Book II. DIVIDING COMMONABLE LANDS. 507 



few years preceding this accidental circumstance an undoubted right to their portion of 

 them ; a right which, a few weeks or a few days afterward, might have reverted to them, 

 without the smallest taint, by the temporary alienation. If any of the appropriated lands 

 of a township or manor have been estranged from its commons, during time immemorial ; 

 have never been occupied jointly with a commonright house, or in any way enjoyed, of 

 right, the cojiunon pasturage within memory ; they may witli some reason be said to have 

 lost their right, and be excluded from a participation. 



3258. By this ancient and in a degree essential usage, commonright houses have a clear 

 right to the lands of the commons , superior to that of the ground they stand upon ; 

 especially if they rightfully enjoy a privilege of partaking of the fuel and pannage (as 

 acorns, masts, &c. ) they afford ; for these properly belong to the houses, not to the lands ; 

 and still more especially, if they are conveniently situated for enjoying the several benefits 

 which the commons afford in their wild state. And whatever a commonright house is 

 worth, merely as such, that is to say whatever it will let or sell for, over and above a non- 

 commonright house of the same intrinsic value, it certainly ought to participate in the 

 distribution, according to such extra value. 



3259. The true proportionate shares of the fommonright lands are to be ascertained on 

 the same principle. For although the ancient regulation respecting commonrights may- 

 continue in force, while the commons remain open and unappropriated, it would be 

 found troublesome or unmanageable as a rule to their just appropriation. There are few, 

 if any, commons (of commonfield townships at least) that now afford pasturage in summer 

 for all the stock which the appropriated lands are capable of maintaining in winter ; so 

 that their several proportions only could be used ; and these proportions may be calculated 

 with much greater certainty and dispatch, on the respective rental values of the lands, 

 than on the more vague and troublesome estimation of the quantities of stock .they 

 would winter ; which, indeed, would be best calculated by the rental value of the land. 

 Consequently in adopting this, as the basis of calculation, the ancient rule is, in effect^ 

 complied with. {Blackstone, Book III. c. xvi. sect. 2.) 



3260. But although each commonright occupier has a right to stock in proportion to the 

 productiveness or rental value of his appropriated lands, every one could not do this with 

 equal profit, and of course could not receive equal benefit. Lands situated on the side 

 of a common are much more beneficial in this respect, than lands which lie a mile or two 

 from it, with bad roads between them ; and it is the real advantage which an occupier 

 can fairly receive, that is the true guide in the partition ; which consequently ought to b^ 

 conducted, not on the rental value of the land, abstractly considered, but on this and its 

 situation, with respect to the commonable lands jointly. In other words, it is the rental 

 values of the commonright lands while the commons remain open, not what they will 

 become after tlie commons are enclosed, which I conceive to be the proper groundwork 

 of appropriation. 



3261. In cases where commonable lands are wholly attached to manors, and not common 

 to the parish or township in which they are situated, as in forests and woodland districts, 

 the selfsame principle of distribution is applicable. The remainder of the commons 

 (after the owners of abstract rights have been satisfied) belong to the commonright lands 

 and houses; no matter whether such lands and houses belong to copyhold tenants ex- 

 clusively, or to copyholders and freeholders jointly, provided the immemorial custom of 

 the manor make no distinction in their respective rights ; the well established customs of 

 manors being in all cases rules of conduct, and unerring guides to commissioners. Her^ 

 may be said to end the greater difficulties as to the principles of appropriation ; the rest 

 is merely technical ; the works of admeasurement, estimate, and calculation ; operations 

 that are familiar to professional men in every district, and want nothing but applicatioij 

 and integrity to render them suflSciently complete. 



3262. The technical routi?ie of the business of conducting an enclosure is as follows : 

 The act being passed, and two or more commissioners named, these commissioners meet 

 on a certain day at a certain place within the township or parish, having previously given 

 public notice of their intention. The chief business of that day is the fixing of a land 

 surveyor and an attorney to the commission. At a second meeting the commissionersj 

 surveyor, attorney, and some of the principal proprietors or their agents, attend and make 

 a general perambulation of the township, in order to point out to the surveyor the different 

 properties with their limits, &c. The surveyor now proceeds to make a correct map of 

 tlie whole. This done, the commissioners, attended by the surveyor, proceed to value 

 each separate lot or piece, and having done this, they next advertise different meetings for 

 the purposes of hearing the rights of townsmen, &c. Next they set about dividing the 

 lands according to these rights, reserving proper roads for footpaths, quarries, gravel- 

 pits, wells, springs, &c. for public purposes. When this is done, and set out on the 

 ground, contractors are next employed to carry the whole into execution, the expense of 

 which and also of the commission is generally paid by the sale of a part of the lands. 



