was held to be unreasonable and uncertain, Lord Ellenborough C. J. saying, "A custom, however ancient, must not be indefinite and uncertain. A custom of this description ought to have some limit, but here there is no limitation." * Inhabitants cannot prescribe for a right of common of turbary †, but it has been said that a freeman may have a right to take turves for his own use; and it has been held in one case, that a mayor and burgesses may prescribe to have such a right of common for themselves and the inhabitants of their town. § In this case, Vaughan J. said, “Though inhabitants cannot prescribe for common in their own names, yet they may be capable of the benefit of such a prescription; and as this prescription is laid upon the mayor and burgesses, they may prescribe for them and for the inhabitants, and this is the direction given in 15 Ed. 4. 29., by Littleton." III. Common in the Soil. Lord Coke mentions as a recognised species of common "the digging for coals, minerals, and the like." || Thus a prescription to dig stones for the purpose of repairing the commoner's house has been * Wilson v. Willes, 7 East, 127. † 2 Atk. 189. 1 M. & S. 474. White v. Coleman, Freem. 134. recognised*, and the practice of digging sand and gravel is one of very general occurrence.† These prescriptions, however, must fall within the usual rules. The right must be claimed by persons capable of taking by grant, must be certain and reasonable in their nature, and must (except perhaps when the quantity to be taken is certain, be used by the commoner himself. IV. Common of Piscary. This, like other commons, may either be appendant, appurtenant, or in gross.‡ This right of common cannot exist in the sea, or in navigable rivers, for these are open to all the Queen's subjects.§ The right must be exercised in a reasonable manner, and according to the terms of the custom or prescription. The fish should be taken for the use of the commoner's table, and not for sale; and with lawful nets; for, although the statute for regulating the size of nets extends only to havens, harbours, or creeks, or within five miles thereof, yet fishing with unlawful nets is an offence at common law. || * Incledon v. Burges, Carth. 65. † 13 East, 155.; Duberley v. Page, 2 T. R. 391. 34 Ass. p. 11. Ward v. Cresswell, Willes, 265.; and see Co. Lit. 122 a., and Mr. Butler's note, 181. thereon, as to several fishery, common of fishery, and free fishery. The distinctions are not of sufficient importance to our present purpose to be discussed here. Matthews, 6 Mod. 73. || Warren v. 35 CHAPTER IV. OF WASTES. SECT. I. COMMON LANDS.- The Manorial Waste. Woodlands. Stinted Pastures. Forests. SECT. II. COMMONABLE LANDS.— Lammas Lands. Shack. HAVING thus laid down the rules which distinguish a right of common from an illegal user, it will be easy to apply these rules to any one of the infinite varieties of customs of pasturing in common which obtain throughout the country. It has already been remarked, that the word Waste (although the usual term employed by our law writers) is but ill calculated to convey a general description of lands upon which common rights attach. These lands are generally spoken of as either common lands or commonable lands. Common lands are uncultivated wastes, upon which no severalty rights attach: commonable lands are lands which are held in severalty during a portion of the year, but which lands, after the severalty crop has been removed, are commonable. It may not be inexpedient to consider here a few of the most prevailing species of common and commonable lands. I. Common Lands. The first and most usual species of common lands is the manorial waste, where the pasture is stinted only by levancy and couchancy, and by the rights of the lord. A second class of common lands are woodlands. These, however, do not appear to differ in any material respect from ordinary wastes, except that they peculiarly bear the burden of the common of estovers, and that there is a right, the measure of which is determined by usage, of shutting out the commoners' stock for some reasonable time after felling, in order to the preservation of the young trees. A third class of common lands are stinted pastures. It has, however, been doubted whether a stinted right of pasture is in reality a right of common. In the King v. Whixley* it was said arguendo, "These cattle-gates are not like commons. The owners of them are tenants in common; they have a joint possession and a several inheritance, and are as much demiseable as any several tenement whatsoever. There is a material difference between cattle-gates and rights of common. Lord Coke enumerates four sorts of common, but a cattle-gate does not come within the description of any of them. The owner of a cattle-gate has it not in respect of any custom, but as having a joint interest in the soil, which a person having a right of common has not." * 1 T. R. 137. Lord Mansfield C. J. seems to have adopted this definition. The court held that a cattle-gate was a tenement sufficient to create a settlement, and his Lordship said, "These cattle-gates pass by lease and release, and cannot be devised but according to the Statute of Frauds. They are therefore to be considered as a tenement within the statute." There are also lands which in ordinary parlance are called common, although the right of pasture over them is in an individual. Such are the small plots of pasture often in the middle of a waste, called sheep-heaves, the soil of which may or may not be in the lord, but the pasture is certainly a private property, and is leased and sold as such. These sheep-heaves obtain chiefly in the northern counties, and are possibly derived from that state of continual border warfare which was peculiarly favourable to the creation of rights of common in gross. In a country where a plunderer was every moment to be expected, it was absolutely necessary that there should be a perpetual staff of warders; and the most obvious and the least burdensome way of remunerating them was, to give them especial rights upon the commons which they watched. Thus, he who wound the horn, lighted the beacon, kept the red spear-house, or performed any other of the more onerous and unintermitting militia duties, held |