Common Or Right Of Common

English Law: Common or Right of Common in the Past

English law. An encorporeal hereditament, which consists in a profit which a man has in the lands of another. 12 S. & R. 32; 10 Wend. R. 647; 11 John. R. 498; 2 Bouv. Inst. 1640, et seq.

Developments

Common is of four sorts; of pasture, piscary, turbary and estovers. Finch’s Law, 157; Co. Litt. 122; 2 Inst. 86; 2 Bl. Com. 32.

Details

Common of pasture is a right of feeding one’s beasts on another’s land and is either appendant, appurtenant or in gross.

Other Aspects

Common appendant is of common right and it may be claimed in pleading (i.e. the formal allegations by the parties of their respective claims and defenses) as appendant, without laying a prescription. Hargr. note to 2 Inst. 122, a note.

More Information

Rights of common appurtenant to the claimant’s land are altogether independent of the tenure and do not arise from any absolute necessity; but may be annexed to lands in other lordships or extended to other beasts besides. such as are generally commonable.

Other Issues

Common in gross or at large, is such as is neither appendant nor appurtenant to land, but is annexed to a man’s person. All these species of pasturable common, may be and usually are limited to number and time; but there are also commons without stint, which last all the year. 2 Bl. Com. 34.

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Common of piscary is the liberty of fishing in another man’s water. lb. See Fishery.

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Common of turbary is the liberty of digging turf in another man’s ground. Ib.

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Common of estovers is the liberty of taking necessary wood-for the use or furniture of a house or farm from another man’s estate. Ib.; 10 Wend. R. 639. See Estovers.

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The right of common is little known in the United States of America, yet there are some regulations to be found about this subject. The constitution (see more about this popular legal topic in the U.K. encyclopedia) of Illinois (see more about this U.S. State laws here) gives for the continuance of certain commons in that state. Const. art. 8, s. 8.

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All unappropriated lands on the Chesapeake Bay, on the Shore of the sea or of any river or creek and the bed of any river or creek, in the eastern parts of the commonwealth, ungranted and used as common, it is declared by statute in Virginia (see more about this U.S. State laws here) , must stay so and not be depending on grant. 1 Virg. Rev. C. 142.

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In most of the cities and towns in the United States of America, there are considerable tracts of land appropriated to public use. These commons were generally laid out with the cities or towns where they are found, either by the original proprietors or by the early inhabitants. Vide 2 Pick. Rep. 475; 12 S. & R. 32; 2 Dane’s. Ab. 610; 14 Mass. R. 440; 6 Verm. 355. See, in general, Vin. Abr. Common; Bac. Abr. Common; Comyn’s Digest (A digest of the laws of England, 1822) Common; Stark. Ev. part 4, p. 383; Cruise on Real property (see more about this popular legal topic in the U.K. encyclopedia), h. t.; Metc. & Perk. Dig. Common and Common lands and General fields. [1][rtbs name=”history-of-english-law”]

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Notes and References

1. Partialy, this information about common or right of common is based on the Bouvier´s Law Dictionary, 1848 edition. There is a list of terms of the Bouvier´s Law Dictionary, including common or right of common.

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