Common

Common, Right of, is the right of taking a profit in the land of another in common with others. It may either be such a right as is enjoyed in common with others to the exclusion of the owner of the land, or it may not exclude the owner of the land. The commoner has no interest in the soil of the land on which he has a right of common. The profits, which may be the subjects of common right, are the natural produce of land (or water, which is included in the legal significations of land), such as grass and herbage, turf, wood, and fish. The commons relating to these subjects are accordingly called common of pasture, turbary, estovers, and piscarry. Other things which cannot be called products of land, but rather part of the land itself, as stones and minerals, may also be the subjects of common right. Rights of way and other accommodations in the land of another, though they may be enjoyed in common by several persons, do not bear that name, but are called easements. Common appendant is a right of common which a man enjoys in respect of his title to a piece of land. The right is appendant or attached to the land. Common claimed by prescription (which supposes a grant) may be as various as grants may be. A right of common thus founded may be either annexed to land (when it is said to be appurtenant), or altogether independent of any property in land (when it is said to be in gross). Common in gross must be claimed either by prescription or by deed, and is not appendant or appurtenant to any certain land. Common appurtenant may be severed from the land to which it was originally annexed, and then it becomes common in gross. The title to common by custom is peculiar to copyholders, and may also give the commoner various modifications of right. The rights of the owner of the soil over which a right of common exists are all such rights as flow from ownership, and are not inconsistent with the commoner's rights. Rights of common are conveyed like all other incorporeal hereditaments by deed of grant. When they are annexed to land they will pass with the land by any conveyance which is adapted to transfer the land. If the owner of common appurtenant purchase any part of the land over which the right extends, the right of common is altogether extinguished; it is the same if he releases his right over any part of the land. This unreasonable rule, however, does not extend to common appendant, though that will be extinguished if the commoner becomes the owner of all the land in which he has common, and partial extinguishment of the common will follow from acquisition of part of the land. The enfranchisement of a copyhold to which a right of common is annexed extinguishes the right. The Prescription Act (2 & 3 Will. 4, c. 71) applies to all varieties of rights of common, for the acquisition of which it enacts that after thirty years' enjoyment a right of common cannot be defeated by merely showing it commenced within time of memory, and, after sixty years' enjoyment, the right shall be absolute and indefeasible, unless it appear that the same was taken and enjoyed under some deed or writing. The remedies for disturbance of a right of common are the same as for the denial or obstruction of an easement.

Inclosure of Commons. The inclosure of commons is regulated by the Inclosure Acts, and these Acts contain many provisions for the protection of commoners and the formation of recreation grounds, and "field gardens;" and the "Commons Act, 1876," not only amplifies such provisions, but lays down various new regulations to prevent "inclosure in severalty" as opposed to "regulation of commons" being made, unless it be proved to the satisfaction of the Inclosure Commissioners and of Parliament that the inclosure will be of benefit to the neighbourhood as well as to private interests, and to those who are legally interested in commons.