Definition
Common of digging — also called common in the soil — is a property right entitling one person to enter another's land and extract specified solid materials from the ground for their own use. The materials most frequently subject to this right are sand, gravel, clay, and stones. Unlike a mere license or temporary permission, the right constitutes a recognized form of profit à prendre: an incorporeal hereditament running with the land or attached to a particular person, enforceable against the landowner.
The right is limited in scope by its grant or prescription. A person holding a common of digging cannot extract materials beyond those specified, nor in quantities exceeding what the right permits. It does not extend to minerals or substances not contemplated at the time the right was created unless the grant expressly includes them.
Why It Matters in Research
Common of digging is one of the older and less frequently litigated of the commons rights, which means historical sources treat it briefly and modern sources may omit it entirely. Researchers encountering the term in older deeds, conveyances, or land dispute records should recognize it as a species of profit à prendre, not a possessory interest in the land itself. This distinction matters: the holder gains no right to occupy the soil, only to extract designated materials.
The right occupies a position close to common of turbary (the right to cut peat or turf) and common of estovers (the right to take wood). These three are often grouped together in historical treatises because they all involve extracting something tangible from another's land, as opposed to commons of pasture, which involves only the use of surface herbage. When reviewing historical land records, researchers should watch for all three being conveyed together — a bundling practice that was common in agricultural and rural land settlements.
A significant research trap: the distinction between a profit à prendre held in gross (attached to a person) and one appurtenant (attached to a dominant tenement) affects who can exercise the right, whether it transfers, and how it terminates. Early conveyances are often ambiguous on this point, and courts historically had to determine the character of the right from surrounding circumstances. Researchers should not assume the right is appurtenant merely because it is mentioned in a deed alongside other land rights.
Modern relevance is narrow but not zero. Disputes over extractive rights on rural or agricultural land — particularly in jurisdictions where older common law grants survive — may invoke this category. In American practice, common of digging has largely been displaced by express easements, licenses, and mineral rights frameworks, but the historical right may still surface in chain-of-title analysis or quiet title proceedings involving older parcels.
Historical Dictionary Support
Black's Law Dictionary provides the core definition and correctly identifies common of digging as analogous to common of estovers and common of turbary. The reference to Elton's treatise on commons is the principal historical authority. Black's treatment is brief, consistent with the right's status as a narrow and relatively uncommon species of profit. No significant divergence appears across historical legal dictionaries on the basic character of the right, though some sources fold it into broader discussions of profits à prendre without giving it a distinct entry.
What historical sources largely omit: the question of how the right interacts with modern mineral rights doctrine, which developed substantially in the nineteenth and twentieth centuries. The historical framework treats digging rights as limited to surface or near-surface materials — sand, gravel, clay — and does not contemplate deep subsurface extraction. Researchers should not use the historical common of digging framework to analyze disputes involving oil, gas, or hard rock minerals; those questions are governed by entirely separate doctrine.
Jurisdictional Note
Common of digging as a formally recognized common law right is primarily a feature of English land law and jurisdictions that received English common law intact. In the United States, the right survives in principle where created by historical grant or prescription, but most states have not developed a significant modern body of case law around it. Researchers working with American land records should treat the right as a historical artifact that may bind current title but is unlikely to be governed by developed local precedent.