Bracton: Thorne Edition: English. Volume 3, Page 169

Harvard Law School Library

Bracton Online -- English

Volume 3, Page 169

Next

Go to Volume: Page:

[001] a servitude of this kind to another appropriates some part of his pasture, or the whole,
[002] and the grantee is completely excluded, whether before he has put in his cattle or
[003] after.¹ If the grantee is able to resist the force of the grantor, let him, when the grass
[004] begins to come forth, put in his beasts at once and pasture them, whether he has
[005] used the common before or not, and he will thus retain the servitude by use,² even
[006] by a single beast or by two, though he does not put in as many as he could or should.³
[007] What if he has no cattle of his own? It suffices if he puts in another's, if he does so in
[008] his own name, unless the modus and the constitution of the servitude are to the contrary,
[009] that is, that he can only put in his own. What if he has no cattle, his own or
[010] another's? It then suffices, it is submitted, if he resists to the extent of his ability and
[011] gives formal notice to the cultivator,⁴ that is, that it is unlawful for him to cultivate;
[012] a dispute having thus been raised and the thing made litigious, he may put in his
[013] cattle when he wishes, though the other's crops are ripe. But if he is so negligent that
[014] he does not at once put in his cattle, or raise a dispute in some other way, he may lose
[015] his servitude and seisin by such negligence. And if, when the crops are ripe or the
[016] ears of grain emerge⁵ or the colour of the grass changes, he then first puts in his
[017] beasts or raises a dispute, he will disseise the owner of his tenement, so that he may
[018] recover his free tenement and the other, because⁶ of the usurpation, will lose his assise
[019] of common of pasture, hardly thereafter to be heard on the property, all because of
[020] his negligence or inaction, since gross negligence is taken for consent. But the contrary
[021] may be seen. ⁷Suppose that one cultivates another's tenement and the owner
[022] wittingly and deliberately dissembles until the wheat is ripe; no disseisin is done him
[023] by the cultivation until the wheat is carried off by the cultivator. But since he has
[024] dissembled, for so long a time, as was said above with respect to the common, until
[025] the wheat is ripe, why does he not lose his seisin through negligent acquiescence, as
[026] the grantee above loses his pasture? The answer is that there is negligent acquiescence
[027] and permissive deceit, nor is any disseisin done him by the cultivation since he permits
[028] it, because by it his position is always improved, until the cultivator carries off
[029] the wheat, which is not so in the case of pasture, because [there] his situation is not
[030] improved, since by acquiescing he does not make the crop his own, because in the
[031] one case the tenant's position is improved by his acquiescence, to the extent of having
[032] the wheat, in the other it is made worse, because by the cultivation his pasture is lost
[033] him. By acquiescence and sufferance one sometimes improves his position, sometimes
[034] worsens

Notes

1. Supra 165-6, infra 173; om: ‘facit disseisinam’

2. Supra 167, infra 182

3. Supra ii, 126, 136, 160

4. D. 39.1: operis novi nuntiatio or denuntiatio

5. Marc. 4:28

6. ‘et alius propter’

7. Supra ii, 156