Bracton: Thorne Edition: English. Volume 3, Page 188

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Volume 3, Page 188

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[001] ought to have the right of felling or cutting in another's forest or wood, or in other
[002] wastes, for his reasonable estovers,¹ that is, for building, fencing, burning and other
[003] necessary things, much or little, according to the constitution of the servitude. In
[004] which taking² due measure must be observed, that the estovers be reasonable according
[005] to the size of the wood or waste in which the servitude is constituted, according as
[006] it is large or small. The size of the tenement to which the servitude is owed [must also
[007] be considered, that the estovers] neither exceed due measure nor are reduced below
[008] it, that everything remain in proper proportion. If one of them attempts to exceed
[009] or withhold due measure, that is, he to whom the servitude belongs, by taking more
[010] than reason permits or than is permissible, and thus commits waste and destruction,
[011] let the lord whose land it is obtain admeasurement or sue for trespass or disseisin.
[012] And so if it is reduced or withheld completely by the lord, let him to whom the servitude
[013] is owed sue by writ, that he be permitted to use fully or at least to proper advantage,
[014] by this writ directed to the sheriff which is called justicies,³ which is as
[015] follows: ‘The king to the sheriff, greeting. We order you to justice such a one that
[016] rightfully etc. he permit such a one to have his rightful estovers in his wood belonging
[017] to such a vill which he ought to and is accustomed to have,⁴ as he says, as he may
[018] rightfully show that he ought to have them. Lest we hear further complaint for lack
[019] of justice. Witness, etc.’ If estovers are claimed in turbary or heath, then thus: ‘The
[020] king to the sheriff, greeting. We order you to justice such a one that rightfully etc.
[021] he permit such a one to have his rightful estovers in his turf (or ‘heath’ or other
[022] things of the kind) which he ought to and is accustomed to have in it, as he says.
[023] Lest we hear further etc.’ The assise of novel disseisin could lie, so it seems, for
[024] common of any kind appurtenant to a free tenement, the word ‘common’ being taken
[025] broadly, just as it lies in common of herbage and mast: [I see no reason why not.]⁵
[026] And so of all the other kinds of common mentioned below.⁶ [If a wood or waste is
[027] common among parceners or co-heirs and one of them exceeds due measure in the
[028] taking of estovers and commits waste or destruction, neither admeasurement nor
[029] novel disseisin will lie but trespass,⁷ that the assise be turned [into a jury to inquire]
[030] into the trespass, or that the parties be compelled to partition by a judgment de
[031] communi dividundo.] And so, as is said above,⁸ of the right of digging, mowing and
[032] cutting, and servitudes of every other kind. One may have this servitude, that is,
[033] the right of conducting water from another's land and over another's land to his own
[034] land

Notes

1. Supra 167

2. ‘captione’

3. Infra 193

4. Selden Soc. vol. 80, lxxxiv; quod permittat: infra 326

5. Ibid., lxxxiii; infra 199

6. Infra 189, 193-4

7. Supra 184

8. Supra 167, infra 189