Definition
Common of turbary is a property right entitling the holder to dig or cut peat, turf, or similar combustible material from the land of another person — typically the lord's waste or common land — for use as fuel in a designated dwelling. It is one of the several recognized species of common rights in English property law, alongside common of pasture, common of piscary, and common of estovers.
The right is tied to the fuel needs of a specific house, not to landholding generally. Turfs or peat cut under this right must be burned in the commoner's own house; the right does not authorize commercial extraction, sale, or use on other properties. It does not convey any ownership interest in the land itself, nor does it extend to timber, mineral rights, or subsurface resources. The owner of the soil retains the freehold and cannot be excluded from the land.
Common Language
Modern common usage (Wiktionary): "Turbary" is defined as the right to cut peat or turf for fuel from another's land, or alternatively, a place where peat or turf is dug.
Historical common usage (Webster's 1913): Webster's defines turbary as "a place where turf or peat is dug" and notes that common of turbary is the legal right to cut turf on another's ground.
In ordinary usage, "turbary" refers primarily to the physical place of digging. In its legal sense, the term describes the right itself — a profitable common appurtenant to a house — which carries specific limitations (domestic use only, no exclusion of the owner) that the geographic meaning does not suggest.
Core Elements
The following elements define and limit the right:
Beneficiary structure: The right attaches to a house, not to land. Only the occupant of the designated dwelling may exercise the right, and only to supply that dwelling with fuel.
Scope of extraction: Limited to peat, turf, or similar combustible surface material. Does not extend to timber, stone, ore, or other subsurface resources.
No possessory interest: The right is incorporeal. It does not give the commoner possession of or title to the soil. The owner of the land retains full freehold rights and access.
Mode of acquisition: May be acquired by express grant or by prescription (long use). Burrill notes it is most commonly claimed as appurtenant and by prescription.
Classification: Typically appurtenant (attached to a particular tenement, passing with it on transfer), but may also exist in gross (held by a person independently of land ownership), though this is less common.
Recognized Forms
/SUBTYPES
Appurtenant: Attached to a specific house or tenement and passes automatically with the property on conveyance. This is the standard form.
In gross: Held by an individual personally, not tied to ownership or occupation of any particular property. Recognized but historically uncommon for turbary. It cannot be claimed as appurtenant to land used for agricultural or other purposes — the connection to a house for domestic fuel is essential.
Why It Matters in Research
Common of turbary is an archaic right that will almost never appear in modern American legal materials but surfaces regularly in English legal history, early colonial land records, and historical common law treatises. Researchers working with pre-19th century English or colonial land documents should recognize it as a type of incorporeal hereditament — a non-possessory property right that runs with land and transfers by deed or prescription.
The domestic-use limitation is a critical interpretive point: historical documents granting turbary rights are not grants of general mineral or extraction rights. A researcher who conflates turbary with a broader easement of resource extraction will misread the scope of the original conveyance.
The right's connection to a house (not land) also has implications for how transfers and extinctions are tracked. When the house was demolished or fell into ruin, questions arose about whether the appurtenant right survived — a nuance that does not appear explicitly in the short dictionary entries but is implied by the structure of the right.
Researchers using Burrill's entry should note it is cut off mid-sentence in surviving editions at the point of explaining when turbary cannot be claimed as appurtenant — this truncation is a known artifact of the source, not a research error. Bouvier and Co. Litt. (Coke on Littleton, Inst. 4, 122) supply the fuller statement.
Historical Dictionary Support
All three source dictionaries agree on the essential structure: turbary is a right to dig turf for domestic fuel, appurtenant to a house, carrying no ownership interest in the soil. The sources converge on Coke on Littleton (Co. Litt. 122) as the foundational authority, with Burrill also citing Chitty's Blackstone and Stephen's Commentaries.
Bouvier adds the useful clarification that the right cannot exclude the owner of the soil — a limitation the other entries leave implicit. Black's, unusually, appends a sentence on "common opinion" as legal authority (citing Co. Litt. 186a) that appears to be an unrelated editorial fragment carried over from a nearby passage in the original compilation; researchers should treat it as an artifact of the editorial process, not substantively connected to turbary.
Burrill's entry is the most technically precise, noting that the right may arise by grant or prescription and may be either appurtenant or in gross — a distinction Bouvier gestures toward but does not develop. Burrill's truncation (the entry ends mid-clause) means it cannot be relied upon as complete.
None of the three entries address the extinction or suspension of the right, the effect of enclosure legislation on turbary claims, or the right's treatment under the English Commons Registration Act 1965 — gaps that matter for researchers tracing turbary rights into the modern period.
Jurisdictional Note
Common of turbary is a creature of English common law and has no meaningful presence in American law outside of historical property disputes in early colonial jurisdictions. In England and Wales, surviving common rights including turbary are now registered under the Commons Registration Act 1965 (as amended by the Commons Act 2006); unregistered rights were generally extinguished. Researchers working with English land records post-1965 should consult the commons register for any surviving turbary claims.