Definition
An easement giving the holder the right to dig or cut turf (peat) on another person's land for use as fuel. Turbary is one of the ancient common law profits à prendre — rights to take a natural resource from another's land — and exists in two principal forms: as an appurtenant right attached to a particular house, or as a right in gross held independently of any dominant tenement.
Where turbary is appurtenant, it is strictly limited: the right runs with the benefited dwelling and authorizes the taking of turf only in quantities sufficient for use as fuel at that specific house. It cannot be exercised for commercial sale or profit, and it cannot be severed from the house it serves. Where the right exists in gross, it is held personally rather than attached to land, though this form is historically less common.
Common Language
Modern common usage (Wiktionary): Peatland from which peat or turf may be cut for fuel; a piece of such land, a peat bog; also, the material itself (peat).
Historical common usage (Webster's 1913): A right of digging turf on another man's land; also, the ground where turf is dug.
The common usage captures the physical landscape — the boggy ground itself — while the legal term refers exclusively to the right to work that ground. A researcher who encounters "turbary" in a deed, pleading, or estate record should not assume it describes a parcel of land being conveyed; it almost certainly describes a profit à prendre burdening someone else's land.
Common Confusion
Turbary is frequently grouped with, and sometimes confused with, the four great common law commons: pasture, piscary, estovers, and turbary. Though turbary belongs to this family, it is a profit à prendre (a right to take something from the land), not a mere easement of use. The distinction matters for succession, severability, and extinguishment analysis. Turbary is also occasionally confused with estovers (the right to take wood), since both supply fuel for a dwelling. They are legally distinct: estovers concerns wood and timber; turbary concerns turf and peat.
Why It Matters in Research
Turbary appears most heavily in English common law sources and in American jurisdictions that received English land law wholesale — particularly early New England and mid-Atlantic states where peat was a viable fuel source. By the late nineteenth century, turbary was already archaic in most American practice; by the twentieth century it had effectively vanished from U.S. litigation. Researchers working in colonial land records, early state conveyancing documents, or English manorial records will encounter it regularly. Those working in modern American property law will rarely see it outside of historical chain-of-title problems.
The key research trap is the appurtenance limitation. Historical sources are inconsistent about whether turbary can be appurtenant to anything other than a house. Rapalje & Lawrence is the most precise on this point, stating flatly that it "can be appurtenant only to a house." Bouvier adds the critical commercial restriction — turf cannot be dug for sale — citing Noy. If a historical document purports to grant turbary appurtenant to a farm generally, or to grant it for commercial purposes, the grant may have been legally defective under the common law rule. This is a live issue in chain-of-title research involving early grants.
Prescription is an equally important research angle. Turbary, like other profits à prendre, could be acquired by long use under the doctrine of prescription. Historical pleadings asserting prescriptive turbary rights may appear in county court records well before the right was formally documented in any deed. Burrill's citation to Kitchin and Cowell points to early modern English sources; researchers needing the full doctrinal history should trace back through those texts.
The term turbaria (the Latinized form) appears in medieval and early modern records alongside the English form. Burrill identifies this variant explicitly. Legal historians working in Latin court records should be alert to this form.
Historical Dictionary Support
The historical dictionaries are in close agreement on the core definition and remarkably compact. All five sources identify turbary as a right to dig turf on another's land. The variation lies in doctrinal detail.
Black's (both editions) provides the shortest treatment, relying on Brown and saying nothing about appurtenancy or commercial restriction. Burrill supplies the Latin lineage (turbaria, from turba) and cites Kitchin and Cowell, grounding the term in its earliest common law authorities. Rapalje & Lawrence offers the most doctrinally complete entry, specifying that turbary may arise by grant or prescription, distinguishing appurtenant from in-gross forms, and noting the restriction to a specific house — with a precise citation to Stephen's Commentaries. Bouvier is the only source to flag the commercial prohibition (no digging for sale), citing Noy.
What the historical dictionaries collectively miss: none engages with American reception or discusses how turbary fared in U.S. jurisdictions. This is a significant gap for American legal historians. The sources also do not address extinguishment — how turbary rights were terminated, merged, or released — a question that arises in any modern title examination touching old grants.
Jurisdictional Note
Turbary is fundamentally an English common law concept. American states that adopted English common law received it as part of that inheritance, but it was rarely litigated in U.S. courts and had no meaningful statutory development. In England and Wales, turbary and other profits à prendre over common land were significantly affected by twentieth-century commons legislation. Researchers working in Irish or Scottish legal history will find related but doctrinally distinct traditions governing peat rights.