Definition
Disturbance of common is a common law cause of action arising when a person wrongfully interferes with another's right of common — that is, the right to use another's land for a specific purpose, such as pasturing animals, taking wood, or drawing water. The interference must deprive the commoner of the enjoyment of that right, either in whole or in part.
The wrong takes several recognizable forms: surcharging the common (placing more animals or extracting more resources than the right permits), excluding the commoner from exercising the right entirely, or approving (enclosing) land in a manner that diminishes the common without legal authority. Any of these acts, when committed by one not entitled to disturb the right, gives rise to an action at law for damages or, historically, a writ of nuisance.
Common Confusion
Disturbance of common is frequently confused with nuisance, because the historical remedy for the wrong overlapped with nuisance procedure. The distinction matters: nuisance concerns interference with enjoyment of one's own land; disturbance of common concerns interference with a right exercised over another's land. The underlying entitlement is entirely different, and conflating the two in historical sources can cause a researcher to misread the nature of the plaintiff's claim. Disturbance of common should also be distinguished from approvement of common, which is the specific act of enclosing common land — approvement may constitute a disturbance, but not every disturbance involves enclosure.
Recognized Forms
/SUBTYPES
Surcharge: Driving more cattle or taking more of a resource than the right of common permits. The excess use disturbs the remaining commoners by depleting what their shares entitle them to enjoy.
Enclosure or exclusion: Physically preventing a commoner from entering or using the land to which the right attaches.
Approvement: The lord of the manor enclosing a portion of common land. At common law this was regulated and subject to conditions; approvement without meeting those conditions constituted a disturbance.
Wrongful grant: A grantor conveying land subject to common rights without reserving those rights, or a grantee acting as though the right does not exist.
Why It Matters in Research
This term belongs to a cluster of archaic property concepts that surface regularly in older title records, conveyancing disputes, and English land law materials but rarely in modern American litigation. Researchers working with pre-twentieth-century sources — particularly English equity cases, colonial land grants, or early American common law pleading materials — will encounter it in contexts where the right of common itself must first be understood before the disturbance claim makes sense.
The action is tightly linked to pleading history. Before the forms of action were abolished, the appropriate writ for a disturbance of common was contested terrain: authorities varied on whether the plaintiff should proceed by writ of nuisance, assize of novel disseisin, or an action on the case. Rapalje & Lawrence reflect this procedural complexity. Researchers tracing case law through the English reports should be alert to the form of writ used, because it affected what needed to be proved and what remedy was available.
In American research, the term appears primarily in jurisdictions that inherited English common law intact and in early state court decisions resolving disputes over grazing rights, open range, and shared water. It largely drops from American case law after the mid-nineteenth century as common law forms of action were replaced by code pleading, but the underlying property right — and thus the substantive law — can still be implicated in disputes over easements and profit à prendre.
Do not assume that the absence of the term in a modern index means the concept is absent. Modern courts analyzing interference with a profit à prendre are applying the same substantive law under different vocabulary.
Historical Dictionary Support
Rapalje & Lawrence define disturbance of common as a wrong committed against a person entitled to common by anyone who obstructs or interferes with that right. Their treatment is brief but accurate in identifying the core elements: the existence of a valid right of common, an act of interference by the defendant, and resulting deprivation of the commoner's enjoyment. The entry aligns with the broader common law authorities and does not introduce any American divergence from English doctrine.
What Rapalje & Lawrence do not address in depth is the procedural evolution of the action — the shift from the writ of nuisance and assize to the more flexible action on the case, which became the standard vehicle by the eighteenth century. Researchers relying solely on the Rapalje & Lawrence entry for procedural guidance should supplement it with Blackstone's Commentaries (Book III) and the relevant sections of Chitty's Pleading, both of which address the historical writ choices in more detail.
No significant divergence exists among the standard historical dictionaries on the core substantive definition, which remained stable across English and American common law through the period when these reference works were compiled.
Jurisdictional Note
The action is English in origin and was adopted by American common law jurisdictions as part of the general reception of English law. It has no meaningful role in Louisiana (civil law) or in jurisdictions where common law forms of action were displaced early. Where open-range grazing rights or shared-water rights created functional equivalents of commons, courts sometimes applied the doctrine by analogy without using the term.
Encyclopedia Cross-Reference
The Law Mind Property Law Encyclopedia: Concurrent Ownership — Tenancy in Common (property_10) — for background on shared use rights in land, which provides useful conceptual context for understanding the commoner's interest that a disturbance threatens.