EIGHT OF PASTURE. 85 



within 30 years, seised in fee of the plaintiff's farm, and during the 

 same period had an estate for life in the land over which the right of 

 common was claimed, bnt never had actual possession of the dominant 

 tenement except by tenants. More than 30 years before the action he 

 joined a remainderman, in a conveyance of the servient tenement to 

 make a tenant to the proecipe for the purpose of suffering a recovery 

 in order to raise money on mortgage ; but no recovery was suffered, 

 and S. continued possessed until 28 years before the action, when the 

 property was sold, and all community of title ceased. It was held by 

 the Court of Exchequer that although there was no unity of seisin to 

 extinguish an easement or prevent its existence, the facts precluded an 

 enjoyment as of right within the meaning of the statute. 



In Mill (claimant) v. The Commissioner of the New Forest (objector), 

 an allotment was made of waste land to the claimant under an in- 

 closure act passed in 1810, in respect of which he claimed a right of 

 common of pasture in the waste lands, and a right of common of mast 

 in the time of pannage for all hogs and pigs ringed, levant and conchatif, 

 in the open woods of the New Forest, showing an enjoyment for the full 

 period of 30 years as of right, and without interruption, mentioned in 

 2 & 3 Will. IV., c. 71, s. 1 ; and it was held by the Court of Common 

 Pleas, that the claim might be defeated by showing the commencement 

 of the enjoyment, and that by reason of the statutes 9 & 10 WiU. III., 

 c. 36, s. 10. and 1 A^me, slat. 1, c 7, s. 5, the right claimed could not 

 have had any legal origin in a grant from the Crown. Jervis C.J. 

 observed, " The statute 9 & 10 Will. III. c. 36, in eff"ect, says that no 

 right of common shall be created over the New Forest. Lord Tenter den's 

 act clearly was not intended to repeal that, and to permit such a right 

 to be acquired by 30 years' enjoyment. But assuming that Lord Ten- 

 terden's act does apply, still the claim cannot be supported. It is not 

 sought to be defeated or destroyed by showing only that the right, 

 profit, or benefit was first taken or enjoyed at any time prior to the 

 period of 30 years ; but by showing that it never had any legal exist- 

 ence. I do not stop to inquire whether or not there could be a right of 

 common as appurtenant to common. If it could exist in point of law, 

 it is untrue in point of fact to say that the right existed prior to 1810, 

 because there was no allotment until after that date. We must, there- 

 fore, take it that the enjoyment of the right claimed commenced after 

 the year 1810. Here, then, we have a common inclosed, which could 

 not carry common. There could therefore be no prescription, nor could 

 there be any grant, seeing that the Crown is by the statute incapacitated 

 from making a grant. The effect of the argument on the part of the 

 claimant, is, that you are to get indirectly from the Crown, through the 



