beaſts originally into the other's common; but if they eſcape, and ſtray thither of themſelves, the law winks at the treſpaſs[1]. Common in groſs, or at large, is ſuch as is neither appendant nor appurtenant to land, but is annexed to a man's perſon; being granted to him and his heirs by deed: or it may be claimed by preſcriptive right, as by parſon of a church, or the like corporation ſole. This is a ſeparate inheritance, entirely diſtinct from any landed property, and may be veſted in one who has not a foot of ground in the manor.
All theſe ſpecies, of paſturable common, may be and uſually are limited as to number and time; but there are alſo commons without ſtint, and which laſt all the year. By the ſtatute of Merton however, and other ſubſequent ſtatutes[2], the lord of a manor may encloſe ſo much of the waſte as he pleaſes, for tillage or woodground, provided he leaves common ſufficient for ſuch as are entitled thereto. This encloſure, when juſtifiable, is called in law "approving;" an antient expreſſion ſignifying the ſame as "improving[3]." The lord hath the ſole intereſt in the ſoil; but the intereſt of the lord and commoner, in the common, are looked upon in law as mutual. They may both bring adlions for damage done, either againſt ſtrangers, or each other; the lord for the public injury, and each commoner for his private damage[4].
2, 3. Common of piſcary is a liberty of fiſhing in another man's waters; as common of turbary is a liberty of digging turf upon another's ground[5]. There is alſo a common of digging for coals, minerals, ſtones, and the like. All theſe bear a reſemblance to common of paſture in many reſpects; though in one point they go much farther: common of paſture being only a right of feeding on the herbage and veſture of the ſoil, which renews annually; but common of turbary, and the reſt, are a right of carrying away the very ſoil itſelf.
