In pleading a right of common by prescription, the defendant must show a seisin in fee of the land in respect of which he claims, and prescribe in the que estate for the right. Where a defendant justified under a right of common of pasture, by showing a demise from a freeholder for life of the land in respect of which he claimed, and averred that he, the defendant, and all those whose estate he then had, and his landlord from time and so on, had common pasture in respect of the demised premises.
Held: upon demurrer that the plea was bad. The statute for the better cultivation of navy timber in the forest of Woolmer in the county of Southampton which enacts ‘for the regulating and securing to the several persons now having right of common of pasture in and over the said forest, the power of cutting peat and turves within such parts of the said forest as shall not be inclosed by virtue of this act, that, after the inclosure shall be made and completed, it shall be lawful for all persons having right of common in the said forest, to cut and take peat and turves, in any part of the said forest not inclosed under this act, without payment of any fee or sum of money to any keeper or other person having the care or superintendence of the said Forest for taking the same,’ merely regulates the previous existing rights, but confers no new right, and authorises those only who before had the right of estevers and common of pasture to cut without payment of fees for the necessity of the dwellinghouse, in respect of which the original right existed.
[1829] EngR 205, (1829) 3 Y and J 93, (1829) 148 ER 1107
Commonlii
England and Wales
Updated: 27 October 2021; Ref: scu.322073