Definition
Extinguishment of common is the termination or destruction of a right of common — that is, the right one person holds to use another's land for a specific purpose, such as grazing animals, gathering wood, or taking fish. When a right of common is extinguished, it is permanently ended, not merely suspended. The right does not pass to another holder; it is absorbed or released back into the servient estate and ceases to exist as a separate legal interest.
Rights of common are incorporeal hereditaments — interests in land that are appurtenant (attached) to dominant land or, less commonly, held in gross. Their extinguishment therefore affects not just the immediate parties but potentially the land itself in perpetuity.
Common Confusion
Extinguishment is often confused with suspension or abandonment of common.
Suspension is temporary. A right of common may be suspended during a period when its exercise is legally prevented, but it revives afterward. Extinguishment is permanent and irreversible — the right cannot be revived once extinguished.
Abandonment requires intention to relinquish the right, typically evidenced by acts inconsistent with continued enjoyment. Extinguishment, by contrast, can occur by operation of law — particularly through unity of seisin — regardless of the parties' intentions. A commoner may have no intention of surrendering the right, yet extinguishment occurs automatically when the qualifying legal event takes place.
Recognized Forms
/SUBTYPES
Extinguishment of common occurs through several recognized mechanisms:
By Unity of Seisin. When the person entitled to common acquires ownership of the servient land (the land burdened by the right), the right merges into the fee and is extinguished. A single person cannot hold a right against their own land. This is the most automatic form of extinguishment — it operates by law the moment the unity of ownership is complete.
By Severance. A right of common appurtenant is attached to a dominant tenement. If the right is severed from that land — separated from it by grant or other dealing — so that it can no longer be exercised as an incident of ownership of that land, it is extinguished. A right appurtenant cannot float free of the land it serves; severance destroys it.
By Release. The commoner may formally release the right to the owner of the servient estate. This requires proper formality — historically, a deed under seal — and once executed, the right is permanently surrendered.
By Other Causes. Historically recognized additional grounds include enclosure acts (statutory extinguishment of common rights over enclosed land), excessive use that permanently destroys the subject of the common, and, in some authorities, long non-use under conditions amounting to abandonment.
Why It Matters in Research
This term sits at the intersection of historical property law and land title research. Rights of common were far more prevalent in English and early American land practice than modern practitioners appreciate. A researcher tracing title to rural or agricultural land — particularly in states whose law derives heavily from the English common law — may encounter rights of common that appear in early deeds, court records, or manorial documents and must determine whether those rights survived or were extinguished.
The unity of seisin doctrine is the most significant trap. A researcher reviewing a chain of title may find a period during which a single owner held both the dominant and servient estates. Under the common law rule, this automatically extinguished any appurtenant right of common during that period. Whether the right revived upon re-separation of the estates is contested and jurisdiction-dependent — the English common law rule was that the right was permanently extinguished, not merely suspended.
Statutory extinguishment is the other major research alert. Enclosure legislation in England extinguished vast numbers of common rights by act of Parliament, and American equivalents appear in drainage, fencing, and land-division statutes. Researchers using 18th or 19th century sources must check whether a right that appears in early records was later terminated by statute.
The concept also bears on modern disputes. Prescriptive easements and licenses are sometimes confused with rights of common in older sources; their extinguishment rules differ. Correctly identifying the nature of the original right is a prerequisite to correctly applying extinguishment doctrine.
Historical Dictionary Support
Black's Law Dictionary treats the subject at a high level of generality — noting only that the right may be lost and that various causes exist — without enumerating them. This reflects the dictionary's compressed format rather than any view that the subject is simple.
Burrill's Law Dictionary is more useful to the working researcher. Burrill identifies the three primary modes — unity of seisin, severance, and release — and cites supporting treatise authority (Stephen's Commentaries and Crabb's Real Property), giving researchers a pathway into the 19th century treatise literature. Burrill's entry, though fragmentary as reproduced, reflects the classical common law structure of the doctrine as it was understood by mid-19th century English and American courts.
Neither dictionary addresses statutory extinguishment systematically, a gap that is significant for researchers working in any period after the major enclosure acts or their American analogs. The treatise sources Burrill cites — particularly Crabb — remain useful entry points for detailed doctrine, though they must be read with awareness that American courts sometimes modified English common law rules.
Jurisdictional Note
Rights of common and their extinguishment are substantially more developed in English law than in American law, where the doctrine's practical importance declined as fee simple ownership became the dominant land tenure. American states that recognize rights of common generally apply common law extinguishment principles, but case law is sparse. States with significant agricultural, riparian, or grazing commons traditions — particularly in the West — may have statutory regimes that overlay or displace common law rules.
Encyclopedia Cross-Reference
The Law Mind Property Law Encyclopedia: Concurrent Ownership — Tenancy in Common (property_10) — for background on shared property interests and the seisin concepts that underlie unity of seisin extinguishment.