COMMON. An incorporeal hereditament, which consists in a profit which one man has in connection with one or more others in the land of another. Trustees of Western University of Pennsylvania v. Robinson, 12 S. & R. (Pa.) 32; Van Rensselaer v. Rad cliff, 10 Wend. (N. Y.) 647, 25 Am. Dec. 582; Livingston v. Ten Broeck, 16 Johns. (N. Y.) 14, 8 Am. Dec. 287; Leyman v. Abeel, 16 Johns. (N. Y.) 30; Thomas v. Inhabitants of Marshfield, 10 Pick. (Mass.) 364; 3 Kent 403.
Common of digging, or common in the soil, is the right to take for one's own use part lof 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 estovers and of turbary. Elton, Com. 109; Black, L. Diet.
Common of estovers is the liberty of tak ing necessary wood, for the use of furniture of a house or farm, from another man's es tate. 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 sever al tenants, neither of them can take estovers, and the right is extinguished; 2 Bla. Com. 34; Plowd. 381; Van Rensselaer v. Radcliff, 10 Wend. (N. Y.) 639, 25 Am. Dec. 582. 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 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 fish ing in another man's water. 2 Bla. Com. 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. & Ald. 710.
Cononon of turbary is the liberty of dig ging turf in another man's ground. Com
mon of turbary can only be appendant or appurtenant to a house, not to lands, be cause turves are to be spent in the house; 4 Co. 37; 3 Atk. 189; Noy 145; 7 East 127.
The taking seaweed from a beach is a com monable right in Rhode Island ; Knowles v. Nichols, 2 Curt. C. C. 571, Fed. Cas. No. 7,897; Kenyon v. Nichols, 1 R. I. 106; Hall v. Lawrence, 2 It. I. 218, 57 Am. Dec. 715 ; In Virginia there are statutory provisions concerning the use of 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 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 consitlerable 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 PARKS.
Where land thus appropriated has been accepted by the public, or where individuals have purchased lots adjoining land so appro priated, 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. Thomp son, 2 Pick. (Mass.) 475 ; Trustees of West ern University v. 'Robinson, 12 S. & R. (Pa.) 32; State v. Trask, 6 Vt. 355, 27 Am. Dec. 554.