Co. Litt. 122a; 2 Pollock & Maitland, Hist. Eng. Law, 144;

Leake, Prop, in Land. 332.

25. Co. Litt. 122a; Williams, Rights of Common, 12, 18-30, 259-265.

26. Co. Litt. 122a; 2 Bl. Comm. 34; Smith v. Kemp. 2 Salk. 637.

27. 2 Bl. Comm. 35; Van Rensright existed in favor of the tenants of the manor as regards the waste land of the manor, - that is, the land not allotted to tenants or reserved by the lord as demesne land.28

Common of pasture involves the placing of the cattle on the land to eat the herbage, in this differing from a right to take herbage from another's land by cutting and transporting it.29

Common of pasture might, at common law, be "appendant," "appurtenant," "in gross," or "because of vicinage." Common appendant existed, as before suggested, in favor of each holder of arable land in a manor, as appertaining to such land, and involved the right to pasture, on the waste land of the manor, his "commonable" cattle. It could not be created after the statute of Quia Emptores, since a grant by the lord of the manor thereafter took the land granted out of the manor as regards tenure,30 and cannot, of course, exist selaer v. Radcliff, 10 Wend. (N. Y.) 639. The right to take estovers from another's land must be distinguished from the exclusive right of a tenant for life or years to take them from his own land, which has been previously considered. See, ante, Sec. 283, and 2 Blackst. Comm. 35, Chitty's note.

28. This right in the tenants of the manor to take profits from the waste land probably existed, before the introduction of feudalism into England, as a right in the inhabitants of the town or "vill" to utilize the lands which belonged to the community as a whole. After the introduction of feudalism and of the manorial idea, these community lands came to be regarded as bslonging to the lord, and consequently the right to take profits therefrom was regarded as a right to profits a prendre in another's land. The community lands of the town or vill were themselves a survival of the "mark" system, which existed in all Aryan communities. Digby, Hist. Real Prop. (5th Ed.) 192; Williams, Rights of Common, 37 et seq.; Maine, Village Communities, passim; 4 Kent, Comm. 441, note by Hon. 0. W. Holmes. In this country, traces of the mark system are to be found in the system of "commons" or "common lands" which existed in New England and also in the Spanish and French settlements. See Post, Sec. 418.

29. De la Warr v. Miles, 17 Ch. Div. 535; Potter v. North, 1 Saund. 353a, note; Williams, Rights of Common, 21.

30. Leake, Prop, in Land, 337, citing 2 Co. Inst. 85.

In this country. Common "because of vicinage" was a local custom of intercommoning, - that is, for cattle to stray from one common to another adjacent common, without creating any liability for trespass.31 It was based on custom, and has never existed in this country.32 Common of pasture "appurtenant" and "in gross" are rights of pasture annexed to a dominant tenement, or belonging to a person and his heirs, the terms being applied as in other cases of profits a prendre33 and these may exist in this country.