I. Common of Estovers.- ESTOVERS, from a Norman word, either signifying to furnish or to sustain, is the profit which a man has in the soil of another, to cut or prune from his forest or other wastes wood for his building, enclosing, and firing, or other necessary purposes. * The right to this common, like to the common of pasture, may be appendant, appurtenant, or in gross; but it may not be by cause of vicinage, the reason which allows the common of pasture by vicinage not here applying. We have already remarked, that the term Estovers includes as its parts house-bote, ploughbote and cart-bote, and hay-bote. The cases in the books which distinguish when this right is to be pleaded as a custom, and when as a prescription, are of little application to the purpose of this introduction. It is perhaps sufficient to observe, that the exercise of this right is governed by rules strictly analogous to those laid * Bracton, 136. down as governing the exercise of the common of pasture. Thus the claim must be in respect of an ancient tenement; for even if a man have a common of this nature by grant, he cannot build new houses, and extend his common right to these.* So, if there be a prescription for fire-bote to burn in a hall, this will not extend to the consumption upon the same premises after they have been converted into a kitchen or a malt-house.† But if a house be enlarged, the fire-bote shall remain to the old chimneys; or if it be rebuilt upon the old site. And it is a general rule, that the alteration of the quality or name of part of a house does not cause any prejudice to the estovers and services attached to it. § Plough-bote, cart-bote, and hay-bote, if not in gross, must be necessarily appendant or appurtenant to land; and in this case of estovers we find especially marked the distinction between common appendant and common appurtenantcommon claimed by custom, and common claimed by prescription. Custom is the usage of a right throughout some ancient district, comprising many claimants within its circuit; prescription is the continual usage of a particular private right. A custom, however, † Id. * 4 Rep. 86. to take a profit in alieno solo has been adjudged bad *, except in the case of copyholders. Thus, in Selby v Robinson †, a custom was set up to the effect that all the poor householders within the township had been accustomed from time immemorial to take estovers from a certain chase for necessary fuel, to be consumed in their respective dwelling-houses within the township. But the Court, after verdict finding the custom, declared it bad, for there was not any limitation. If the right had been laid as prescriptive, and as applying to certain ancient houses, it might have been good.‡ Copyholders may of common right take estovers, to be expended upon their copyholds, where a custom to this effect exists in the manor §, but not otherwise. It the absence of a specific prescription to the contrary, the commoner ought to confine himself to the taking of underwood, shrubs, and loppings. Under an express grant of fire-bote, however, timber may be taken in default of underwood. T The estovers thus taken must be spent upon * Gateward's case, 6 Rep. 59.; Bean v. Bloom, 2 W. Bl. 926.; Grimstead v. Marlowe, 4 T. R. 717. † 2 T. R. 758. But see Arundel v. Steere, Cro. Jac. 25. and 256; and White v. Coleman, Freem. 174; whence it would appear that inhabitants way have this right. § 2 Brown, 329., 2 Saund. 320., 1 Ventr. 123. 163. Fisher v. Wren, 3 Mod. 250. T Bac. Abr. tit. Common; 3 Leon. 16. the premises which give the right to take them. In the Earl of Pembroke's case*, the commoner having house-bote cut down four trees for the purpose of repairing the posts that sustained the mud walls of his house. The wood proving unfit for this purpose, it was held that he could not exchange it for other, or enlarge the house with it, or board up the sides of the mud walls. These estovers are inseparable from the premises which give the right to them. So that if a man have a life estate in a house, and another grant to him and his heirs sufficient estovers to be burnt in that house, the right shall pass with the house to the remainderman. † Therefore, it has been laid down that common of estovers cannot exist in gross, because the reasonableness of the quantity must be limited by the necessity for fuel or repairs. It is submitted, however, that a prescription for a quantity certain of estovers would be not only good in gross §, but might be severed from the premises to which it was appurtenant. II. Common of Turbary. - A right of common of turbary, which is a right of digging turf upon another's ground, may also be either appendant, appurtenant, or in gross. The right may be appendant to any ancient tenement within the † 8 Rep. 54. The common of turbary must be appendant or appurte manor, or appurtenant to any ancient tenement in or out of the manor, or may be appurtenant to a modern tenement, if there be a specific grant. The turves, however, must be expended on the premises to which the right is appendant or appurtenant, and this even although the quantity is certain; as that the claimant should have as much turf as two men could dig in one day.* A claim in virtue of a tenement of cutting and selling turf, is bad.† An unlimited claim to cut turves and sell them, would probably be held bad even as a claim of a right in gross, for the prescription must be limited to some reasonable direption of the soil; and a custom to take turves covered with grass, to be spent upon the tenements of the commoners, for the purpose of making and repairing grass-plots in their gardens, and for improvements therein, 66 nant to a house, and not to land. Prescription," writes Lord Coke," doth not make any thing appendant or appurtenant unless the thing appendant or appurtenant agree in quality and nature to the thing whereunto it is appendant or appurtenant; as a thing corporeal cannot properly be appendant to a thing corporeal, nor a thing incorporeal to a thing incorporeal. But things incorporeal which lie in grant, as advowsons, villeins, commons, and the like, may be appendant to things corporeal, as a manor house, or lands, or things corporeal to things incorporeal, as lands to an office. By yet (as hath been said) they must agree in nature and quality, for common of turbary or of estovers cannot be appendant or appurtenant to land, but to a house, to be spent there." Co. Lit. 121 b. *Hayward v. Cunnington, 1 Lev. 231., 1 Sid. 354. † Valentine v. Penny, Noy, Rep. 145. |