Rights Of Common, the use for certain purposes of land belonging to another. In the ancient law they were designated as common of pasture, of piscary, of turbary, and of estovers, and this classification is retained by Blackstone; but it lacks precision, for piscary does not belong to lands at all; and again, the right to the use of the water for fishing, etc, is in many cases all the estate that can be claimed by any one, and there are instances where such use is common to all persons without distinction. There is but one case which would come within the definition, and that is common of piscary in inland waters, the land under which is by the common law held to belong to the owner of the soil adjoining the water. This would give such owner the exclusive use of the water, except for navigation, but a prescriptive right may be acquired by another having no interest in the fee. The other rights relate altogether to husbandry, and consist of the right to pasture cattle or other animals belonging to farmers upon lands of another, and to cut turf and wood for necessary fuel and repairs. The common of pasturage is the most important of these, and has been treated of in the books much more fully than the others, but the principles applicable to each are substantially the same.
This right is in the old cases held to be appendant, appurtenant, because of vicinage, or in gross. It was appendant when it belonged to arable lands which were originally part of the manor in which the common was claimed, and the commonable right was in such case limited to beasts of the plough, and such as were used for manure. Common appurtenant had no necessary connection of tenure, but might be claimed in other manors than that to which the land whereto the common was appurtenant originally belonged. Nor was it limited to any particular animals, but included every description, as hogs, goats, etc, as well as those which were used in tillage. The difference in origin between these two was that the former grew out of the original tenure, and was a general right incident to all smaller estates parcelled out from larger ones, which did not need prescription to sustain; the latter was founded solely upon grant, or upon prescription which always implied a grant. Both continued to exist notwithstanding the alienation of the lands to which the common was appendant or appurtenant, and in case of alienation of part of such lands, the alienee acquired a commonable right in the proportion the lands conveyed bore to the entirety to which the right originally belonged.
This equitable principle was adopted to prevent the overcharge of commonable lands by the multiplication of rights from the successive division of estates, so that there could be no increase of the original right; but whatever number of tenants became entitled, they could each have only their proportionate share. Thus the claim of a tenant who by the process of subdivision had become the proprietor of one yard of land, but set up a right of common appendant for the pasturage of 64 sheep (which was the whole right that belonged to the entirety of the original premises), was rejected. (Bennett v. Reeve, Willes's Rep., 227.) This case attracted much attention on account of the great amount of learning and ability which it elicited, but the principle had been long before recognized by Coke as applicable both to common appendant and appurtenant. In Wilde's case, 8 Coke's Rep., 156 (Coke being at that time chief justice of the common pleas, in which the case was argued), it was held: 1, that common appendant or appurtenant was apportionable; 2, that the commonable land ought not to be subject to any other or greater charge than originally existed; though the court perhaps erred in assuming as matter of fact that there could be no increase if limited to cattle levant and couchant on the original premises, although the land might have been subsequently divided among several owners; 3, that in case of purchase of a part of the commonable land by a tenant claiming a right of common appendant, the right is diminished in proportion to the land purchased; but in the case of common appurtenant, it would be wholly extinguished by such purchase.
And it was said in this case that if alienation was not allowed, all common appurtenant in England would be destroyed, for no land continues in so entire a manner, every acre together with another, as it had been ab initio, but for preferment of younger sons, advancement of daughters, payment of debts, etc, part has been severed. In Tyr-ringham's case, 4 Coke, 36, the origin of common appendant is thus stated: "When a lord enfeoffed another of arable land to hold of him in socage (per servitium socae), as every such tenure at the beginning was, the feoffee should have common of the lord's wastes for his cattle which ploughed and manured his land; because it was tacite implied in the feoffment, for the feoffee could not plough and manure the land without cattle, and they could not be kept without pasture. The second reason was for the maintenance and advancement of tillage, so that such common appendant is of common right, and it is not necessary to prescribe therein." In case of the purchase, by the proprietor of the commonable lands, of any part of the lands to which common is appendant or appurtenant, the right is wholly extinguished as to the purchased lands, and the same rule if the whole should be purchased.
Unity of possession of the lands to which and the lands in which the common belongs is an extinguishment of the right. It has long been settled that the proprietor of lands in which there is a right of common may enclose and improve part, provided he leave a reasonable amount for common. - Common because of vicinage is when the inhabitants of towns contiguous to each other have intercommoned without hindrance on either side. Yet this is merely permissive so far as to excuse what in strictness is a trespass; but no length of time, according to the opinion of Blackstone, will establish a prescription, but either town may bar out the other. - Common in gross is not attached to lands at all, but merely to the person. This right is not, however, multipled according to the number of a man's heirs. By the English law, if the right descend to several, as in the case of coparceners (i. e., where the descent is to daughters), the eldest shall take, but be liable to contribution. In the United States a different rule is held, viz.: that all the heirs must jointly possess or convey. - The right of common has been comparatively less important in this country than in England; but the principles of the common law have been, with few exceptions, recognized here.
It would probably not be admitted in any of the states, not even in those newest settled, that the grant of a piece of land parcel of a larger tract held by the grantor would carry with it common of pasturage or fuel. It can arise only by express grant or by prescription, which, as before mentioned, is always founded upon a supposed grant. The common of estovers, or the right to take wood for fuel, or for other use of the house or farm of the party entitled on the land of another, is held in New York not to be apportionable; so that if partition is made of the premises among several, without reserving the right of common to one, it is gone entirely. - Other somewhat analogous privileges are sometimes spoken of as rights of common; as where the inhabitants of a town or village are permitted to pasture their beasts upon lands owned by the municipality, or in the public highways.