Common

As an adjective, — owned by several; usual; habitual. As a noun, — an incorporeal hereditament, which consists in a profit which one man has in connection with one or more others in the land of another.

12 Serg. & R. (Pa.) 32; 10 "Wend. (N. Y.) 647; 11 Johns. (N. Y.) 498; 16 Johns. (N. Y.) 14, 30; 10 Pick. (Mass.) 364; 3 Kent, Comm. 403.

Common of Estovers. 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 party among several tenants, neither of them can take estovers, and the right is extinguished.

2 Bl. Comm. 34; Plowd. 381; 10 Wend. (N. Y.) 639; 1 Barb. (N. Y.) 592.

It is to be distinguished from the right to estovers which a tenant for life has in the, estate which he occupies. See "Estovers." Common of Pasture. The right of feeding one's beasts on another's land. It is either appendant, appurtenant because of vicinage, or in gross. Common of Piscary. The liberty of fishing in another man's water.

2 Bl. Comm. 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 to feed promiscuously in that field.

Wharton; 2 Steph. Comm. 6; 1 Barn. & Aid. 710.

Common of Turbary. 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 house.

4 Coke, 37; 3 Atk. 189; Nov. 145; 7 East, 127, Common Appendant.

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.

Common Appurtenant

This 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; 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 uninterrupted usage for twenty years is evidence of a grant. In most other respects, commons appendant and appurtenant agree.

2 Greenl. Cruise, Dig. 5; Bouv. Inst, note 1650; 30 Eng. Law & Eq. 176; 15 East, 108.

Common Because of Vicinage. The right which the inhabitants of two or more contiguous townships or villas have of inter-commoning 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, and cannot exist except between adjoining townships, where there is no intermediate land.

Co. Litt. 122a; 4 Coke, 38a; 7 Coke, 5; 10 Q. B. 581, 589, 604; 19 Q. B. 620; 18 Barb. (N. Y.) 523.

It is, indeed, only a permissive right, intended to excuse what, in strictness, is a trespass in both, and to prevent a multiplicity of suits, and therefore either township may inclose and bar out the other, though they have intercommoned time out of mind.

2 Bl. Comm. 33; Co. Litt. 12a; Bracton, fol. 222.

Dr. Wooddeson observes that Blackstone's account of common pur cause de vicinage is not properly a definition, but rather a descriptive example or illustration, there being other occasions when the excuse for trespass may be used.

2 Wooddeson, Lect. 50.

Common In Gross. A right of common which must be claimed by deed or prescription. It has no relation to land, but is annexed to a man's person, and may be for a certain or an 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 descents, 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. 122a, 164a; 5 Taunt. 244; 16 Johns. (N. Y.) 30; 2 Bl. Comm. 34. See, generally, Viner, Abr.; Bac. Abr.; Comyn, Dig.; 2 Sharswood, Bl. Comm. 34 et seq.; 2 Washb. Real Prop. 4.