By the Court,
Savage, Ch. J.
Common or a right of common, is a right or privilege which several persons have to the produce of the lands or waters of another. Thus, common of pasture is a right of feeding the beasts of one person on the lands of another ; common of estovers is the right a tenant has of taking necessary wood and timber from the woods of the lord for fuel, fencing, &c.; common of turbary and piscary are in like manner rights which tenants have to cut turf or [648] take fish in the grounds or waters of the lord. All these rights of common were originally intended for the benefit of agriculture, and for the support of the families and cattle of the cultivators of the soil. They are in general either appendant or appurtenant to houses and lands. There is much learning in the books relative to the creation, apportionment, suspension and extinguishment of these rights, which fortunately in this country we have but little occasion to explain; but few manors exist among us as remnants of aristocracy not yet entirely eradicated. These common rights which were ai one time thought to be essential to the prosperity of agriculture, subsequent experience, even in England, has shown to be prejudicial. In this country such rights are uncongenial with the genius of our government, and with the spirit of independence which animates our cultivators of the soil. In our state, however, we have the manors of Livingston and of Rensselaerwyck, in which these rights have existed, and to some extent do still exist, and we are obliged therefore to look into the doctrine of commons to ascertain the rights of parties and do justice between them.
Common of pasture is the principal of these rights, and therefore most of the cases found in the books relate to that species of common. This was appendant, appurtenant, in gross, or because of vicinage; of the last I shall take no notice, because it is not applicable to estovers. Common appendant is a right annexed to the possession of arable land, by which the owner is entitled to feed his beasts on the lands of another, usually of the owner of the manor of which the lands entitled to common are a part. This kind of common must have existed from time immemorial, and can be claimed by prescription only, and is confined to such and so many cattle as are necessary to plough and manure the land which is entitled to common, and which are levant and couchant, that is, so many as the land will sustain during the winter. Common appurtenant does not necessarily arise from any connection of tenure, but must be claimed by grant or prescription. It may be created by grant and may be annexed to any kind of land, .whether arable yr not Gwmm fa? g"^' hss @.o eeMo» to the t&m* [649] of land, but is annexed by deed or prescription to a man’s person.
Common of estovers must, I apprehend, be either appendant or appurtenant; they are necessarily incident either to houses or lands. This right of common may exist by prescriptioti and is then appendant, or be specially granted, and then it becomes appurtenant. 3 Cruise Dig. 83 to 90. 3 Black. Comm: 33, 34. Whether this kind of common is apportionahle is the principal question in this case. It seems to have been doubt-! ed heretofore whether common of pasture was apportionable, and we find the subject elucidated by Chief Justice Willes in Bennett v. Reave, Willes, 227, as late as the year 1740. He says common of pasture appendant may be apportioned; for as the land is entitled to common only for such cattle as arti necessary to plough or manure the land, the common cannot be surcharged by any number of divisions or subdivisions in consequence of alienation. It had been contended in that case, that the owner of every parcel, even a yard, was entitled to common for beasts of the plough as well as other cattle, on the assumed ground that the tenant was bound to plough the lord’s land, and therefore must have a. team, and of course must have them pastured ; but it was clearly shewn that the team entitled to pasture was such as was necessary for ploughing the land entitled to common, and it made no difference into how many hands it went; no more team was necessary for ploughing, and no more cattle necessary for manuring. Such common is apportionahle, and the common being incident to the land, passed with it in such proportions as the land should be divided into; the assignee of half, for instance, of the land,was entitled to half the right of common. This case was of common appendant, and of this kind of common, of pasture, it is said, it is apportionahle either when part is purchased by the lord or any other person. Common appurtenant of pasture is also apportionahle by alienation of part of the land,but not if the person entitled to it purchases part of the land out of which the common is to be had, 3 Cruise, 92, 3; Co.Litt. 122, a.; and the reason assigned is because common appurtenant is against common right, whereas common appendant is of common right. 4 Co. 36. 8 Co. 78.
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By the Court,
Savage, Ch. J.
Common or a right of common, is a right or privilege which several persons have to the produce of the lands or waters of another. Thus, common of pasture is a right of feeding the beasts of one person on the lands of another ; common of estovers is the right a tenant has of taking necessary wood and timber from the woods of the lord for fuel, fencing, &c.; common of turbary and piscary are in like manner rights which tenants have to cut turf or [648] take fish in the grounds or waters of the lord. All these rights of common were originally intended for the benefit of agriculture, and for the support of the families and cattle of the cultivators of the soil. They are in general either appendant or appurtenant to houses and lands. There is much learning in the books relative to the creation, apportionment, suspension and extinguishment of these rights, which fortunately in this country we have but little occasion to explain; but few manors exist among us as remnants of aristocracy not yet entirely eradicated. These common rights which were ai one time thought to be essential to the prosperity of agriculture, subsequent experience, even in England, has shown to be prejudicial. In this country such rights are uncongenial with the genius of our government, and with the spirit of independence which animates our cultivators of the soil. In our state, however, we have the manors of Livingston and of Rensselaerwyck, in which these rights have existed, and to some extent do still exist, and we are obliged therefore to look into the doctrine of commons to ascertain the rights of parties and do justice between them.
