Bracton: Thorne Edition: English. Volume 3, Page 182

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Volume 3, Page 182

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[001] and¹ fenced in, at a proper time but not at all times,² as where³ it may be enclosed,
[002] fenced in and cultivated [at some time] every year,⁴ unless a specialty, the modus
[003] of the constitution of the servitude, so provides, or long use, continuous and peaceful:
[004] the modus of the constitution of the servitude, as where he says, ‘I give you so
[005] much land with common of pasture for so many beasts etc. throughout all my land,
[006] everywhere, in arable land, meadows and closes and in every place,’ this must not be
[007] understood to mean at all times, only at suitable times, that is, after the crop has
[008] been brought in and the hay lifted, or when the tenement lies uncultivated and
[009] fallow, as if he had said⁵ expressly, ‘everywhere, that is, when the tenement lies
[010] uncultivated etc.’ The lord ought not to be prevented by that from cultivating his
[011] land during any year he wishes, since he imposes no servitude upon himself which
[012] precludes him. If he says, ‘with pasture throughout and in all places and in every
[013] second (or ‘third’) year in arable land when it lies fallow,’ it will still be the same,
[014] when it so lies, for it may well be that it will never lie fallow, nor is he forced to refrain
[015] from cultivating, because by these words he does not preclude himself from so
[016] doing. But if he says ‘at all times and in all places, and in the second year let the field
[017] lie fallow, or uncultivated and open, and at such time let him have common,’ it cannot
[018] be cultivated or enclosed at that time, especially where⁶ long use or a custom
[019] approved by neighbours and lords so provides, which ought to be observed as law
[020] between such persons,⁷ or where⁸ vicinage so provides, without any constitution. A
[021] servitude may be personal and real, [owed] at certain hours and at certain times. Also
[022] personal only, and thus owed to persons and not tenements, an arrangement which
[023] may properly be called herbage.⁹ It may be personal¹⁰ yet not owed to ascertained
[024] individuals, as one belonging to the burgesses and citizens of a universitas; all may
[025] sue or¹¹ some in the name of the universitas. And to conclude my exposition of this
[026] constitution, note that in the case of strangers, use is preferred to the constitution,
[027] if they use it broadly, because they ought not to be restricted in their use. In the
[028] case of one's own tenants, the constitution is preferred to the use. ¹²<It may be called
[029] admeasurement where a tenement is involved as well as where it is a matter of
[030] beasts, as where one attempts to use and graze within the reasonable fenced-in lands
[031] of the lord whose tenement it is, [He may have admeasurement] or an assise of novel
[032] disseisin of a free tenement, because in another way¹³ or in another place.>

Of the admeasurement of pasture.

[034] When one has the right of pasturing in another's land, he sometimes

Notes

1. ‘et’

2. Supra 167

3. ‘ut si’

4. Om: ‘vel alio quod possit includi’

5. ‘ac si diceret’

6. ‘ubi’

7. Supra ii, 22, 27

8. ‘ubi’

9. Supra 167, infra 186

10. ‘personalis’

11. ‘vel’

12. Supra i, 402; belongs infra 183, at n. 1

13. As writ, infra 184