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appertains at certain periods. It was, no doubt, so intended by the author. For, of course, a right on the lord's waste for so many beasts is as much a right of common as an appendant or appurtenant common.
In another page* the learned writer speaks of "the old lot meadow, in which the owners draw lots for the choice. They all, however, agree in that as soon as the crops are removed, they become commonable." We have known a lot mead always pasture, and where the lord's waste nearly adjoins. This was probably severed from the waste by encroachment, but we merely quote it to show that the lot meadow might have been originally pasture as well as arable, there not being any contiguous commonable arable lands to identify it with severalties.
The account of these different rights is wound up with the shack common. "After the crop has been removed, these lands become commonable to all the parties having a severalty right, but to no others."t "The severalty holders upon shack lands are usually the holders of the fee of their several portions."+
Lammas lands are open after a particular day when the crop is in general removed, and commonable lands, for the most part, obey the same rule, which distinguishes them from shack. Lammas lands likewise are open to others than owners in severalty. Shack lands are confined to such owners.§
There are other incidents belonging to commons; alienation; extinguishments; the respective rights of lords and commoners; all these have been dealt with in the book under our view. There is, however, one subject which has a claim upon our attention. To use the words of our text, "This (non-user) is, perhaps the most difficult of all the ordinary
† P. 50.
*P. 48. † P. 51. § "These commonable lands," says Mr. Cooke, "have hitherto been unnoticed by our law writers," p. 51 n. We think this too broad an asser
points that come before the valuer and assistant commissioners." The question is whether a commonable right can be lost by non-user. Mr. Cooke's illustration is this: "It must frequently happen that although two estates may be equally entitled to turn out on a waste, the tenant of one will exercise the right, and the tenant of the other will abstain from so doing. The better farmer will keep a herd of sheep that will not live upon the waste, or the more distant farmer may not find it profitable to drive his beasts there. Yet it would be manifestly unjust if upon an inclosure the waste were so divided as to be a valuable premium for bad husbandry; the chief reason for inclosing waste lands being that land in an uninclosed state is useless to the skilled farmer."*
It is not easy to say how a common can be lost by an acquiescence in abstinence. Light; way; water-course; these may be lost by certain acts which establish a positive abandonment. You may abolish the spring from whence the ancient light, the right of passage, and the stream flow, but you cannot extinguish the waste so as to raise the question of non-user. Unity of possession is quite beside the question.
We conceive, therefore, that common can scarcely be destroyed by merely forbearing from taking the profit à prendre. There was a case of Manifold v. Pennington, in Barnewall and Alderson. The result of that decision seems to have been, that if a man did not keep, and was never known to have kept, a particular species of cattle, he could not be said to have surrendered his right, nor to have lost any right of action, nor was he liable to be proceeded against, for he had not exercised the privilege to which he was entitled. Had he kept the stock, as sheep, for example, it might have been left to the jury to say whether there had been an abandonment. We do not, however, place too much reliance on that case as authority. It often happens that landowners having an undoubted right to the waste, keep commonable cattle, but,
* P. 59.
for various reasons, it is inconvenient for them to send their stock to the pasture. Can anything be more unreasonable than to compel the owner to use the common by way of asserting a claim which belongs to his estate, or which is his by grant? It might be a wise policy to make an occasional visit to the common-field or waste, taking care to have evidence of the user, however rare. But we recognise a plain difference between this profit and easements, the former being of a substantial character, the latter, comparatively speaking, of a fugitive or evanescent nature.
When the valuer and assistant commissioner are called upon to decide upon claims under the Inclosure Act, it seems to us that they should, as far as possible, relieve themselves from the embarrassing principle of legal non-user, and rather look with jealousy at the fact of long neglect or absence of user, not in the light of extinguishment, but of evidence that there has never been any user. So many fictitious claims are put forward at the approach of a division of the waste, that the officers whose duty it is to settle these pretensions, may justly require proof, not so much limited to a prior user, as of the existence of the very right itself.
