Definition
Common of pasture is a property right entitling its holder to graze livestock on land belonging to another person. The right-holder (the commoner) may use the land for grazing alongside the landowner or alongside other commoners who hold similar rights over the same land. It is a form of the broader category known as common of estovers and belongs to the class of incorporeal hereditaments — property interests that are real property rights but carry no physical possession of the land itself.
The right runs against the land burdened by it and, depending on its type, may be attached to the commoner's own land or held independently.
Common Confusion
Common of pasture is frequently encountered alongside — and confused with — several related grazing rights. Common of turbary (the right to cut peat or turf for fuel) and common of estovers (the right to take wood) appear in the same historical sources and share the same structural framework. The confusion is compounded because all three belong to the umbrella category of "profit à prendre" — rights to take something from another's land. Common of pasture is specific to grazing animals; it does not extend to timber, soil, or any other resource.
A secondary confusion: "common" in this context does not refer to common land in the sense of a village green or public open space. It is a private legal right held by an identifiable person against a specific parcel of land.
Recognized Forms
/SUBTYPES
Historical law recognized four distinct types of common of pasture, each with different origins, scope, and legal treatment:
1. Common appendant. The oldest and most favored form. Attached automatically to arable land as a matter of law when the land was originally granted from a lord's waste. Entitles the holder to graze commonable animals (horses, oxen, cows, sheep) on the lord's waste in numbers sufficient to plow and manure the arable land. Arose by operation of law, not by express grant.
2. Common appurtenant. Attached to land but created by express grant rather than by legal implication. Broader than common appendant — it can cover non-commonable animals (pigs, goats) and need not be limited by the needs of the attached land. Governed by the terms of the grant.
3. Common in gross. A personal right not attached to any land. It belongs to a person individually and does not pass automatically with the sale of any estate. Can be inherited and, in some formulations, assigned, but does not benefit a dominant tenement. Surveyors and researchers should treat in gross rights with particular attention because their chain of title is separate from any land conveyance.
4. Common because of vicinage (de vicinage). A mutual tolerance between neighboring communities whose animals have historically strayed across unfenced boundaries. It is the weakest and most precarious of the four — not a true property right so much as a legally recognized custom of forbearance. Neither community can claim it against the other if fences are erected; it extinguishes when the boundary is enclosed.
Why It Matters in Research
This term requires careful attention to historical context. Common of pasture is a feudal-era concept deeply embedded in English land law, and most of the operative authority dates from Blackstone, Coke on Littleton, and Stephens. Researchers working in American primary sources will find it primarily in:
— Early colonial and post-colonial land disputes, particularly in New England towns with common fields and shared grazing areas;
— Cases arising in states whose land law derives from English common law, especially New York (note the Wendell citation in Burrill pointing to 10 Wend. 647);
— Scotch law, where the equivalent right is termed "common pasturage" — a terminological difference that can cause missed results in searches of mixed Anglo-Scottish legal collections.
A structural trap: the four subtypes carry meaningfully different legal consequences, particularly on questions of extinguishment and apportionment. A source that says a common of pasture was "lost" may mean different things depending on whether the right was appendant (could be lost by unity of seisin), appurtenant (extinguished by express release or unity of title), in gross (extinguished only by express grant or abandonment), or because of vicinage (extinguished by enclosure). Researchers who flatten these distinctions will misread the outcome of the dispute.
In modern American property law, the right has been largely displaced by statutory schemes, zoning, and fee simple arrangements. Where it persists — or is claimed to persist — it will appear most often in title examination disputes, boundary litigation in rural jurisdictions, and occasionally in disputes involving Native American land use customs analyzed under common law frameworks.
The encyclopedia entries on concurrent ownership and common fund doctrine in the Law Mind corpus are structurally unrelated; this term belongs to the profit à prendre and servitude family of property concepts, not to co-ownership or litigation finance.
Historical Dictionary Support
Black's and Burrill's are in close agreement on the core definition and both enumerate the same four subtypes. Burrill adds the Scotch law parallel ("common pasturage") and provides the more precise formulation — "in common with the owner, or with other persons" — which usefully distinguishes this right from exclusive grazing rights. Both sources anchor the analysis to Blackstone's Commentaries (2 Bl. Com. 32) and Coke on Littleton (Co. Litt. 122a), the foundational authorities for any serious work on this right.
What the historical dictionaries do not address: the American reception of this doctrine and the degree to which courts in individual states accepted, modified, or rejected the four-type framework. Researchers should not assume uniform American adoption from the English formulation alone.
Jurisdictional Note
Common of pasture as a live legal doctrine is primarily of English origin and has limited direct operation in modern American law. Where American courts have addressed it, the analysis has varied — some jurisdictions applied the full English typology, others collapsed the distinctions or treated all such rights as profits à prendre without further classification. Researchers working in Louisiana should be alert that civil law governs and the English common law framework does not apply.