Bracton: Thorne Edition: English. Volume 3, Page 167

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Volume 3, Page 167

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[001] stealth, or at will, as above.¹ And for those same reasons common may be appurtenant
[002] to a free tenement. As common is a general term which includes many species,² [so
[003] too does that] common which is called pasture, [common] of everything which may
[004] be eaten or grazed upon, the word being taken broadly or narrowly. Broadly, as
[005] where one has common of pasture in another's property, that is, in herbage, mast,
[006] whether acorns or nuts, and everything included in the word mast, also in leaves and
[007] foliage.³ Narrowly, if he has some of these, one or two. Common of pasture may [also]
[008] be classified according to time: exercisable at all times or only at certain times, at
[009] certain hours. Also according to place, exercisable everywhere and throughout, without
[010] any exception, [Some places are excepted tacitly,⁴ sometimes expressly, as rightful
[011] fenced-in portions [which] cannot be claimed as pasture, unless they are specially
[012] granted, except after a certain time [of year], as wheatfields [and] meadows [where
[013] there are] temporary pens, as for oxen,⁵ for cows and calves at their times, [and] for
[014] wethers and ewes and lambs at their times. Nor may pasture be claimed in anyone's
[015] curtilage, nor in his gardens, orchards, parks or the like, nor in anyone's demesnes
[016] which may be enclosed and cultivated, unless so provided by an unambiguous
[017] modus of the constitution]⁶ ⁷or in certain and fixed places, or⁸ in a certain place.⁹ Also
[018] [according to] the kinds of animals, as¹⁰ where it is for beasts of every kind, or a certain
[019] kind,¹¹ [for beasts] without number, or with a limitation and with a fixed number.
[020] Note that the interest one has in another's property ought not to be called common,
[021] whether he has it in return for money or by way of sale, when he has no tenement to
[022] which the common may be appurtenant;¹² it ought to be called herbage rather than
[023] common,¹³ since it may be a quasi-personal interest whether he pays a fixed or a
[024] variable sum for having it. To have the right of digging in another's property, gold,
[025] for example, may also be called common,¹⁴ according as it falls within the general term,
[026] as was said above, and hence the place may be called a gold mine, or silver, hence a
[027] silver mine, and so as to other metals. Also the right to dig stone, chalk, sand,¹⁵ turf
[028] and the like. One may have common [which is] not of herbage, as the right to cut
[029] turf¹⁶ or heath or the like for reasonable estovers. And so to cut in another's wood
[030] for reasonable estovers, for building, fencing and burning.¹⁷

How common of pasture is lost after it has once been acquired.

[032] Let us now see how one may lose seisin of common of pasture after it has once been
[033] acquired. It is clear that it may be lost by assent: just as it is acquired by mutual
[034] assent and agreement.

Notes

1. Supra 163, 165, infra 175

2. Om: ‘Estenim . . . pastura’

3. Infra 177, 188

4. Infra 182

5. ‘boves,’ all MSS

6. Infra 182

7. Om: ‘et certis temporibus’

8. ‘vel’

9. ‘in certo loco’

10. ‘ut’

11. ‘vel ad certum genus averiorum,’ from line 20

12. Supra 163, infra 195

13. Supra 163, infra 182, 186

14. Infra 189

15. D. 7.1.13.5: ‘lapidicinas, vel cretifodinas vel harenifodinas . . . et auri et argenti et sulpuris et aeris et ferri et certerorum fodinas’

16. ‘turbam’

17. Infra 188