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the Court below in their judgment. The right is for common appendant, not appurtenant, and common appendant can only be claimed in respect of arable land: Tyrringham's Case (a), Com. Dig. tit. “ Common" (B.). Therefore the term “levant and couchant” means such a number of cattle as actually till and manure the land: Whitelock v. Hutchinson (6), Bennett v. Reeve (c). The plea would be bad unless it averred that the cattle were actually levant and couchant upon the toftstcad: 3 Chit. Plead., p. 275, 7th ed. The reason why such an averment is necessary is that levancy and couchancy is the measure of the number which the land supports: 1 Wms. Saund., p. 346 c, note (2); and as that is uncertain it is called common without number: 1 Wms. Saund., p. 28 d, note (4).
In Patrick v. Lowre (d) the defendant prescribed for common of pasture for all beasts levant and couchant upon a certain house ; but after verdict the Court would intend that there was a curtilage annexed to the house. Scholes v. Hargreaves (e) only shews that there must be some land on which the cattle may be fed ; if it is built upon or converted into a reservoir the right would be gone. Rumsey v. Rawson (f) is an authority that at least some part of the land in respect of which the right is claimed must be applied to the sustenance of the cattle.
Field (T. P. Thompson with him), for the defendants.The term “levant and couchant” is the measure of the number of cattle which the land is capable of supporting if used for that purpose. If at any time there was land which afforded sustenance for cattle, the right of common would not be lost or suspended by cattle not being fed upon it.
(a) 4 Rep. 37 b.
(d) Brownl. part 2, 101.
Tyrringham's Case (a) is an authority in favour of the defendants. There common appendant was claimed in respect of arable land, part of which had been converted into pasture, and it was held that the common remained appendant; and as in common appurtenant it was necessary that there should be a measure of the number of cattle, that measure was the levancy and couchancy, viz., so many cattle as the land might maintain. That is the definition of " levant and couchant” in Cole v. Forman (1). “Levant and couchant” has a different meaning where a right of common of pasture is claimed and where there is a distress for surcharging a common. In the latter case it must be proved that the cattle have been actually fed upon the common; in the former it is only necessary to shew that the land might maintain them : Cheesman v. Hardham (c), Fulcher v. Scales (d), Rogers v. Benstead (e). The dictum of Parke, B., in Whitelock v. Hutchinson (F) has reference to common appendant; here the right claimed is for common appurtenant. Suppose, instead of feeding the cattle on the produce of the land, they were fed on oil cake, and the hay or root crops sold, would the right of common be extinguished ? Or, suppose a house or stable was built upon a part of the land, must there be an inquiry how many cattle its diininished pasture will sustain ? (Blackburn, J.-Would an improvement of the dominant tenement give a right to the owner to put more cattle on the common ? Willes, J.-It is well known that at the present time a greater number of cattle may be supported upon a given quantity of land than in the time of Richard the First. Suppose that, by improved cultivation, the land was rendered capable of sustaining double the number of cattle,
(a) 4 Rep. 37 b.
(d) i Sel. N. P. 484, 12th ed.
but in a few years it became exhausted.] Those considerations shew that the true meaning of " levant and couchant" is the number of cattle which the land is capable of supporting, and not the number which have actually been fed upon it.
Hayes, Serjt., replied.
Cur. adv. vult.