Common of pasture is the principal of these rights, and therefore most of the cases found in the books relate to that species of common. This was appendant, appurtenant, in gross, or because of vicinage; of the last I shall take no notice, because it is not applicable to estovers. Common appendant is a right annexed to the possession of arable land, by which the owner is entitled to feed his beasts on the lands of another, usually of the owner of the manor of which the lands entitled to common are a part. This kind of common must have existed from time immemorial, and can be claimed by prescription only, and is confined to such and so many cattle as are necessary to plough and manure the land which is entitled to common, and which are levant and couchant, that is, so many as the land will sustain during the winter. Common appurtenant does not necessarily arise from any connection of tenure, but must be claimed by grant or prescription. It may be created by grant and may be annexed to any kind of land, .whether arable yr not Gwmm fa? g"^' hss @.o eeMo» to the t&m* [649] of land, but is annexed by deed or prescription to a man’s person.
Common of estovers must, I apprehend, be either appendant or appurtenant; they are necessarily incident either to houses or lands. This right of common may exist by prescriptioti and is then appendant, or be specially granted, and then it becomes appurtenant. 3 Cruise Dig. 83 to 90. 3 Black. Comm: 33, 34. Whether this kind of common is apportionahle is the principal question in this case. It seems to have been doubt-! ed heretofore whether common of pasture was apportionable, and we find the subject elucidated by Chief Justice Willes in Bennett v. Reave, Willes, 227, as late as the year 1740. He says common of pasture appendant may be apportioned; for as the land is entitled to common only for such cattle as arti necessary to plough or manure the land, the common cannot be surcharged by any number of divisions or subdivisions in consequence of alienation. It had been contended in that case, that the owner of every parcel, even a yard, was entitled to common for beasts of the plough as well as other cattle, on the assumed ground that the tenant was bound to plough the lord’s land, and therefore must have a. team, and of course must have them pastured ; but it was clearly shewn that the team entitled to pasture was such as was necessary for ploughing the land entitled to common, and it made no difference into how many hands it went; no more team was necessary for ploughing, and no more cattle necessary for manuring. Such common is apportionahle, and the common being incident to the land, passed with it in such proportions as the land should be divided into; the assignee of half, for instance, of the land,was entitled to half the right of common. This case was of common appendant, and of this kind of common, of pasture, it is said, it is apportionahle either when part is purchased by the lord or any other person. Common appurtenant of pasture is also apportionahle by alienation of part of the land,but not if the person entitled to it purchases part of the land out of which the common is to be had, 3 Cruise, 92, 3; Co.Litt. 122, a.; and the reason assigned is because common appurtenant is against common right, whereas common appendant is of common right. 4 Co. 36. 8 Co. 78.
[650] The authorities also inform us that common of estovers cannot be apportioned. Lord Coke says, “ if a man have reason- . able estovers, as housebote, &c. appendant to his freehold, they are so entire that they shall not be divided between coparceners.” Co. Litt. 164, b. 3 Cruise, 93. Lord Mountjoy’s Case is there stated, which was that of common of turbary, and it was resolved that he could not assign his interest to one or more, for that might work a prejudice and surcharge to the tenant of the land, and therefore if such an inheritance descended to parceners, it cannot be divided. In Luttrel’s case, 4 Co. 87, Lord Coke says, “So if a man has estovers by grant or prescription to his house, although he alters the rooms and chambers of this house, as to make, a parlor where it was the hall, or the hall where the' parlor was, and the like alterations-of the qualities and not of the house itself, and without making new chimnies, by which no prejudice accrues to the owner of the wood, it is not any destruction of the prescription, for then many prescriptions will be destroyed ; and although he-builds a new chimney or makes a new addition to his old-house, by that he shall not loose his prescription, but he cannot employ or spend any of hisr estovers in the new chim-nies, or in the part newly added.” 3 Cruise, 89. Estovers appurtenant to an house cannot be separated from the house, but must be spent on the house. 3 Cruise, 89. Plowd. 382. These authorities seem to be express that common of estovers cannot be apportioned, and for the reason that thereby the land out of which the estovers are* to be taken would be surcharged. If, for instance, estovers are granted as belonging to a farm of 200 acres, so long as this is one farm, there is but one' house and probably not more than two chimnies ; but if this farm is divided into two, another house becomes necessary, and double the number of chimnies must be supplied. This' would be an injury to the lord. So also of fences and buildings ; by dividing the farm into two, more fences and buildings become necessary, and if both are to be supplied from the woods of the lord, an increased quantity would be taken, where, by the grant itself, only estovers for one farm were allowed. As these estovers cannot be apportioned, neither of the tenants among whom the farm is divided can have them. [651] and therefore they become extinguished. Common of estovers must be considered as an entire thing, not to be divided ; and in case of a common person, if an entire thing be divided or extinguished in part by the act of the party, it is an extinguishment of the whole; but otherwise where it is by the act of God or the law. 11 Vin. 467, pl. 4, tit. Extinguishment, P. 6 Co. 1, Bruerton’s case. 4 Co. 38, Tyrringham’s case. Lord Coke also says, “ If a man have reasonable estovers, as housebote, heybote, &c. appendant to his