Bracton: Thorne Edition: English. Volume 3, Page 130

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Volume 3, Page 130

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[001] and not admit of division, with or without the consent of the parties, as rights, of
[002] which we have made mention above, as a right of presentation, which is indivisible
[003] though owned in common. Consequently let all consent and present or let no one do
[004] so, for the presentation will be of no effect if one of the several opposes it, nor is full
[005] age, the decision of a majority, or seniority given preference.¹ A tenement may also
[006] be common among several who are not parceners, with respect to some use, it will not
[007] be the property of any one by himself nor common to specified persons, but the property
[008] of a universitas, whether it is within the city or outside it, as a stadium, a theatre
[009] and the like.² There is also a tenement which is, so to speak, common to a greater extent,
[010] that is, which is not the property of any individual person by himself, nor in
[011] common, nor the property of a universitas by itself, but the common property of all,
[012] as the king's highway,³ the shore of the sea,⁴ [as above more fully in the portion on the
[013] classification of things.]⁵ Those things which are among the possessions of God, of
[014] which mention was made above,⁶ belong to no man,⁷ nor may they be possessed by
[015] man, nor transferred to another so as to be made his free tenement nor can they be
[016] recovered as a free tenement.

Of fisheries.

[018] A fishery may be called a free tenement and belong to someone by himself or in common:
[019] [by himself], as a fishery in his own estate, as where he has land along the bank
[020] on both sides of a stream; he will be able to fish over the whole, as in his own tenement,
[021] without interference from anyone. If anyone impedes him he commits a disseisin. His
[022] right to fish on his own property does not rest on any servitude, since no one may have
[023] a servitude on his own land.⁸ If he possesses property along one bank only, his tenement
[024] will extend to mid-channel and the fishery and the right to fish will be his alone,
[025] unless he imposes a servitude upon his estate permitting another to fish with him,
[026] that they may fish in common, or that the other may fish by himself exclusively, [as
[027] where] he imposes a servitude on himself forbidding himself to fish.⁹ Neighbour may
[028] fish with neighbour in common by virtue of vicinage, or in return for a payment certain,
[029] or because of long use, just as in the case of pasturing in another's land. But what
[030] shall be said of a woman who has the right to fish in the name of dower? We must see
[031] whether a fishery by itself has been assigned her in the name of dower: it will be her
[032] free tenement. If she ought to fish in common with her warrantor by reason of her
[033] third part, the fishery will be her free tenement but in common with her warrantor. If
[034] she is granted the third catch as such,¹⁰ during the time she fishes it will be her free
[035] tenement, as long as she fishes, and cease to be such when she ceases to fish; thus it
[036] begins and ends. If she is granted the third fish, she will have no free tenement in the
[037] fishery, but

Notes

1. Supra ii, 223, infra 205, 225, 235

2. Supra ii, 40, iii, 40, 128, 136-7

3. Supra 61, infra 136

4. Deleted

5. Supra ii, 39-40

6. Supra 60, 128

7. Supra ii, 40, 57, 137, iii, 40, infra 136

8. D. 7.6.5.pr.; infra 163, 166

9. Infra 163

10. Supra ii, 281