WILLES, J., now said.—We are all of opinion that the judgment of the Court of Exchequer ought to be affirmed. The main argument on the part of the plaintiff was, that the character of the dominant tenement had been so altered from its condition of pasture land by having had buildings placed upon a part of it, and by the rest being converted into orchard and garden ground, that the user for thirty years of the common by cattle housed upon the dominant tenement, but not deriving their support from it, was no evidence of a right which could in point of law exist. That argument would have had considerable force if upon the facts it could have been established that the character of the dominant tenement was so altered that it was incapable of producing fruits to support catile ; for instance, if it could have been shewn that a town was built upon it, or, as suggested in the course of the argument, if it had been converted into a reservoir, the question might have arisen whether the right of common was not extinguished or at least suspended. It is unnecessary for the decision of the present case to express any opinion upon that point, because it appears that the toftstead consisted of a cottage and stable with a garden and orchard of about two acres. There was therefore land which might have been laid down as meadow, or cultivated so as to produce artificial roots for feeding cattle. Consequently, this is not the case of a dominant tenement so changed in its character that cattle
could not be fed off its produce. Then, even if my brother Hayes had succeeded in satisfying the Court that the expression “levant and couchant” was not a mere measure of the capacity of the land to keep a given number of cattle out of its products, whether natural or artificial, but that it had reference to the capacity of the land in its actual state to produce food for cattle, he has not succeeded in shewing that the facts negative the capacity of the land for that purpose. The evidence is consistent with this state of things—land in a state of cultivation so as to be capable of sustaining cattle, afterwards partly built upon, and the rest turned into a garden and orchard, not, it is true, with a view to sustain cattle, but in such a state that it might at any time be made to produce fruits for that purpose.
There is no authority either in the class of cases relating to the abandonment or the loss or the suspension of such rights, by the destruction, absolute or temporary, of the liecessary measure of enjoyment, which would justify us in holding that, under these circumstances, the right of common once created and existing was destroyed by the subsequent acts of the owner of the toftstead. User and long enjoyment ought to be referred to a legal origin, if the facts are consistent with it, rather than be treated as a series of trespasses, and we ought to assume a legal origin, unless the facts shew that it could not be attributed to the enjoyment, or the right has been extinguished or suspended.
For these reasons we think that the enjoyment is referrable to a legal origin, and there is nothing to shew that the right so created was extinguished or suspended. That was the ground on which the judgment of the Court below proceeded, and I think it must be within the experience of all who have heard trials with respect to rights of common of this description that the judgment is in accordance with the direction usually given in such cases, viz., that the expression "levant and couchant" is rather the measure
of the capacity of the land to maintain catile than a condition to be complied with as necessary to the right, by the cattle actually lying down and getting up on the land or being sustained by the fruits thereof. For these reasons we think that the judgment of the Court below ought to be affirmed.
IN THE EXCHEQUER CHAMBER.
(Error from the Court of Exchequer.)
FLETCHER v. RYLANDS and Another.
Feb. Tuis was a proceeding in error on the judgment of the A person who,
for his own Court of Exchequer for the defendants on a special case purposes, stated by an arbitrator for the opinion of that Court. The land and col
brings on his
lects and special case (so far as material) is fully set forth in the
keeps there report of the case in the Court below: 3 H. & C. 774. anything
likely to do mischief if it
escapes, must keep it in at his peril, and, if he does not do so, is primâ facie answerable for all the damage which is the natural consequence of its escape.
The defendant made a reservoir for water on his land, and in the selection of the site and the planning and construction of the reservoir employed a competent engineer and competent contractors. In excavating the bed of the reservoir five old shafts were met with, running vertically downwards to old coal workings under the site of the reservoir, and communicating with the plaintiff's colliery by means of other old coal workings under intervening lands. These shafts were filled with soil of the same kind as that which immediately surrounded them, and it was not known to or sus. pected by the defendants, or the persons employed by them in planning or constructing the reservoir, that they were shafts which had been made for the purpose of getting coal under the land beneath the reservoir, or that they led down to coal workings under its site. When the reservoir was completed, and partially filled with water, one of these shafts burst downwards, in consequence of which the water flowed into the old workings underneath the reservoir, and by means of the underground communications into the plaintiff's colliery, and flooded it. There was no personal negligence or default on the part of the defendants, but reasonable and proper care and skill were not exercised by the persons employed, with reference to the shafts, to provide for the sufficiency of the reservoir to bear the pressure of water which, when filled, it would have to bear.
Held, in the Exchequer Chamber (reversing the judgment of the majority of the Court of Exchequer), that under these circumstances the defendants were responsible for the damage done to the plaintiff by the water from the reservoir flooding his colliery