Bracton: Thorne Edition: English. Volume 3, Page 166

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Volume 3, Page 166

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[001] so that he cannot put in his beasts [at all], or if, when he has once put them in, he
[002] cannot use the servitude conveniently or in the proper way. He¹ must then be aided
[003] by the assise, whether he has used or not, since, solely because of the constitution, he
[004] is in quasi-possession, because rights are quasi-possessed.² Possession of a servitude
[005] is thus acquired before use, [but it cannot be transferred to another without use,
[006] unless the constitution of the servitude provides that it may remain to him and his
[007] heirs or to whom he wishes to give or assign,³ or unless one says that he may transfer
[008] it [before use] with the tenement to which the servitude is appurtenant,⁴ though this,
[009] it is submitted, is not true, as may be seen in the gift of an advowson,]⁵ ⁶but it is
[010] never retained except by true use, that is, when he has put in his beasts, one or more,
[011] though he does not put in all, or all the kinds, of beasts he could put in by the constitution.⁷
[012] Similarly, seisin of a servitude may be acquired and retained without any
[013] formal constitution, by acquiescence and long use. A servitude may be constituted
[014] in many ways, as that one have the right to pasture in another's property, [or] the
[015] right to cultivate it, to go over it, to draw water from it, to fish in it, to conduct
[016] water over it, to hunt on it, and there may be⁸ an infinite number of other rights,
[017] according as [each] includes⁹ several species,¹⁰ and according as the servitudes have
[018] or do not have¹¹ several appurtenances and the appurtenances of appurtenances.¹²
[019] But since the most celebrated servitude is that by which the right of pasturing is
[020] granted to another, we must first turn to what is called common of pasture.

[Of common.]

[022] Common is a general term and bears the relation to its variant forms that a genus
[023] does to its species. For common (communa) as the word suggests, is composed of una
[024] (together) and cum (with), the word alio (another) being understood, that is, common
[025] together with another in another's property,¹³ not in one's own, for no one may have
[026] a servitude in his own property, as above.¹⁴

Of common of pasture; [how it is acquired].

[028] Common [of pasture] is acquired in many ways, for example, through the causa of
[029] gift, as where one gives land with the appurtenances, with common of pasture etc.
[030] Through the causa of purchase and sale, as where one buys common in another's land
[031] that it may be appurtenant to his tenement, though it is of another's fee and a different
[032] barony.¹⁵ Also through [that] causa, because¹⁶ of a service certain. Through the
[033] causa of vicinage, as where one [intercommons] with his neighbour and his neighbour
[034] with him. Through a constitution [made] by the lords of estates,¹⁷ [or] without a constitution,
[035] by long use, with peaceful possession, continuous and uninterrupted,
[036] [through the knowledge and acquiescence of lords¹⁸ I do not say of bailiffs,] which¹⁹
[037] is taken²⁰ for livery, provided it is not by force

Notes

1. ‘ei’

2. Supra ii, 159

3. Supra ii, 159, 161, 162, infra 173

4. Infra 173

5. Supra ii, 159, 161, 162

6. Om: ‘Sic autem . . . servitutis,’ a connective

7. Supra ii, 126, 136, 160, infra 169

8. ‘possunt,’ all MSS

9. ‘habet’

10. Infra 167

11. ‘vel non habent’

12. Infra 190

13. Supra 129

14. D. 7.6.5.pr.; supra 163

15. Infra 186

16. ‘propter’

17. ‘ex constitutione dominorum fundorum,’ from lines 32-33

18. Supra ii, 157, 158, iii, 163, infra 185, 190

19. ‘quae’

20. ‘accipitur’