We take our leave at this point of the first portion of Mr. Cooke's useful work. It is a valuable and compendious narrative of a subject of some complication, and the professional inquirer will find in the terse yet luminous pages of this treatise a clue to further information, if he be not already satisfied with the materials before him.
The plan adopted by many law writers of supplying or inserting all the statutes concerning the subject of which they treat is judicious, and consequently, useful. The second part of this work consists of the Law of Inclosures. The author has not only placed together all the Acts: he has also added those which have any relation to the subject.*
Mr. Woolrych, the Police Magistrate, has upon the same principle, collected the Local Government Acts with success.
There is a useful chapter "of the evidence in claims before the valuer or assistant commissioner," and the question of encroachments has received attention. A curious point has been offered in the chapter of evidence. The extent of the right being measured by the ancient inclosures, i.e., the wintering of commonable beasts: does the 5th section of the Act 8 & 9 Vict., c. 118, enable the valuer to reject a sixty years' claim which is founded upon a surcharge? In other words, admitting the right to a certain extent, will a constant trespass work itself into an indefeasible privilege after the lapse of that period? "No case has yet been decided by the courts upon the construction of this section of the Act; but the assistant commissioners have held that a right claimed under it must be a legal and a limited right."*
The gist of the matter is in the word "right." The words of the 2 & 3 Will. IV., c. 71, are, "where such right, profit, or benefit shall have been actually taken and enjoyed by any person claiming right thereto." There must be an enjoyment as of right, and although there may not have been an absolute determination upon the point, the authorities are strong in favour of the views assumed by the assistant commissioners. If a commoner should be found to have usurped a right in respect of a messuage and land, which element will confer the legal privilege, he cannot be molested after thirty years user; but if he should have intruded on the waste, and upon investigation his claim should be for common appendant or appurtenance, without the messuage, &c., any user he may have enjoyed ought not to weigh against the words of the statute, "nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated." To maintain a legal right by usurpation by virtue of an act of the Legislåture, is very different from assuming a right which has no foundation at all, and which, therefore, cannot come within the scope of the remedy. A surcharge does not negative the limited profit, but if such an excess were to be sanctioned
*P. 105, n.
after sixty years, a principle would be sustained which neither the common law, nor the prescriptive Act, nor the Inclosure Acts, could warrant.
The jurisdiction of the Inclosure Commissioners with reference to commons has not been forgotten. For instance, as to exchanges, partitions, intermixed land, drainage, rent-charge. The author rightly observes, that the drainage jurisdiction is foreign to the original purpose of the commission, and to the scope of his work. Yet having introduced the Acts 9 & 10 Vict., c. 101., 12 & 13 Vict., c. 100, and 13 & 14 Vict., c. 31., he might, perhaps, have adverted, however slightly, to the statute, 24 & 25 Vict., c. 133, an important code as to recent agricultural drainage and commissions of sewers, and the more so as the Inclosure Commissioners have, by it, another trust confided to them; the issuing with their sanction new commissions of sewers. It is true that the Act has but little connection with commons, but as we find in the title page "The jurisdiction of the Inclosure Commissioners (amongst other things) under the Public and Private Money's Drainage Acts and under the Companies' Acts relating thereto," we may be pardoned if we just allude to this Drainage Act of 1861. The Inclosure Commissioners are important officers under the Act, for, upon their recommendation, commissions of sewers may be granted for new areas, regard being had to the levels and other facilities of drainage, or for an area wholly or partially within the limits of an existing commission. The powers of present commissioners are saved, and the Queen's power to issue commissions is expressly saved. Nevertheless, the change is of a very striking character, and it will probably lead to consequences requiring fresh labours from Commissioners of Inclosure. For they are already provided by this Act with considerable powers in forming the The subsequent division of the Act provides
That is the Inclosure Commission.
† P. 148.
See the early clauses of 24 & 25 Vict., c. 133.