Definition
An easement or right to pasture cattle on another person's land. Herbage consists in the liberty of feeding animals on the grasses and ground cover of another's property — the natural produce of the land consumed by grazing animals — without any right to the soil itself or to the land's other products. It is distinguished from ownership of the land and does not carry with it any entitlement to cut grass, harvest crops, dig roots, or gather fruit. The right is confined to what grazing animals take by their own feeding.
Common Language
Modern common usage (Wiktionary): Herbs collectively; herbaceous plant growth, especially grass; the fleshy, often edible parts of plants; also, the natural pasture of land considered distinct from the land itself, and hence a right of pasture on another's land.
Historical common usage (Webster's 1913): Herbs collectively; green food for beasts; grass; pasture. Also, the liberty or right of pasture in the forest or in the grounds of another man.
The common meaning of herbage — grass, herbs, or plant growth generally — overlaps with but is broader than the legal meaning. In legal usage, herbage is not the vegetation itself but the right to use it: a defined easement running in favor of one person over another's land. A researcher encountering herbage in a deed or grant is reading about an incorporeal right, not a description of plant life.
Common Confusion
Herbage is sometimes equated with vesture. Rapalje & Lawrence treat them as synonyms, citing Co. Litt. 4b. Burrill defines herbage as the produce or vesture of land consumed by grazing animals (vestura terrae quae dentibus animalium decerpitur). The two terms overlap but are not identical: vesture is broader, encompassing the full standing crop of land, including grain and grass whether grazed or cut, while herbage in its precise legal sense is limited to what animals take by grazing. A grant of herbage does not convey the soil; a grant of vesture may carry a broader interest in the land's surface produce. The distinction matters when interpreting historical conveyances.
Why It Matters in Research
Herbage appears most frequently in older English land records, grants of common rights, and forest law materials. Researchers working with pre-twentieth-century deeds, manorial records, or documents involving rights of common should treat herbage as a term of art signaling an incorporeal hereditament — a right appurtenant to land or held in gross — rather than a description of physical vegetation.
The critical research trap is the scope limitation. A grant of herbage historically did not include the right to cut grass (as opposed to grazing it), dig potatoes, or pick apples. This narrow construction was applied by American courts as well as English ones, making herbage a legally confined right even when the grant language appears broad.
Researchers tracing common rights in English law should distinguish herbage from related rights such as pannage (mast for swine), piscary (fishing), and turbary (peat cutting). These appear together in forest and manorial records, and conflating them leads to misreading what any particular grant conveyed.
In American legal materials, herbage appears primarily in nineteenth-century New England cases and land records reflecting inherited English common law concepts. Its frequency declines sharply after that period. Researchers encountering it in twentieth-century materials are likely reading a quotation from or citation to an older source.
The note in Rapalje & Lawrence that a grant of herbage does not convey the soil (1 Pick. (Mass.) 224) is significant for title research: herbage was consistently treated as a right over land, not a partial conveyance of the land itself.
Historical Dictionary Support
The historical dictionaries are in close agreement on the core definition. Black's (both editions), Bouvier, and Burrill all define herbage as an easement or liberty to pasture cattle on another's ground, with Black's and Bouvier specifically noting that the right does not extend to cutting grass, digging potatoes, or picking apples. This consistent limitation across sources reflects a well-settled doctrinal line rather than a contested question.
Burrill adds the most texture, providing the Latin law phrase vestura terrae quae dentibus animalium decerpitur — the vesture of land which is cropped by the teeth of animals — which clarifies why the right is confined to grazing: the historical conception was defined by the mode of taking, not merely by the category of vegetation. This explains why mowing and harvesting fell outside the right even when the same plants were involved.
Rapalje & Lawrence's equation of herbage with vesture is the outlier position and should be read cautiously. The weight of authority treats them as overlapping but distinct, with vesture the broader term.
None of the historical dictionaries address American statutory treatment or the adaptation of these English common rights concepts to American land law, which developed unevenly by jurisdiction. Researchers should not assume the English doctrinal framework translated wholesale.
Jurisdictional Note
Herbage as a formal easement category is primarily an English common law concept. In the United States, the term appears in nineteenth-century case law, particularly in New England, where English land law traditions had the deepest influence. Modern American land law has largely absorbed or replaced these specific common right categories with broader easement doctrine. Researchers should verify whether a given jurisdiction recognized herbage as a distinct legal category or treated it as a species of pasture easement.