Classifying rights of common
Legal category
Rights appendant and appurtenant: both are rights attached to a farm or other land. Appendant rights arose by privilege of law on arable feoffments (see Glossary) prior Commons Toolkit FS3 Rights to 1290 and are consequently very rare. Appurtenant rights are attached to land by express, implied or presumed grant. Appendant rights are always levant and couchant whereas appurtenant rights could and still can be for a fixed number of animals. The only practical difference between the two is that, prior to the Commons Act 2006, rights appurtenant could be severed from the land and sold separately. The 1958 Royal Commission on common land recommended that, on registration, appendant rights should become appurtenant as the difference between the two had no practical significance. However, this recommendation was not enacted.
In gross: Rights in gross are not attached to land and can be sold separately. There used to be very few rights in gross on the commons registers but there was a growing trend in the late 20th century to convert rights appurtenant to rights in gross which only ended with the Commons Act 2006.
Subject
Pasturage: the most widespread right is the right to graze. This is generally grass or natural vegetation such as heather and bilberry but can also extend to mast, acorns and tree leaves. It does not imply any right to cut vegetation.
Pannage: the right to graze pigs in woods.
Estover: the right to take specific timber products such as whole trees or firewood. The purpose of the estover is usually specified. For example, an estover may be for entire trees required to repair a house or for timber which can be used to repair ploughs and carts. The right is always limited by the size of the original dwelling or land to which the right is attached.
Turbary: the right to take turf or peat for burning as fuel. This is again limited to the requirements of the original property to which it is attached.
Piscary: the right to take fish from ponds, lakes, rivers and streams with a limitation on the needs of the household. 3.6.2.6 Rights in the soil: the right to take part of the soil or minerals from the common, strictly limited to the needs of the property. For example, only the sand required to enable house repairs could be extracted.
Animals ferae naturae: the right to take wild animals. Commons Commissioners have concluded over the years that this is generally not a right of common. This is partly due to the difficulty of distinguishing such a profit from sporting rights that are exercised for enjoyment.
Pur cause de vicinage: this is the mutual right between holders of rights of pasturage on contiguous unenclosed commons not to be sued in trespass if, and when, their animals stray onto the adjacent common. Intercommonage is the same right between owners of divided shares in a common field.