Page:The American Cyclopædia (1879) Volume V.djvu/148

 144 COMMON COMMON CARRIER nal tenure, and was a general right incident to all smaller estates parcelled out from larger ones, which did not need prescription to sus- tain; the latter was founded solely upon grant, or upon prescription which always implied a grant. Both continued to exist notwithstand- ing the alienation of the lands to which the common was appendant or appurtenant, and in case of alienation of part of such lands, the alienee acquired a commonable right in the proportion the lands conveyed bore to the entirety to which the right originally belonged. This equitable principle was adopted to prevent the overcharge of commonable lands by the multiplication of rights from the successive division of estates, so that there could be no increase of the original right ; but whatever number of tenants became entitled, they could each have only their proportionate share. Thus the claim of a tenant who by the process of subdivision had become the proprietor of one yard of land, but set up a right of com- mon appendant for the pasturage of 64 sheep (which was the whole right that belonged to the entirety of the original premises), was re- jected. (Bennett v. Reeve, Willes's Rep., 227.) This case attracted much attention on account of the great amount of learning and ability which it elicited, but the principle had been long before recognized by Coke as appli- cable both to common appendant and appur- tenant. In Wilde's case, 8 Coke's Rep., 156 (Coke being at that time chief justice of the common pleas, in which the case was argued), it was held: 1, that common appendant or appurtenant was apportionable ; 2, that the commonable land ought not to be subject to any other or greater charge than originally existed; though the court perhaps erred in assuming as matter of fact that there could be no increase if limited to cattle levant and couchant on the original premises, although the land might have been subsequently divided among several owners ; 3, that in case of pur- chase of a part of the commonable land by a tenant claiming a right of common appendant, the right is diminished in proportion to the land purchased ; but in the case of common appurtenant, it would be wholly extinguished by such purchase. And it was said in this case that if alienation was not allowed, all common appurtenant in England would be destroyed, for no land continues in so entire a manner, every acre together with another, as it had been db initio, but for preferment of younger sons, advancement of daughters, payment of debts, &c., part has been severed. In Tyr- ringham's case, 4 Coke, 36, the origin of com- mon appendant is thus stated : " When a lord enfeoffed another of arable land to hold of him in socage (per sermtium socce), as every such tenure at the beginning was, the feoffee should have common of the lord's wastes for his cattle which ploughed and manured his land; because it was tacite implied in the feoffinent, for the feoffee could not plough and manure the land without cattle, and they could not be kept without pasture. The second reason was for the maintenance and advance- ment of tillage, so that such common appen- dant is of common right, and it is not necessary to prescribe therein." In case of the purchase, by the proprietor of the commonable lands, of any part of the lands to which common is appendant or appurtenant, the right is wholly extinguished as to the purchased lands, and the same rule if the whole should be pur- chased. Unity of possession of the lands to which and the lands in which the common belongs is an extinguishment of the right. It has long been settled that the proprietor of lands in which there is a right of common may enclose and improve part, provided he leave a reasonable amount for common. Com- mon because of vicinage is when the inhabi- tants of towns contiguous to each other have intercommoned without hindrance on either side. Yet this is merely permissive so far as to excuse what in strictness is a trespass ; but no length of time, according to the opinion of Blackstone, will establish a prescription, but either town may bar out the other. Common in gross is not attached to lands at all, but merely to the person. This right is not, how- ever, multipled according to the number of a man's heirs. By the English law, if the right descend to several, as in the case of coparce- ners (i. e., where the descent is to daughters), the eldest shall take, but be liable to contribu- tion. In the United States a different rule is held, viz. : that all the heirs must jointly pos- sess or convey. The right of common has been comparatively less important in this country than in England ; but the principles of the common law have been, with few ex- ceptions, recognized here. It would probably not be admitted in any of the states, not even in those newest settled, that the grant of a piece of land parcel of a larger tract held by the grantor would carry with it common of pasturage or fuel. It can arise only by express grant or by prescription, which, as before mentioned, is always founded upon a supposed grant. The common of estovers, or the right to take wood for fuel, or for other use of the house or farm of the party entitled on the land of another, is held in New York not to be apportionable ; so that if partition is made of the premises among several, without re- serving the right of common to one, it is gone entirely. Other somewhat analogous privi- leges are sometimes spoken of as rights of common ; as where the inhabitants of a town or village are permitted to pasture their beasts upon lands owned by the municipality, or in the public highways. COMMON CARRIER, one who undertakes for compensation to carry goods from place to place for all who see fit to employ him. Of this class are proprietors of stage coaches, owners of vessels, railroad and express com- panies, and also wagoners and others, who, lev