Common

An lncorpo which consists in a profit which has in connection with one or moi in the land of another. Trustees of W( University of Pennsylvania v. Robinson, 12 S. & R. (Pa.) 32; Van Rensselaer v. Radcliff, 10 Wend. (N. Y.) 647, 25 Am. Dec Livingston v. Ten Broeck, 1G Johns. (N. Y. i 14, 8 Am. Dec. 287; Leyman v. AheeL 16 Johns. (X. Y.) 30; Thomas v. Inhabitants of Marshneld, 10 Pick. (Mass.) 864; 3 Kent 403. Common of digging, or common in the soil, is the right to take for one's own use part of the soil or minerals in another's lands; the most usual subjects of the right are sand, gravel, stones and clay. It is of a very similar nature to common of esand of turbary. Elton, Com. 109; Black, L. Diet. Common of estovers is the liberty of taking necessary wood, for the use of furniture of a house or farm, from another man's estate. This right is inseparably attached to the house or farm, and is not apportionable. If. therefore, a farm entitled to estovers be divided by the act of the parti/ among al tenants, neither of them can take estovers, and the right is extinguished; 2 Bla. Com. 34; Plowd. 381; Vai dcliff, 10 Wend. (N. Y.) 639, 25 Am, Dec. 582. It is to be distinguished from the riu'ht to estovers which a tenant for life has in the estate which he occupies. See Estovers. Common of pasture is the right of feeding one's beast on another's land. It is either appendant, appurtenant, because of vicinage, or in gross. Common of piscary is the liberty of fishing in another man's water. 2 Bla. Coin. 34. See Fishery. Common of shack. The right of persons occupying lands, lying together in the same common field, to turn out their cattle after harvest, or where lands were fallow, to feed promiscuously in that field; Steph. Com., 623; 1 B. & Aid. 710. Common of turbary is the liberty of digging turf in another man's ground. Common of turbary can only be appendant or appurtenant to a house, not to lands, because turves are to be spent in the bouse; 4 Co. 37; 3 Atk. 189; Noy 145; 7 Bast 127. The taking seaweed from a beach Is a commonable right in Rhode Island: Knowles v. Nichols. 2 Curt. C. C. 571, Fed. Cas. No. 7.S97; Kenyon v. Nichols, 1 R. I. 100; Hall v. Lawrence. 2 R. I. 21S. 57 Am. Dec. 715; 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 part of the commonwealth, ungranted and used as common; Va. Code, c. 62, § 1. In most of the cities and towns in the United States, 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. See Pabks. Where land thus appropriated has been accepted by the public, or where individuals have purchased lots adjoining land so appropriated, under the expectation excited by its proprietors that it should so remain, the proprietors cannot resume their exclusive ownership; Abbott v. Mills, 3 Vt. 521, 23 Am. Dec. 222; Emerson v. Wiley, 10 Pick. (Mass.) 310; Stiles v. Curtis, 4 Day (Conn.) 328; Proctor v. Ferebee, 36 N. C. 144, 36 Am. Dec. 34; Carr v. Wallace, 7 Watts (Pa.) 394. And see Mansfield v. Hawkes, 14 Mass. 440; Rogers v. Goodwin, 2 Mass. 475; White v. Smith, 37 Mich. 291; Emerson v. Thompson, 2 Pick. (Mass.) 475; Trustees of Western University v.;Robinson, 12 S. & R. (Pa.) 32; State v. Trask, 6 Vt. 355, 27 Am. Dec. 554.

Common Appendant

Common of pasture appendant is a right annexed to the possession of land, by which the owner thereof is entitled to feed his beasts on the wastes of the manor. It can only be claimed by prescription: so that it cannot be pleaded by way of custom; 1 Rolle, Abr. 396; 6 Coke 59. It is regularly annexed to arable land only, and can only be claimed for such cattle as are necessary to tillage, as horses and oxen to plough the land, and cows and sheep to manure it; 2 Greenl.

Cruise, Dig. 4, 5; Van Rensselaer v. Radcliff, 10 Wend. (N. Y.) 647, 25 Am. Dec. 5S2.

Common appendant may by usage be limited to any certain number of cattle; but where there is no such usage, it is restrained to cattle levant and couchant upon the land to which it is appendant; Digb. R. P. 156; 2 M. & R. 205; 2 Dane, Abr. 611, § 12. It may be assigned; and by assigning the land to which it is appended, the right passes as a necessary incident to it. It may be apportioned by granting over a parcel of the land to another, either for the whole or a part of the owner's estate; 4 Co. 36; 8 id.

78.

It may be extinguished by a release of it to the owner of the land, by a severance of the right of common, by unity of possession of the land, or by the owner of the land, to which the right of common is annexed, becoming the owner of any part of the land subject to the right; Bell v. R. Co., 25 Pa. 161, 64 Am. Dec. 6S7; Livingston v. Ten Common of estovers or of piscary, which may also be appendant, cannot be apportioned; 8 Co. 78.

But see Hall v. Lawrence, 2 R. I. 218, 57 Am. Dec. 715.

Common Appurtenant

Common appurtenant differs from common appendant in the following particulars, viz.: it may be claimed by grant or prescription, whereas common appendant can only arise from prescription; it does not arise from any connection of tenure, nor is it confined to arable land, but may be claimed as annexed to any kind of land; it may be not only for beasts usually commonable, such as horses, oxen, and sheep, but likewise for goats, swine, etc.; it may be severed from the land to which it is appurtenant, it may be commenced by grant; and an interrupted usage for twenty years is evidence of a grant. In most other respects commons appendant and appurtenant agree; 2 Greenl.

Cruise, Dig. 5; 30 E. L. & Eq. 176; 15 East 108.

Common because of Vicinage. The right which the inhabitants of two or more contiguous townships or vills have of intercommoning with each other. It ought to be' claimed by prescription, and can only be used by cattle levant and couchant upon the lands to which the right is annexed r and cannot exist except between adjoining townships, where there is no intermediate land; Co. Litt. 122 a; 4 Co. 38 a; 7 id.

5; 10 Q. B. 581, 589, 604; Smith v. Floyd, 18 Barb. (N. Y.) 523.

Common in Gross. A right of common which must be claimed by deed or prescription. It is a personal and not a prsedial right It has no relation to land, but is annexed to a man's person, and may be for a certain or indefinite number of cattle. It cannot be aliened so as to give the entire right to several persons to be enjoyed by each in severalty. And where it comes to several persons by operation of law, as by descent, it is incapable of division among them, and must be enjoyed jointly. Common appurtenant for a limited number of cattle may be granted over, and by such grant becomes common in gross; Co. Litt. 122 a, 164 o; 5 Taunt. 244; Ley man v. Abeel, 16 Johns. (N. Y.) 30; 2 Bla. Com. 34.

See Viner, Abr. Common; Bacon, Abr. Common; Com. Dig. Common; 2 Bla. Com. 34; 2 Washb. R. P.; Williams, Rights of Common (1880); 3 Holdsw. Hist. E. L. 120.