
    Livingston against Ten Broeck.
    Where the ancient °deed are equivocal, the usage of the parties, deed, is to explain
    So, where the grantor in a deed, executed in 1094, gave to the grantee the privilege of cutting timber, to be used for building on the premises conveyed, from the woods of the grantor* evidence that the grantee, and his heirs, &c. with the knowledge of the grantor, his heirs, &c. had cut wood for the purpose of erecting fences on the premises, is admissible to show the intention of the parties, to the word building to the making of fences, as well as to the erection of houses and barns.
    And, it seems, that at this day, the term building is, in common parlance, applied to the making of fences.
    Common appurtenant be apportioned.
    But where the owner of to which common is appurtenant, purchases part of the land out of which common is to be taken, or the owner of part of the land out of which common is to be taken, purchases the land, or part of the land, to Which the common is appurtenant, the right of common becomes extinct, not only as to the part, but as to the whole.
    THIS was an action of trespass for breaking and entering the plaintiff’s close, in the town of Livingston, in the county of Columbia, and treading down, &c. the grass and corn, tearing up, &c. the earth and soil, cutting and carrying away the hay and grain, cutting and carrying away the trees and underwood, and breaking and destroying part of the fences ; and for breaking and entering the plaintiff’s close, in the town of Gallatin, in the said county of Columbia, and cutting down, &c. the trees and underwood. The defendant pleaded not guilty, with notice, that he would give in evidence, at the trial, that before and at the times the trespasses were supposed to have been committed, the defendant was possessed of, and entitled to, a right and privilege of grazing his cattle in the woods of what is now commonly called the manor of Livingston, not yet appropriated or fenced in; and, also, of cutting and hewing timber for building or firewood, so much as the farm, formerly occupied by one Jacob Vosburgh, should have occasion for, and the half, or moiety, of a small plain, or flat, of ten or twelve morgans, (acres ;) and the supposed trespasses were committed on premises situated in the said manor, by virtue of the said privilege. And that the defendant would further give in evidence, that he, and his ancestors, had, from time immemorial, been possessed of and enjoyed the right of grazing their cattle in the woods of the manor of Livingston, not then, nor yet appropriated or fenced in ; and of cutting and hewing timber, &c. as much as the farm, formerly occupied by J. Vosburgh, and since in the possession of the defendant and his ancestors, should have occasion for; and the half, or moiety, of a small plain, &c. The cause was tried before the honourable James Kent, then Chief Justice, at the Columbia circuit, in October, 1813.
    At the trial, the plaintiff gave in evidence, that one Christian Colepaugh, in the winter of 1812, by the direction of the defendant, made 1,000 rails, and cut 400 stakes, in a wood lot in the manor of Livingston, which had been lately laid out as a wood lot for the plaintiff, as one of the proprietors of the manor; that the lot was part of the common of the manor, and that the rails and stakes so cut were carried on the defendant’s farm and there used.
    The defendant gave in evidence, a deed, dated the 29th off 
      October, 1694, from Robert Livingston to Derick Wessels, in fee, for a certain piece of land in the manor of Livingston, containing “ five and twenty hundred men’s treads, or paces squarealso, “ the half, or moiety, of a small plain, or flat, which lies, &c. being ten or twelve morgan at the mostand, also, six hundred acres of woodland, &c.; and he did “ further grant unto the said Derick Wessels and his heirs forever, the privilege of grazing of his cattle in the woods of the said Livingston, in the manor, not yet appro-, printed or fenced in; and, also, for cutting and hewing of timber for building or firewood, so much as the said farm, now occupied by Jacob Vosburghf (being the premises first granted and described in the deed,) “ shall have occasion for; and the said half, or moiety, of the small plain, or flat, of ten or twelve morgan, and no more; and the said Robert Livingston reserved fo himself, and his heirs and assigns forever, the cutting and hewing of timber, and grazing, in the five and twenty hundred treads, or men’s paces, thatjs to say, in the woods not appropriated or fenced in, in the five and twenty hundred treads square, then conveyed to the said Wessels, together with,” &c. The defendant deduced a regular title to himself from the grantee, D Wessels.
    
    The Chief Justice ruled, that the words in the grant, giving the grantee the right of cutting timber for building or firewood, did not extend to give him a right of cutting timber for building fences on the premises; whereupon, the defendant’s counsel offered to prove, that the defendant and his ancestors, owning and occupying the farm formerly occupied by J. Vosburgh, had, with the knowledge of the grantor, and of his heirs and devisees, and without molestation, exercised the right of cutting and carrying away from the commons, in the manor of Livingston, timber for building and supporting the fences, on the premises conveyed, for as long time back as the memory of man can reach.
    The evidence was objected to, and was over-ruled by the Chief Justice, who held, that it was inadmissible, either as explanatory of the intention of the parties to the original deed, and their representatives, or as establishing a prescriptive right* or in any way supporting the defence set up , 
      by the defendant; to which opinion the defendant’s counsel excepted.
    The plaintiff gave in evidence a deed, dated May 4th, 1796, from the defendant and his wife to Henry Livingston, in fee, for 446 acres, three roods, and thirty-four perches, of land : a lease from year to year, purporting to be executed for the purpose of vesting the possession in the lessees, to enable them to receive a release, dated the 30th of May, 1796, from Derick Wessels Ten Broeck, the father and devisor of the defendant, and Dorothy his wife, to Seth Curtis and Thomas Brodhead, for nine acres and seventeen perches; and a deed, dated the 24th of February, 1802, from John Sanders and Albutina his wife, who was a daughter and devisee of D. W. Ten Broeck, to Thomas Brodhead,-in fee, for twenty-nine acres, three roods, and twenty perches. The defendant’s counsel objected to the reading these deeds, but the Chief Justice allowed them tobe given in evidence, and charged the jury that those deeds operated in law, as an ex-tinguishment of all right of common to which the defendant might otherwise have been entitled under the original deed. A verdict was rendered for the plaintiff, and the defendant tenderéd a bill of exceptions to the opinion of the Chief Justice.
    
