Definition
Common sans nombre is a form of common of pasture that carries no limit on the number of animals a commoner may turn onto the land. Unlike common of pasture appurtenant, which is typically restricted to the number of animals the commoner's dominant tenement can sustain over winter (the levancy and couchancy rule), common sans nombre imposes no such ceiling. The commoner holding this right may graze as many animals as the land will physically bear, subject only to the natural capacity of the pasture itself.
The term is Anglo-French, translating literally as "common without number." The Latin equivalent is communia sine numero. It is also known as common without stint.
Common Language
This term is pure legal jargon of Anglo-French origin with no counterpart in ordinary English. The COMMON LANGUAGE section is omitted.
Common Confusion
Common sans nombre is frequently conflated with common of pasture generally, but the distinction is legally significant. Most common of pasture rights are limited — either by the levancy and couchancy rule (tying the right to the carrying capacity of the commoner's own land) or by express number fixed in the grant. Common sans nombre is the exception: an unlimited right. A researcher who treats all pasture commons as interchangeable will miss this critical distinction, particularly when examining disputes over surcharging — the act of putting more animals on common land than the right permits. Surcharging is a cognizable wrong against fellow commoners where the right is limited; its application to common sans nombre is more complicated precisely because no fixed number exists against which to measure excess.
Recognized Forms
/SUBTYPES
Common sans nombre may arise in two distinct configurations, a distinction that Burrill identifies as dispositive of its validity:
Common sans nombre in gross: Granted to an individual personally, not annexed to land ownership. Burrill reports this form is generally accepted as legally possible, citing the opinions of Crabb and Stephen.
Common sans nombre appurtenant: Claimed by prescription as attached to a dominant tenement. The legal viability of this form was disputed in English cases, with some courts denying that an unlimited appendant or appurtenant right of this kind could exist at common law. The concern is structural: an unlimited right attached to land could destroy the servient tenement entirely, leaving no rational basis for the grant.
Why It Matters in Research
Researchers working in early English land law, colonial American property records, or ecclesiastical and manorial records will encounter this term most frequently in the context of disputes over the extent of pasture rights. Several research traps are worth noting.
First, the validity question is unsettled in the historical sources. Burrill flags English case law denying that common sans nombre can exist in any form, while also reporting the contrary view as the "better opinion" for the in-gross variant. A researcher cannot assume historical courts treated the right as valid; the outcome may have turned on which view the forum adopted.
Second, the distinction between common sans nombre and common without stint is terminological, not substantive — they refer to the same right. Historical sources use both phrases, and older records may use neither, describing the right functionally rather than by name. Searching the corpus for only one label will produce incomplete results.
Third, this term appears in the context of surcharging litigation. When a commoner is accused of surcharging a common, the threshold question is whether the right is limited. If the right is common sans nombre, the surcharging analysis changes, and some courts held the action did not lie at all against a commoner with an unlimited right.
Fourth, corporate capacity matters. Burrill notes that a corporation cannot prescribe for common sans nombre. Researchers examining borough, guild, or institutional land records should not assume that an entity claiming unlimited pasture rights did so validly.
Historical Dictionary Support
Black's Law Dictionary defines the term concisely as common without limit as to number of cattle, equating it with common without stint, and cites Bracton, Stephens's Commentaries, and Blackstone's Commentaries. These citations anchor the term firmly in the foundational treatise literature of English land law.
Burrill's entry is substantially richer and more analytically useful. Burrill flags the doctrinal controversy directly — that some English cases deny the right can exist at all — and then offers a resolution: the right is defensible as common in gross for an individual, but a corporation cannot prescribe for it. Burrill attributes this resolution to Crabb's Real Property and Stephen's Commentaries, giving researchers a clear path to primary treatise authority.
What neither dictionary addresses is the American reception of the doctrine. Common sans nombre as a distinct, unlimited pasture right had limited practical traction in American jurisdictions, where common of pasture rights generally were less prevalent than in England and where the question of corporate prescription rarely arose in the same form. Researchers should not assume the English doctrinal debates map cleanly onto American sources.
Jurisdictional Note
This right is a creature of English land law and appears primarily in English manorial and common law sources. American case law engaging directly with common sans nombre is sparse. Where American courts addressed unlimited pasture rights, they typically did so without using this term, applying general common of pasture doctrine instead.