Two words crop up repeatedly in any discussion of of common right; they are appendant and appurtenant. You might be forgiven for wondering what the differences between them were when the dictionary says of them both that they ‘appendages’ of some other thing. Yet differences there were and they are considered here.

By the time of Sir Edward Coke clear [legal] differences in meaning had been established and the presumption by historians was that Quia Emptores, having put an end to the creation of free tenants of the manor, also stopped creation of the rights of common that they enjoyed. Thus rights created before Quia Emptores were named appendant rights. The ‘necessity of the thing’ however was so great that rights of common had to continue to be granted and that in order to distinguish between them the term appurtenant was used.

Unfortunately the great tragedy of history is the slaying of a beautiful hypothesis by an ugly fact.^[1] Shortly after the Statute of Quia Emptores was enacted two words first appear for the first time in the records. In the year book of Edward 1 ^[2] , written about the same time [1290] as Quia Emptores a tenant named Adam brought a case against Sir Theobould de Verdoun alleging that Theoubould had taken away his right of common pasture. In the third line of the case the term ‘appurtenaunt’ is used in the sixth line ‘appendaunte’. Whilst this might be thought to indicate a difference between them It is not clear what that difference was in practical terms. Indeed Thomas Scrutton ^[3] concluded “there seems no distinction whatever between the words.”

The case shows however that there was already some legal meaning to the words but it would be another decade before the two terms appear together again in the surviving records. On that occasion Scrutton noted, “the common spoken of…. as  apendaunt is called a few lines lower down ‘appurtenant’ suggesting that the two words were being used interchangeably or at the least if there was any distinction between the two there was at least confusion about what that distinction was. In his examination of the issue Scrutton concluded “If we now look to the early text-writers we shall be perplexed to find that the distinction apparently does not, for them, exist. The only word used to describe the connexion of rights of common with land in Glanvil, Bracton and Fleta ^[4], is ‘pertinere’, ‘pertinentia’”.

These legal text books thus do not use either term although ‘pertinere’ is presumably the root which gives rise to both words but, since pertinere means, ‘relates to’, or ‘belongs to’, we are not much further forward with the distinction. Coke, in the 16th century, thought that earlier judges interpreted the word ‘pertinere’ according to the circumstance of the case as either appendant or appurtenant but gives no indication as to what he thought those circumstances were or what the earlier jurists meant by the terms. His interpretation of what these terms meant seems to be no more than ‘they mean what we later jurists take them to mean’ which is why one Victorian historian thought that the distinction between the two was a “creation of the Elizabethan lawyers”.

It seems therefore that although two different words appear after Quia Emptores there was at first no clear distinction between them and it was not until the 15th century that the distinctions between them were defined. At that time it was decided that appendant rights had been granted initially to free tenants of the manor but that by universal and common usage, at some time [before time immemorial], they became a right claimable by the free tenant of the manor, under the common law and independent of a specific grant.

Quia Emptores stopped the creation of new free tenants of the manor and thus prevented the creation of new rights appendant. Free tenants of the manor were in any case rare and over the centuries declined in number with the result, as Halsbury pointed out, that COPA was not as commonly found as COPR.

Appurtenant rights were held by a commoner on the basis that he or she had the original grant made by the lord or that the right had been acquired by what was known as prescription, [see below]. COPR was entirely local to the manor and since the nature and terms of the grant varied they could never be considered as part of the common law. Since no new appendant rights could be created after 1290 all rights created after this time were appurtenant but a reasonable question is this: if appendant rights were granted only to the free tenant of the manor what rights, if any, did the unfree tenants of the manor have before 1290?

Of the unfree tenants virtually nothing is written which is surprising because from all that has been said previously not only were they the largest group at the time of Domesday but they would remain the largest group for centuries to come. If the free tenants had to have rights of common pasture ‘for the necessity of the thing’ then surely the unfree tenants must have had the same necessity and the same access to the waste?

Blackstone’s view was that in the earliest centuries the villeins were subject entirely to the will and whim of the lord and as such allowing them to use the waste could not be construed as a right. By long use however though they gained a prescriptive right of which more will be said in a later post. In his words, “by a long series of immemorial encroachments on the lord, they [the villeins] at last established a customary right to those estates which before were held absolutely at the lord’s will.”

Which leads us to the question as to why after so many centuries it was felt necessary for a distinction to be made between them. Scrutton has an ingenious if not entirely satisfactory explanation as to why the distinction was between the two types of right was made. Quia Emptores he argued turned the free tenants of the manor into ‘a class of tenants which cannot be increased and which has special rights of common.’ They would naturally be a class in decline whereas the villeins over the same period of time would cease to hold the land entirely at the will of the lord and acquire legal rights of their own. In addition there was a new class of free tenants who were not a part of the manor but who still farmed within its borders. As a result there was a need to distinguish between these three groups ; “What determined the particular names given it is impossible to say ; but, Common Appendant being appropriated to this particular class [the free tenants of the manor], Common Appurtenant comes to include all other rights of common by virtue of the ownership of land, over the manorial commons, whether arising from express grant or from custom”.

The table shows several distinctions between the two types of right and in the next two posts I will consider these in greater detail.

[1] UGLY FACT: The original quote is “The great tragedy of science – the slaying of a beautiful hypothesis by an ugly fact” by Thomas Huxley [Darwin’s Bulldog] in the 19th century.

[2] YEAR BOOK OF EDWARD 1: A kind of summary of legal cases brought before his court for judgement.

[3] THOMAS SCRUTTON: Commons and Common Fields, 1887. Just to show how direct Justice was in those days the case was held before the ‘Kynge’ and his justices. The year book is available from the archive.org and is fascinating for the shear number of cases brought and their complexity.

[4] FLETA: Ranulf de Glanvil  was 12th century, Henry de Bracton 13th century, Fleta an anonymous legal tract also from 13th century.

Categories: In Depth

Tagged as: common-appendant common-appurtenant rights-of-common