Disturbance of commons. * 355 Injury. to have had, and still of right ought to have, commont of pas —, and kept and de (p) This is in general material, 1 Saund. 346. c. (g) Or if for all commonable cattle, say, "for all his commonable cattle;" but if there be any doubt as to the extent of the right, it is proper to qualify the statement of the right of common, and the plaintiff needs not shew more than makes for him, 2 Hen. Bl. 234. 2 Wils. 269. (r) This is necessary, unless the right of common be for a certain number, 1 Saund. 28. n. 4. 346. b. c. 2 Saund. 327. (s) It is not always necessary in pleading to state the common as appurtenant to land eo nomine, for if it be laid as appurtenant to a thing which in intendment of law, prima facie comprehends land, it is sufficient, 1 Saund. 346. b. c. (t) This will be taken to mean all usual times of the day, 2 Hen. Bl. 224. 234. If the right of common be only at certain times of the year, it must be so described, see the form, 2 Saund. 2, 3. (u) Supra, n. (8). Willes, 319. (r) The declaration for disturb ance generally is sufficient, as well against a commoner as a stranger, 2 Bl. Rep. 817. 3 Wils. 278. 1 Saund. 246. a. and it is not necessary in such case to shew in the declaration that the defendant has any right of common, id. ibid. but in an action against the lord, it is said to be necessary to state a particular surcharge, 2 Mod. 6. 1 Lutw. 107. 3 Wils. 290. See the form of a declaration against the lord, Herne, 125. 1 Saund. 346. a. (y) Plaintiff need not shew that he turned any cattle on the common at the time the injury was committed, 2 BI. Rep. 1233. (=) If the action be brought against the lord, it is said that the plaintiff must state a surcharge, 2 Mod. 7. 3 Wils. 278. but not against a commoner or stranger, 1 Lutw. 101, 102. 1 Saund. 346. a. Supra, (x). Damage. to.(a) Whereby the said A B *on those several days and times, Disturbance and during all the time aforesaid, was and is greatly injured and disturbed in the use and enjoyment of his said common of pasture there, and could not nor can have or enjoy the same in so large, ample and beneficial a manner(b) as he otherwise during all the time aforesaid, might and would have had and enjoyed the same, to wit, at, &c. aforesaid. [Conclude as ante, 238.1 [Same as the last precedent, to the ‡ ante, 355, and then pro- The like for building, &c. ceed as follows:-caused to be erected and built divers, to wit, uponthe comother buildings, in and upon the said mon. waste or common, and then and there wrongfully and unjustly brought, laid and placed divers, to wit, cottages, and pieces of timber, feet in into and upon other parts of the said waste or common, and * 357 [Same as the precedent, ante, 354. to the ante, 355. and then The like for proceed as follows:]-erected and made, and caused and pro- of the cont enclosing part cured to be erected and made, a certain fence, in and upon the mon. said waste or common, and thereby and therewith *then and there enclosed a great part, to wit, acres of the said waste or common, and separated and divided the same from the residue of the said waste or common, and wrongfully and (a) If cattle are permitted to depasture the common, whether they belong to a stranger, or are the supernumerary cattle of a commoner, or whether they are driven or escape there, a commoner may have an action on the case, in which it is not necessary to prove that he has sustained any specific damage, the in fraction of the right being a suffi- 154. (b) This allegation is necessary, 1 Saund. 346. a. 9 Co. 115. a. 2 BI. Rep. 1235. but no evidence of any specific damage needs be adduced, id. ibid. 2 East, 154. Ante, 355. n. (a). 357 Disturbance of commons. The like for digging turves. For disturb ance of com mon of turba wy.(c) * 358 unjustly kept and continued the said fence so erected and made as aforesaid, and the said part of the said waste or common, so separated and divided as aforesaid, for a long space of time, to wit, from thence hitherto. Whereby, &c. [Damage as anté, 355.] Same as the precedent, ante, 354. to the ‡ 355. and then proceed as follows:]-with spades and other instruments, cut and dug a great part, to wit, 100 square yards, of the turf of the cart loads said waste or common, and the turves, to wit, of turves there then cut and dug, took and carried away. Whereby, &c. [Damage as ante, 355. See 7 East, 121.] [Same as the precedent, ante, 354. to the obelisk, omitting the statement of possession of land,(d) and then proceed as follows :] -of turbary, in a certain waste or common, called, &c. situate at, &c. to cut, dig, and take turf and peat in and upon the said waste or common, and to carry away the same for necessary fuel, to be spent, burnt and consumed in and upon his said messuage, with the appurtenances,(e) every year, and at all times of the year, as occasion hath required, as to his said messuage, with the appurtenances, belonging and appertaining. Yet the said CD well knowing the premises, but contriving, and wrong. fully and unjustly intending to injure the said A B, in this behalf, whilst he was so possessed of his said messuage, with the appurtenances, and entitled to such common of turbary as aforesaid, to wit, on, &c. and on divers other days and times between *that day and the day of exhibiting this bill, at, &c. aforesaid, wrong. fully and unjustly cut, dug, took and carried away, and caused to be cut, dug and carried away, divers large quantities, to wit, fifty cart-loads of the turf then growing and being on and upon the said common or waste. said AB on those several days and times, and during all the time aforesaid, was and is greatly injured and disturbed in the use and enjoyment of his said common of turbary there, and could not, nor can have, and enjoy the same in so large, (c) See the precedents, 8 Wentw. 