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[001] either the husband be compelled by ecclesiastical censure to support his wife or the
[002] wife to return to and follow her husband.1 And if necessary let the lord king, at the
[003] petition of the ordinary, provide what is within his province, a sharing of the tenement.]
[004] A tenement may also be common between two or several, as [among neigh-bours,
[005] as] bounds and metes and rightful balks placed in the borders and at the limits
[006] of lands to distinguish the estates and demesnes of adjoining landholders,2 each of
[007] whom is an owner and non-owner, a non-owner of the undivided whole but an owner
[008] in common.3 The plaint and remedy by assise lies for all such persons, according as
[009] each of them has been disseised, that is, all, or some, whether by strangers or by themselves
[010] and among themselves. Thus if one plows the balks [or] removes and carries
[011] away a boundary stone or tree,4 he commits a disseisin, as [in the roll] of the eyre of
[012] Martin of Pateshull for the taking of assises of novel disseisin and gaol deliveries in the
[013] county of Southampton, an assise of novel disseisin [beginning] ‘If Ralph de la
[014] Haye,’5 for there it is said that if one who plows my land commits a disseisin, a fortiori
[015] he who plows the balks between himself and me commits a disseisin, because there a
[016] greater wrong is done than if he had plowed other land, for then the crops could be
[017] kept [by the owner of the soil], which is not true with respect to balks, because such
[018] metes and bounds belong to both the neigh bours in common, to the extent that neither
[019] may appropriate anything for himself without committing a disseisin, since they hold
[020] in common. But it seems to be a trespass rather than a disseisin, because in making
[021] the view to the jurors the plaintiff cannot indicate any particular part, nor say ‘This
[022] part is mine,’ because balks are not divided into parts but lie in common, because no
[023] one knows or can know his part. If one says that the half which lies next to the land of
[024] one is his land, that would not be acceptable, because if each plowed or threw down
[025] the half nearest his land the balks would thus be destroyed and obliterated. But in
[026] truth, whatever others may say, it is submitted that it is a disseisin of a tenement held
[027] in common,6 and thus let the view be made of the whole to be held7 in common.
[028] And so of a boundary stone and tree, that it is a free tenement, since a stone fixed to
[029] the land, like a building, cedes to the soil, and similarly a tree, when it has struck
[030] roots.8 There are some who say that the removal of the stone or tree is a trespass rather
[031] than a disseisin, but that is not true, though disseisin includes trespass, though
[032] not conversely.9 A thing may be common among several, as among co-heirs and
[033] parceners, in common tenements before partition of the inheritance. Also among
[034] neighbours in a tenement which once was disputed and relinquished by common
[035] assent to some [common] use.10



Notes

1. Infra 115

2. Infra 60

3. Infra 61, 127

4. Inst. 4.17.6: ‘lapides finales,’ ‘arbores finales,’; D. 47.21

5. Not in B.N.B.; C.R.R., xii, p. xiii; infra 40, 128

6. Cf. infra 127--8

7. ‘tenendum’

8. Supra ii, 40, 44--6; C.R.R., xv, no. 1908 (1236)

9. Infra 127, 153

10. Fleta, iv, ca. 2: ‘ad aliquam usum communem’


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