Definition
A right of pasture — the right to feed one's animals on the land of another — that is founded on an express grant or on prescription that presupposes a grant. It is one of the classical forms of common of pasture recognized in English real property law and is distinguished from common appendant primarily by its origin and scope. Where common appendant arose automatically from the ancient relationship of lord and tenant and was confined to traditionally commonable beasts on arable land, common appurtenant arises by deliberate grant or long-established prescriptive use. It attaches to the dominant tenement as an appurtenance — that is, as a right that runs with a specific parcel of land — and therefore benefits whoever owns that land.
Because it does not arise from tenure, common appurtenant is not limited to horses, oxen, cows, and sheep (the beasts ordinarily commonable at common law). It may extend to other animals, such as pigs or goats, if the grant or prescription supports that scope. It is also not confined to arable land; the dominant tenement may be any kind of land capable of benefiting from the right.
Common Confusion
COMMON APPURTENANT vs. COMMON APPENDANT: These two forms of common of pasture are closely related and are often treated as interchangeable in casual usage, but they are legally distinct. Common appendant arose by operation of law from the feudal relationship between a lord and a freehold tenant of arable land, and it could not be created after the statute Quia Emptores (1290). Common appurtenant, by contrast, arises only by express grant or prescription and may be created at any time within the legal memory of the court — or, under prescription doctrine, at any time at all if use has been sufficiently long. The practical consequence is that common appurtenant has greater flexibility in scope but requires affirmative proof of a grant or qualifying prescriptive use. Common appendant was presumed from tenure; common appurtenant never is.
COMMON APPURTENANT vs. COMMON IN GROSS: Common in gross is a right of pasture that benefits a person rather than a dominant tenement. Common appurtenant, as its name signals, runs with land. A researcher encountering a right of pasture claimed personally — not as an incident of land ownership — is looking at common in gross, not common appurtenant.
Recognized Forms
/SUBTYPES
Common appurtenant may be:
CERTAIN COMMON: The right is limited to a fixed number of animals, specified in the grant or established by prescription.
UNCERTAIN COMMON (LEVANT AND COUCHANT): The right extends to as many animals as the dominant tenement can sustain over winter — that is, as many as have "levanted and couchanted" (lain down and risen) on the claimant's own land. This is the default measure where no specific number is stated.
Why It Matters in Research
Common appurtenant belongs to the category of common of pasture, itself a subset of the broader common law classification of profits à prendre — rights to take something from another's land. Researchers encountering claims to grazing rights in historical English land records, colonial American conveyances, or early state court decisions should expect to encounter all three varieties (appendant, appurtenant, in gross) without clear labeling. The distinction matters because the proof required differs: common appendant demanded evidence of the feudal tenure relationship; common appurtenant demanded a grant or prescriptive use traceable to a plausible grant.
In American legal history, common appurtenant survived the transplantation of English real property law into the colonies and early states, but its practical significance declined as land was fenced and commons were extinguished through enclosure-equivalent legislation. By the nineteenth century, many American courts were reluctant to recognize or expand these rights, and some jurisdictions folded the concept into the general law of easements and profits. Researchers working in American sources after roughly 1850 should look for common appurtenant claims being litigated under easement or profit doctrine rather than under the older common law classification.
A corpus trap: historical dictionary entries for common appurtenant sometimes blend its definition with that of common appendant, and older English treatise writers occasionally use the terms loosely. When reading primary sources, verify which form of common is actually at issue by examining the claimed origin (grant or tenure) and the type of land and animals involved.
Historical Dictionary Support
The three source dictionaries agree on the essentials. All three define common appurtenant as a right of pasture founded on grant or prescription that supposes a grant, and all three distinguish it from common appendant on the basis of its origin and its freedom from the constraints of tenure. Burrill adds the important qualification that it "arises from no connexion of tenure, and is against common right" — meaning that unlike common appendant, which was presumed from the ancient feudal system, common appurtenant runs contrary to the baseline assumption that a landowner controls all use of the land. That framing helps explain why courts required affirmative proof of a grant or long prescriptive use to establish it.
Bouvier's entry is the most expansive, noting that common appurtenant may attach to any kind of land (not just arable) and may extend beyond the traditionally commonable beasts. This aligns with the standard English treatise position as reflected in Crabb's Real Property, which all three dictionaries cite. None of the historical entries addresses the American evolution of the doctrine or its absorption into broader easement and profit doctrine — a gap that limits their usefulness for post-colonial American research.
Jurisdictional Note
In England, common appurtenant was significantly curtailed and ultimately largely extinguished through enclosure legislation, culminating in the Commons Act 2006. In the United States, no uniform rule governs its modern status; some states have effectively absorbed it into the law of profits à prendre, while others retain common law categories in name. Researchers should verify whether a given jurisdiction's case law recognizes the common appurtenant/appendant distinction or has collapsed it into general profit doctrine.
Encyclopedia Cross-Reference
property_69: Easements — Overview and Classification (Appurtenant vs. In Gross, Affirmative vs. Negative) (The Law Mind Property Law Encyclopedia)