Bracton: Thorne Edition: English. Volume 3, Page 186

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Volume 3, Page 186

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[001] he appears by the little cape,¹ and thus it may easily be lost.> <The procedure is as
[002] above if there has been no earlier assise of novel disseisin; if there has recently been
[003] one, it may then be seen from the assise what and what kind of common of pasture is
[004] claimed.> If he appears, he may show by what right he claims common, as where they
[005] have intercommoned together, one with the other, by common consent, from ancient
[006] times. [Or] that he renders service to him, such or such. [The service may be of many
[007] kinds, in money, things that are measured, mowings, plough-services, works, customs
[008] and offerings of various kinds, provided they are certain and fixed and rendered
[009] at certain times or terms, [that is], provided it is not at the will of the recipient [and]
[010] indefinite, sometimes more, sometimes less, for if so it would be a payment for herbage
[011] rather than common.² If one having no right of pasturing grazes the herbage
[012] surreptitiously, or with a watch set, and on that account pays a sum of money or does
[013] service, this will be the amendment of a trespass rather than service in return for
[014] common.] If vicinage or service is not involved, he ought to show that there has been
[015] a gift and title, [or] that a long time and a long use, which exceeds the memory of
[016] man,³ has intervened, for such time suffices for right, not because right fails but
[017] because an action or proof fails.⁴ It is sufficient to establish a right if the defendant
[018] can show that they once intercommoned, though they now do not, as where the
[019] plaintiff has lost his common through his own negligence or that of his people, as
[020] where his neighbour has cultivated and appropriated his pasture,⁵ for which he can
[021] only blame himself and his own negligence. When the plaintiff answers the objections
[022] [and alleges] that the facts are otherwise or different, that will be decided by the
[023] country in the manner of an inquest, that is, by these words: ‘whether the plaintiff
[024] and his men of such a vill and the defendant and his men of such other vill always
[025] used to intercommon in such a place and in such,’ [or] ‘whether they performed such
[026] service and such etc.,’ [or] ‘whether from a time from which memory does not run
[027] he always peacefully had common etc.,’ [or] ‘whether, as he says, he was enfeoffed
[028] with common of pasture,’ [or] ‘whether he purchased etc.’⁶ The reasons are infinite
[029] why common etc. And depending upon what is proved by the country, the common
[030] will be lost or retained. And note that if the tenements of such persons are of the same
[031] barony and of the same fee and in one vill, one cannot deny the common, because
[032] of the vicinage, as [in the roll] of Easter term in the fifteenth year of king Henry in
[033] the county of [Sussex, concerning land in] Bedingham,⁷ unless some specialty provides
[034] [otherwise]. If he who claims the common

Notes

1. Infra iv, 165

2. Supra 163, 167, 182

3. D. 43.20.3.4: ‘Ductum aquae, cuius origo memoriam excessit, iure constituti loco habetur’

4. D. 26.2.30; supra 91

5. ‘pasturam’

6. Supra 166

7. B.N.B., no. 561; C.R.R., xiv, no. 1450