COMMON, RIGHTS OF, in law, is the right of taking a profit in the land of another in common with others. It may either be such a right as is enjoyed in common with others to the exclusion of the owner of the land, or it may not exclude the owner of the land. The commoner has no interest in the soil of the land on which he has a right of common.
The profits which may be the subjects of common are the natural produce of land (or water, which is included in the legal signification of land); such as grass and herbage, turf, wood, and fish. The commons relating to these subjects are accordingly called common of pasture, turbary, estovers, and piscary. Other things which cannot be called products of land, but rather part of the land itself, as stones and minerals, may also be the sub jects of common right. Rights of way and other accommodations in the land of another, though enjoyed in common by several persons, do not bear that name, but are called Easements.
Of all commons, that of pasture is the most frequent. It is the right of taking grass and herbage by the mouths of graz ing animals. It differs from that property which may exist in the vesture or vege table produce of the land, without any property in the land itself, and which is a corporeal hereditament; whereas all rights of common are incorporeal rights. The same remark applies to other rights of common, the subjects of which—as for instance woods and mines—may be long as corporeal hereditaments to one, while the land generally belongs to an other.
Common of turbary is the right of taking turf for fuel ; and common of estovers is the right of taking wood for fuel, and for the repairs of houses, fences, and implements of husbandry. These supplies of wood are called fire bote, house bote (which includes the former), plough bote, and hedge or hay bote. These estovers or botes may also be taken by every tenant for life or years from the land which he himself occupies, but in that case they are not subjects of common rights.
Common of piscary is the right of fishery in rivers not navigable; the right of fishing in the sea and in navigable rivers is common to all persons in the realm.
The extent of rights of common de pends very much upon the title to them. There are four titles on which such rights may be founded ; common right (which seems to be nearly the same thing as the common law), prescription, custom, and grant (deed).
The title by common right arose with the creation of manors, when land was granted out in fee to be held of the grantor as lord. As such grants were forbidden by the statute "quia emptores" (18 Edw. 1. c. 1), it follows that all commons ap pendant now existing must have been created before the date of that statute. The law allowed to every such grantee, as common right, common of pasture, tarbary, estovers, and piscary in the waste of the lord, or that part of his lands which was neither taken by him into his de mesnes or actual occupation, nor granted out by him to others. These implied rights of common, however, were allowed no further than necessity seemed to re quire, and rights of common thus origi nating are still confined nearly within their ancient limits. As they originated in grants of land, they were considered as inseparably appendant to the land, so that they could not be separated from the land without becoming extinct. Accordingly what is called Common Appendant is a right of common which a man enjoys in respect of his title to a piece of land. The right is appendant or attached to the land. The common of pasture was confined to the purpose of maintaining from seed-time to harvest the cattle of the commoner which were used by him in cultivating his land, and which that land would maintain through the winter, or which were, as the law styled it. levant and couchant upon it. Horses, oxen, kine, and sheep, used either for tilling or ma nuring land, were the commonable cattle. The land to which the common was ap pendant must have been originally arable, though the subsequent change of arable into meadow, &c. does not extinguish the right, Common of turbary appendant was confined to the purpose of supplying fuel for the domestic use of the tenant ; and so strictly must this right be still confined within its ancient limits, that it must be appendant to an ancient messuage or house, and no more turves can be taken under it than will be spent in the house. Common of estovers appendant gives, as it gave originally, only the right of taking wood for the repair of ancient fences and houses. Common of piscary appendant was only for supplying the tenant's own table with fish, and it must be still limited to this purpose.