Definition
Common because of vicinage (also rendered as "common because of viciné" or "common per cause de vicinage") is a species of common of pasture arising not from express grant or prescription but from the mutual acquiescence of neighboring communities. Where the inhabitants of two adjacent townships have long permitted their cattle to stray across their shared boundary and graze on each other's open lands without objection, the law recognizes this pattern of tolerance as a form of common right. Neither community has formally granted anything to the other; the right arises instead from the practical reality of open, unfenced borderlands and the custom of mutual forbearance.
The right is permissive in character. It excuses what would otherwise be a trespass by the straying animals, but it does not create an affirmative entitlement to drive cattle onto the neighbor's land deliberately. The moment one township encloses its lands, the right is extinguished as to that township — the very act of enclosure ends the condition (open, intermingled grazing) that gave rise to the right in the first place.
Common Language
This entry involves no ordinary English counterpart. "Vicinage" is legal and archaic vocabulary (derived from the Latin vicinus, meaning neighbor or neighborhood), and the compound phrase "common because of vicinage" has no meaningful usage outside legal and historical sources. The COMMON LANGUAGE section is omitted.
Common Confusion
COMMON BECAUSE OF VICINAGE vs. COMMON OF PASTURE BY PRESCRIPTION: These are distinct bases for a grazing right. Common by prescription rests on long-established, affirmative use as of right — the claimant has used the land and asserts an entitlement grounded in that use. Common because of vicinage rests on mutual tolerance between neighboring communities; neither side asserts a right against the other so much as each excuses the other's animals from trespass liability. The distinction matters in pleading and in termination: enclosure ends common because of vicinage automatically, whereas it does not automatically extinguish a prescriptive common.
COMMON BECAUSE OF VICINAGE vs. COMMON IN GROSS: Common in gross is a personal right, held by an individual independent of any dominant tenement. Common because of vicinage is never personal — it inheres in the community of inhabitants relative to their neighboring community and cannot be severed or assigned.
Core Elements
For common because of vicinage to be recognized, the following conditions must typically be present:
1. Contiguity. The two townships or communities must lie adjacent to one another, sharing a common boundary or border zone.
2. Open, unenclosed land. The right presupposes that the relevant lands are not fenced or enclosed. Enclosure on either side destroys the foundation of the right.
3. Mutual intercommoning. The straying must be reciprocal — beasts of each community wandering into the other's fields. A one-sided pattern of intrusion would more likely sound in trespass than give rise to a mutual right.
4. Acquiescence. Neither community must have objected to or expelled the other's animals. The right grows from prolonged toleration, not assertion.
5. Custom, not grant. No deed, charter, or formal agreement is required or expected. The right is entirely customary in origin.
Why It Matters in Research
This term appears almost exclusively in older English common law materials and in American treatises and digests from the colonial through mid-nineteenth century periods. Researchers working in those sources should be alert to several navigational issues.
First, the term is frequently abbreviated or rendered inconsistently. You will encounter "common per cause de vicinage," "common because of viciné," "vicinage common," and simply "intercommoning" used as rough synonyms. Black's Law Dictionary preserves the form "common because of vicinage," but older English authorities (particularly Blackstone's Commentaries and Coke's Institutes) use the Law French form. Search for both when canvassing historical sources.
Second, this right was largely rendered obsolete in England by the enclosure movement and in the American colonies and states by relatively rapid fencing of agricultural land. American case law on this specific right is sparse. Researchers encountering the term in American sources are usually reading inherited English doctrine being described rather than applied.
Third, the right sits at an intersection of several Law Mind research threads: the law of commons, the law of trespass by animals (cattle trespass), the fence laws of individual states, and the broader history of open-range versus closed-range grazing regimes. The open-range/closed-range distinction in American western states is a descendant of the same underlying legal logic — who bears the burden of fencing, and what is the default rule when animals stray — even though those later doctrines are statutory rather than customary.
Fourth, researchers should not conflate this right with the broader category of "common of pasture," of which common because of vicinage is only one subtype. Treatises organizing the types of common rights (Blackstone being the canonical source) distinguish four principal forms; vicinage is the one most dependent on neighborhood custom and most easily terminated.
Historical Dictionary Support
Black's Law Dictionary preserves this term but the surviving source fragment is partial and somewhat garbled in transcription. The entry describes the right in terms closely tracking Blackstone: two contiguous townships whose beasts "stray mutually into each other's fields, without any molestation from either," characterizing it as "a permissive right, intended to excuse" what would otherwise be trespass. This framing — permissive, excusatory, not affirmative — is the doctrinal core and is consistent across historical authorities.
The fragment also gestures toward the broader sense of "common" as an unenclosed piece of land set apart for public use, which is a related but distinct concept. Researchers should be careful not to conflate the right of common because of vicinage (a mutual neighborhood custom) with the physical common (a designated public green or pasture ground).
Blackstone's Commentaries (Book II, Chapter 3) remains the most thorough classical treatment. Blackstone identifies common because of vicinage as the fourth and least formal of the recognized types of common of pasture, stressing its precariousness: it "may be destroyed by inclosing and approving, though the custom hath continued ever so long." That observation tracks the practical significance of the enclosure acts and explains why the right rarely survived into modern law.
Jurisdictional Note
Common because of vicinage is a common law doctrine of English origin and has no significant statutory presence in any American jurisdiction. Where American courts have referenced it, the context is almost always historical or analogical rather than the direct application of the right. Researchers in English legal history will find the doctrine more fully developed; American researchers will more often encounter it as doctrinal background to questions about livestock trespass, fence law, or open-range grazing rights.
Encyclopedia Cross-Reference
See Law Mind Encyclopedia: Common Rights and Rights of Common; Pasture and Grazing Rights; Trespass by Animals