Definition
Turbaria (also turbary or turfery) is the land or ground from which turf or peat is dug for use as fuel. In old English property law, the term carries two related but distinct meanings:
1. The physical soil or ground itself — the parcel of land from which turf may be excavated.
2. A right of turbaria — the legal right to enter another's land and cut turf from it, which is a species of profit à prendre (a right to take a natural product from another's land).
In common law property, turbaria most frequently appears in the second sense: as a heritable incorporeal right appurtenant to a tenement, entitling the holder to take a defined quantity of turf for domestic fuel purposes. It could also be held in common by multiple tenants, in which case no single holder's share was separately defined unless partitioned.
Common Confusion
Turbaria and common of turbary are closely related but technically distinct. Turbaria in its strict sense denotes the land itself; common of turbary denotes the shared right to take turf from it. In practice, the two terms were used interchangeably in historical sources, and researchers will encounter both forms referring to the right rather than the land. Burrill's entry reflects this dual usage: turbaria names the soil, yet Fleta's quoted passage treats it as a thing held in common alongside fisheries and woods — plainly referencing the right.
Turbaria should also be distinguished from estovers (the right to take wood) and piscaria (the right to fish), though all three are profits à prendre that frequently appeared together in medieval grants and common-right disputes.
Why It Matters in Research
The term is largely obsolete in modern practice but appears with regularity in:
— Medieval and early modern conveyances, particularly in regions where peat was a primary fuel source (the English fens, moorlands, and upland commons).
— Manorial records, surveys, and extents that enumerate common rights attached to copyhold or customary tenancies.
— Enclosure proceedings, where rights of turbaria had to be commuted or extinguished before common land could be enclosed.
— Pleadings in real actions concerning common rights, where courts distinguished between rights appurtenant (attached to a tenement) and rights in gross (held independently of land ownership).
Researchers working in pre-enclosure property records should note that turbaria held in common presented particular valuation difficulties: as Fleta observes, where two or more tenants hold a turbary in common without any one knowing his separate share, the right was effectively undivided. This matters for interpreting historical disputes and enclosure awards that attempted to quantify and convert such rights.
The term also signals jurisdictional depth: turbaria rights survived in English law well into the nineteenth century in some regions, particularly in areas subject to late enclosure. Enclosure Acts and awards are therefore a primary corpus source for resolving questions about the extent and termination of specific turbaria rights.
Historical Dictionary Support
Burrill's Law Dictionary provides the foundational entry: turbaria as the soil or ground from which turf is dug, glossed as equivalent to "turbary or turfery." Burrill draws directly on Fleta (lib. 2, c. 41, § 2), a late thirteenth-century legal treatise, for both the Latin term and a contextual passage illustrating undivided common turbaria held alongside woods and fisheries.
The Fleta passage is instructive beyond mere definition: it situates turbaria within the category of things that could be held in common by multiple tenants without individual shares being ascertainable — a condition that generated distinct procedural consequences in real actions. Burrill's entry does not address those procedural dimensions, which are better pursued through sources on common of turbary and profit à prendre.
Historical dictionaries generally treat turbaria as a Latinized form serving as technical shorthand in pleading and in learned treatises; the vernacular English equivalents (turbary, turfery) carried the same meaning in documents written in English. Researchers should not assume that the Latin form signals a more restricted or different meaning — it is a register difference, not a substantive one.
Jurisdictional Note
Turbaria as a distinct legal category is English in origin and follows the common law of profits à prendre. Equivalent rights existed in other common law jurisdictions where peat or turf cutting was economically significant, but the specific terminology and doctrinal framework are products of English land law. In Scotland, comparable rights were governed under distinct feudal principles. American jurisdictions largely lack the concept as a live doctrine.