To these four a fifth has sometimes been added, viz., a right of taking sand, gravel, stone, and even minerals from another's soil.* We shall treat of these several kinds of commons separately, according to their order. *Co. Lit. 41 b. 122 a. 9 CHAPTER II. COMMON OF PASTURE. SECT. I. Appendant. · II. Appurtenant. - III. In Gross. -IV. Pur Cause de Vicinage. COMMON of Pasture is enjoyed either as an appendancy of the ancient arable land of the manor, or as an appurtenancy annexed to certain lands by the owner of the soil of the common, or as an integral property vested in an individual by a grant from the lord. I. Common of Pasture Appendant to ancient arable land must have existed beyond the time of legal memory*, that is, before the reign of Richard the First. It is, however, unnecessary now to prove this early origin, as we shall show hereafter when we come to speak of the proof requisite to establish a right of common. The common of pasture appendant to ancient arable is confined to such cattle as serve for the maintenance of the plough, as horses and oxen, to plough the land, and sheep and kine to compester (that is, to manure) it.† *Co. Lit. 122 a. † Ibid. The number of such cattle which may be turned upon the common was originally limited to the number required in the tillage of the farm. This limitation, however, was probably found difficult to be applied, as the number necessary to till would vary in different years according to the circumstances of the tillage. The Courts therefore adopted a rule more certain in its application, namely, that a right of common of pasture appendant gives a right to turn upon the common so many commonable cattle as the land to which the right is appendant will maintain by its produce through the winter. So many as the land will maintain during the winter are said to be levant and couchant upon that land.* The cases as to cattle levant and couchant are very numerous. It is submitted, however, that none of the decisions go to abridge the original right, which was measured by the number necessary to plough and compester, although they, in many cases, undoubtedly enlarge that right by admitting to common all cattle which the land will winter, but which are not necessary to its tillage. Cattle levant and couchant, commonable in respect of right of common appendant, may therefore be defined to be such cattle as the land can * Scholes v. Hargreaves, 5 T. R. 47. maintain during the winter by its produce, or requires to plough and compester it.* The origin of this double definition of levancy and couchancy probably was, that the number requisite to plough and compester was the limit to common appendant, and the capacity of wintering was the limit to common appurtenant. As we have already said, it would appear that the Courts have adopted the latter admeasurement as the most liberal and convenient in both cases. They have never, however, denied the right of common appendant to be admeasured by its original standard. The cattle turned upon the common by virtue of the common right appendant must be the cattle which plough and compester the land to which the right is appendant.† The commoner cannot * Patricke v. Lowre, 2 Brownl. 101.; Smith v. Bonsall, Goulds. 117.; Cole v. Foxman, Noy, R. 30.; Leech v. Widsley, 1 Ventr. 54., Willes, 231.; Scholes v. Hargreaves, 5 T. R. 47.; Benson v. Chester, 8 T. R. 396.; Cheesman v. Hardman, 1 B. & A. 711; Whitelocke v. Hutchinson, 2 M. & Rob. 205. "The rule now is," said Mr. Baron Parke in the case last cited, "that such cattle only are to be holden levant and couchant upon the enclosed lands as that land will keep during the winter. It has been argued that the rule includes such as the land will keep during the whole or any part of the year, but that is not so. The real question is, has this defendant turned on more cattle on the common than the winter entage of his ancient tenement, together with the hay and produce obtained from it during the summer, is capable of producing." In this case, however, the right was claimed as appurtenant. † 45 E. 3. 35. agist the cattle of a stranger for hire*; that is to say, he cannot rent his right. But if the commoner has no beasts of his own, but borrows those of a stranger, for the purpose of ploughing or compestering his old enclosure, he then has a special property in such cattle sufficient to entitle him to turn them on the common.† In Rumsey v. Rawson, the plaintiff in replevin prescribed for common as belonging to the glebe, and stated that the beasts in question were levant and couchant upon the glebe, and that he put them upon the glebe by the licence of the parson. After a verdict for the plaintiff, it was moved in arrest of judgment that licence cannot be given by a commoner to put the cattle of a stranger upon his common; and the Court held, that had this objection been taken at the proper time, that is, on demurrer, it would have been fatal. After verdict, however, they would assume that the cattle were procured by the parson to compester his land.‡ Common appendant is limited to such cattle as are useful in agriculture. Hogs, goats, geese, or such like, are not commonable by virtue of a right of common appendant.§ * 22 Ass. pl. 84., and 11 H. 6. c. 22. † Ubi sup., and Manneton v. Trevillian, 2 Show. 328.; Skin. 137. F. N. B. 180. B. ‡ 1 Ventr. 18. 25., 2 Keb. 410. 493. S. C. Tho. Raym. 171. § 25 Ass. pl. 8., Finch, L. 56.; Standred v. Shoreditch, Cro. Jac. 580. |