Common - Definition - Law Dictionary Home Dictionary Definition common

Definition :

Common, a profit which a man has in the land of another; it derives its name from the community of interest which thence arises between the claimant and the owner of the soil, or between the claimant and other commoners entitled to the same right; all which parties are entitled to bring actions for injuries done to their respective interests, and that both as against strangers and against each other. It is called an incorporeal right, which lies in grant, as if originally commencing in some agreement between lords and tenants, for some valuable consideration which, by lapse of time, being formed into a prescription, continues, although there be no deed or instrument in writing which proves the original contract or agreement. It differs from a rent, principally in freedom of enjoyment on the one hand, and in freedom from obligation on the other; which the law expresses by the quaint antithesis that it lies not in render but in prender. It is also incidentally distinguished by its fruits being always taken in kind, and being in general not otherwise measured than by limiting the instruments of enjoyment. The Prescription Act (2 & 3 Wm. 4, c. 71), s. 1, enacts that after thirty years' enjoyment a right of common cannot be defeated by merely showing it commenced within time of memory, and after sixty years' enjoyment the right shall be absolute and indefeasible, unless it appear that the same was taken and enjoyed under some deed or writing.

There are four sorts of common, viz.:--

(1) Common of pasture, limited or unlimited, which is the right of feeding one's beasts in another's land, and this is subdivided into:

(a) Appendant, which is a privilege belonging to the owners or occupiers of arable land holden of a manor, to put upon its wastes their commonable beasts, viz., horses, kine, or sheep, such as either plough or manure the arable land granted.

(b) Appurtenant, which arises from no connection of tenure, nor from any absolute necessity, but may be extended to other beasts besides such as are generally commonable, as swine, goats, or geese. This can only be claimed by grant, or by title of prescription which supposes a now forgotten grant.

(c) Because of vicinage or neighbourhood where the tenants of two adjoining townships have suffered their cattle to range indiscriminately over both wastes, and it seems that either lord may put an end to it by erecting a fence. In close connection with this, and substantially of the same kind, is common of shack, or the right of persons occupying lands lying together in the same common field, to turn out their cattle after harvest, to feed promiscuously in that field.

(d) In gross or at large, which is neither appendant nor appurtenant to land, but is annexed to a man's person by granting it to him and his heirs by deed, or it may be claimed by prescriptive right, as by a parson of a church or a corporation sole. The right cannot be granted for an unlimited number of cattle.

(2) Common of piscary, a liberty of fishing in another's water. It is either appendant, appurtenant, or in gross.

(3) Common of turbary, a license to dig turf upon the land of another, or in the lord's waste; it may be either appendant or appurtenant, i.e., appendant or appurtenant to a house, and not to lands, for turfs are to be burnt in the house, or it may be in gross.

(4) Common of estovers or estouviers, or necessaries, a liberty of taking necessary wood, for the use or furniture of a house or farm from off another's estate. The Saxon word bote is used by us as synonymous with the French estovers. House-bote is a sufficient allowance of wood to repair, or to burn in the house; which latter is sometimes called fire-bote; plough-bote and cart-bote are wood to be employed in making and repairing all instruments of husbandry; and hay-bote or hedge-bote is wood for repairing of hays, hedges, or fences, See 2 Bl. Com. 32; Williams on Rights of Common.

The inclosure of commons is regulated by the (English) Inclosure Acts, but these Acts contain (see especially the (English) Inclosure Act, 1845 (8 & 9 Vict. c. 118), s. 30) many provisions for the protection of commoners and the formation of 'recreation grounds' and 'field gardens.'

The regulation of commons, for many years mainly provided for by the (English) Commons Act, 1876 (39 & 40 Vict. c. 56), is now mainly provided for by the Commons Act, 1899 (62 & 63 Vict. c. 30), which, though it does not repeal the Act of 1876, will probably supersede it as being too cumbrous and expensive in its procedure. The Act of 1899 enables urban and rural district councils to make regulations under the supervision of the Board of Agriculture. A district council may delegate its powers of management to a parish council, and a parish council may contribute to the expenses of management. Compensation, to be ascertained under the (English) Lands Clauses Acts, is given for interests taken away or injuriously affected by any scheme under the Act.

The (English) Commons Act, 1908 (8 Edw. 7, c. 44), enables the persons entitled to turn out animals on a common to make regulations as to the turning out of entire animals, but the regulations must be confirmed by the Board of Agriculture and Fisheries, and see the (English) Horse Breeding Act, 1918, s. 10.

The (English) Law of Property Act, 1925, ss. 193 and 194, contains provisions for lands which are Metropolitan Commons within the meaning of the Metropolitan Commons Acts, 1866 to 1898, or manorial waste, or commons which are wholly or partly situated within a borough or urban district and any lands which on the 1st January, 1926, were subject to rights of common and become assimilated to the above-mentioned commons by the lord of the manor or person entitled for the purposes of s. 193. That s. sets out and regulates the right of public access for the purposes of air and exercise under statutory conditions. S. 194 restricts building and fencing on commons. Under par. 4 of the 12th Sch. of the (English) L.P. Act, 1922, and enfranchisement of copyhold lands under that Act shall not deprive a tenant of a commonable right in respect of the enfranchised land and such right is to continue notwithstanding that the land has become freehold.

As to damage, see title MALICIOUS DAMAGE ACT.