freehold, they are so entire as they shall not be divided between coparceners.” Co. Lift. 164, b. In answer to the question, what shall become of such inheritances Í he says it appears by the books that the eldest shall have them, and the others a contribution; but if bo other property descended from which contribution could be had, then the parceners should have alternate enjoyment, or, in case of piscary, one shall have the first fish and another the second; and so of a toll-dish, where the hereditament was the toll of a mill. If, however, that doctrine were applicable here, it would only relate to descents, not alienation by deed ; and even as to descents, it has been held that one of several heirs, to whom a right of estovers descended, could not . alien, his share so as to authorize the assignee to enter and cut wood. Leyman v. Abeel, 16 Johns. R. 30. This case of Leyman v. Abeel recognizes the doctrine which I have advanced, that estovers are not apportionable. There one of the proprietors of the Catskill patent devised certain lands to his two sons, and gave each an undivided moiety of his right in the undivided lands; he also devised portions of lands to each of Ms three daughters and to a grand daughter. He then gave to each of his children liberty of cutting wood and taking stone from any of his undivided lands in common forever. The land subject to common became the property of the plaintiff. One of the five children of the proprietor, Nelly Abeel, died in 1809, leaving four children, one of whom conveyed his right to cut wood and carry away stone to the defendant, who did cut and carry away five loads of w.o.od, for which the suit was brought. It was held that the right of Nelly Abeel descended to all her children, but that the right to cut wood, although descendible and alienable, could not be enlarged so as to defeat the intention of the devisor, by impart[652] ing the entire right to be enjoyed by each; that one could not aione convey any right-—of course one alone had no right to wood ; but from this case it would follow, that as the right was an entirety and had devolved by operation of law upon four, although they could not enjoy it severally, they might jointly convey it to one who might enjoy it in severalty as an entirety. It follows also from the doctrine of this case that the owner of such a right cannot divide it, i. e. by the act of the party; if he conveys part of the lands entitled to common, granting the right, it cannot be enjoyed. The common belongs to the whole farm as an entirety, not to parts of it. This would enlarge the right to the prejudice of the land out of which the common was to be taken. As no one portion of the land entitled to the common could enjoy it, it is necessarily extinguished; and being extinguished, it canhot be revived only by a new grant. It is contended by the counsel for the defendant in error, that the case of Livingston v. Ten Broeck, 16 Johns. R. 14, contains a contrary doctrine. It was conceded that the question of extinguishment did not arise in that case, but the learned judge who gave the opinion of the court does say that common appurtenant can be apportioned, and he refers to several cases as sustaining the position-all of which cases are cases of common of pasture.
It will be seen, by applying these principles to this case, that Jacob Truax was entitled to common; but when he conveyed his farm, on the 15th December, 1769, part to one son and part to another, thereby creating two farms out of the one entitled to common, such right being an entirety, not being apportionable, could not be enjoyed by either, and of course was extinguished. This is the main point in the case, and is decisive of it,
Several other questions were raised and discussed; such as whether the lord had a right to enclose any part of the common ; and if so, whether the lease in the present case was such an improvement as would exempt the locus in quo from being subject to the right of common; and whether the plaintiff had such a possession as would entitle him to maintain trespass; which questions I will notice, but not discuss at large. L The possession of the plaintiff was sufficient against [653] a stranger; he shewed title to lands which were not in the actual possession of any other; he was therefore in possession, as in such cases the possession follows the title. 2. There is no doubt that the lord has a right to improve his waste lands, provided he leaves enough for those who are entitled to common. There can be as little doubt, I think, that the improvement, to bar a common, must be an actual bona fide improvement ; not a mere possession fence, run round a piece of woods. But as I hold the right of estovers in this case was gone, the defendant and those whose estate he represents have no right to raise that question ; they are mere strangers, and as against such the plaintiff’s title and possession were sufficient.
The law is established in England and recognized in the ease of Livingston v. Ten Broeck, that if the commoner purchases part of the land subject to common, if the right of common be apportionable, it shall be apportioned, otherwise the whole is extinguished ; but that principle seems to be not applicable here. The John Truax farm was purchased by John Tayler in 1791, long before he had any interest in the Jacob Truax farm, which was entitled to common. The ground of that extinguishment is this: that the commoner has voluntarily consented to the diminution of the common out of which his pasture or estovers were to be enjoyed ; and where there can be no apportionment, there must be an ex-tinguishment.
Upon the whole case, therefore, I am of opinion, 1. That the plaintiff, as against the defendant, has shewn a sufficient possession of the locus in quo; 2. That common of estovers is not apportionable, and of course that though Jacob Truax was entitled to estovers, yet his sons, to whom his farm was conveyed in parcels, and their assigns, never had any such right; and 8. That consequently the defendant xvas a trespasser in cutting the rails in question, and the plaintiff should have recovered in the court below.
Judgment of the common pleas reversed, with single costs, and a venire de novo to issue.