597. 513. and id. Index, 50, 51. (d) Common of turbary is incidental to a messuage, and not to land, 4 Co. 37. a. 7 East, 121. Whereby the (e) It is necessary in general to state in the declaration that the turves were to be used in the house, 1 Lev. 231. Sid. 354. 7 East, 121. ample and beneficial a manner as he otherwise during all Disturbance the time aforesaid, might and would have had and enjoyed the of commons. same, to wit, at, &c. aforesaid. [Conclude as ante, 238.] ance of com mon of esto [Same as the precedent, ante, 354. to the ↑ omitting the word For disturb. common," and the statement of the possession of land,(g) and then proceed as follows:]—and take reasonable estovers of the vers.(ƒ) bushes and underwood, standing and growing in and upon a certain place, waste or common, called the, and situate at, &c. and to carry the same from thence to the said messuage, with the appurtenances, to be burnt, spent and consumed for necessary fuel therein, every year, at all seasonable times of the year, at his and their free will and pleasure, as belonging and appertaining to the said messuage, with the appurtenances. Yet, &c. [Same as the last precedent, only instead of “turf,” say "bushes and underwood,” and instead of ❝ common of tur bary," say, common of estovers."] * 359 private right. For that whereas the said A B before, and at the time For obstructof the committing of the grievance by the said CD as ing plaintiff's *hereinafter next mentioned, was and from thence hitherto hath been, and still is, lawfully possessed(i) of a certain messuage and garden thereto belonging, with the appurtenances, situate, lying and being, at, &c. And by reason thereof,(k) he the said A B, during all the time aforesaid, ought to have had, (h) (f) See the precedents, 8 Wentw. statement of the right, Index, 50, 51. Thomp. Ent. 377. 3 Wils. 456. Morg. Prec. 456. and the notes to the last precedent, which are applicable. 1 Ventr. 274. 2 Lev. 148. 3 Keb. 528, 3 Lev. 266. 1 Lutw. 120. 2 Ld. Raym. 751. 1090. (g) Ante, 357. n. (d). (h) As to the private ways in general whether by grant, prescription, or of necessity, see 1 Saund. 323. n. 6. Com. Dig. tit. Chimin, D. See the precedents, 8 Wentw. Index, 550 57. 1 Lutw. 19. 4 T. R. 794. 3 T. R. 766. 3 Ld. Raym. 85. for not repairing a private way, and 3 T. K. 766. Saund. 113. n. 1. 172. a. n. 1. Ld. Raym. 1096. Ante, 354. n. (0). As to the 2 (i) This allegation is sufficient, without stating any prescriptive right, 2 Saund. 113. a. Lutw. 119. See also ante, 354. n. (0). (k) This is in general a sufficient description of the right, id. ibid. 2 Saund. 114. a. 1 Saund 346, n. 2. Ante, 356. n. (o). But if the right of way be not by reason of possession but by special agreement, &c. it would be improper, 4 East, 107. 6 East, 438. Disturbance of ways. * 360 Injury. and still of right ought to have a certain way(?) from and out of the said garden, unto, into, through and over a certain close, in the parish aforesaid,(m) and from and out of the same, unto and into a certain wharf or quay, of the said AB, in the parish aforesaid,(n) and so back again from the said wharf or quay, unto and into, through, over and along the said close, and from and out of the same unto and into the said garden of the said A B for himself and his *servants, on foot,() to go, return, pass and repass, every year, and at all times of the year, at his and their free will and pleasure, as to the said messuage and garden, with the appurtenances of the said A B belonging and appertaining.(1) Yet the said CD well knowing the premises, but wrongfully and unjustly contriving, and intending to injure the said A B, in that behalf, and to deprive him of the use and benefit of his said way, whilst he the said A B was so possessed of his said messuage and garden, with the appurtenances as aforesaid, to wit, on, &c.(g) and on divers other days and (2) The term "passage," it is said, is too general, Yelv. 163, 164. 1 Brownl. 216. (m) Where the right of way is stated to be over a private close, &c. the local situation thereof should be stated, Noy, 9. (2) In Rouse v. Bardin, 1 Hen. Bl. 353. Mr. J. Wilson observed, "that in pleading a public highway, it is not necessary to state either the terminus a quo, or the terminus ad quem; but where it is a private way, it is necessary to state them, because private ways are given for particular purposes, and the justification must shew that they were used for those purposes." It is therefore necessary, in a declaration of this nature, either to shew that the way leads to a common highway, 8 East, 4. 2 Leon. 19. 2 Saund. 158. d. Com. Dig. Action, Case, Disturbance, B. 1. or if it lead to a private close, to state some interest of the plaintiff therein, Noy, 86. Latch. 160. Com. Dig. Action, Case, Disturbance, B. 1. Vin. Abr. tit. Chimin, H. pl. 14. Com. Dig. tit. Chimin, D. 2. When it is doubtful whether the way may not have been extinguished by unity of pos session, it may be advisable to state the right of way to be "towards,” &c. 1 East, 377. 381. 1 B. & P. 371. (0) It should be shewn whether. the way be a cart-way, horse-way, or foot-way, Yelv. 164. Com. Dig. Action, Case, Disturbance, B. 1. Though in the case of a public way, the term "common highway" signifies a way for all manner of things, 2 Saund. 158. d. 8 East, 4. 1 Hen. Bl. 355. (p) See the precedent in 1 Lutw. 119. It is said that these words are improper, on the ground that a way is an easement and not an appurtenant, Yelv. 159. 1 Butst. 47. Com. Dig. tit. Chimin, D. and in a declaration it appears not necessary to insert this allegation, and in some cases, it would be improper, 4 East, 107 6 East, 438. (q) The day is not material. |