      Van Burén, (Attorney General,) for the defendant.
    1. The right of common was not extinguished by the severance of the premises. It is common appurtenant, and may be apportioned by alienation of a part of the land to which the common is appurtenant. (Co. Litt. Villenage, 122. a. Sacheverill v. Porter, Cro. Car. 482. Wyat Wild’s Case, 8 Co. 156, 157. Tyrringham's Case, 4 Co. 36,37, 38. Vicars v. Langhan, Hob. 235. Noy’s Rep. 30. 2 F. N. B., 180, 181. (N).)
    3. The construction of the deed ought to be favourable, so as to prevent a forfeiture ; ut res magis valeat quam pe■reat. (Corbet v. Stone, T. Raym. 142. 3 Newman’s Convey. 221. 2 Roll. Abr. 56.)
    3. Parol evidence of usage, nr the practical construction given to the words of the grant, “ timber for building and jfirewood,” by the acts of the parties, ought to have been ad-mi tied. Coke says, optimus interpres rerum usus ; that where franchises are claimed under an ancient charter, and the words are obscure, and the party claiming expounds them, and shows a continual possession according to that exposition, the inquiry always is, as to the possession and use. (2 Inst. 282.) It is an established rule, that where the language of ancient deeds and charters is obscure, or their construction doubtful, resort may be had to usage, and the uniform practice under the instrument; for such continued usage is the best practical exposition of the meaning of the parties. (3 Atk. 576. Cowp. 819. 3 Term Rep. 279. 288. note. "4 Term Rep. 810. 6 Term Rep. 388. 4 East, 327. 7 East, 199.)
    
      James Strong and E. Williams, contra.
    The parol evidence offered was not to any matter pleaded, or contained in any notice, and was, therefore, inadmissible. The fact of trespass is not denied. The defendant prescribes for a right of common. There is much confusion in the books, as to common appendant and common appurtenant. The distinction seems to be, that common appendant is attached to arable land only, and is inseparably incident to the grant. It arises from necessity, and is founded on common right. Common appurtenant is against common right, and must be created by deed or grant, and may be prescribed for.
    
      [Van Burén. I agree that the right claimed here, is of common appurtenant.]
    
    The defendant relies on the deed of 1694, and the right conveyed by it. The defendant did not show that the rails, or common estovers, were carried on to the Vosburgh farm. After he has established his right, he must show, affirmatively, that the rails were necessary for the occasions of that farm; for the right prescribed for, is, “ for cutting and hewing of timber for building or firewood, so much as the said farm now occupied by Jacob Vosburgh, shall have occasion /or.” The matter set up in justification must be as clearly and distinctly ' proved, as if the defendant was a plaintiff suing to establish the right. (Van Sickler v. Jacobs, 14 Johns. Rep. 434.)
    
      Again ; a man cannot prescribe for common appurtenant 5o a farm, because it is uncertain what a farm consists of, whether of 10 acres or 100 acres. (5 Vin. Mr. 33. Common, (K.) pi 14.) unless he shows that it was antientiarm or arable land. The evidence showed this to be wood land. This is a prescription in person, not in a que estate. “ All prescription must be either in a man or his ancestors, or in a man and those whose estate he hath(2 Bl. Comm. 264. 1 Sound. 349. note 10. 346. n. 2.) and whoever claims any common in right of & freehold estate, must prescribe for it in a que estate. The defendant has not averred a seisin in fee of the Vosburgh farm, nor is there any proof of such seisin. It does not appear, whether he was in possession, or was seised of the farm. It is admitted, that the 1,500 acres, and Vosburgh’s farm, were not the-, same. The defendant ought to set out his common specially. (17 Vin. Abr. Prescription, (Y.) pi. 28. pl. 12.)
    It is said, that by a just construction of the words of the deed, the defendant was entitled to the estovers which he claims. “ Timber for building,” does not, in the legal signification of the words, mean timber to make a fence ; nor have they that meaning in common parlance. The grantor does not use the technical word estovers. (2 Bl. Comm. 35.) House-bote may include fire-bote, but not hedge-bote or fence-bote. The words of the grant are peculiar; “ cutting and hewing of timber for building or firewood.” Hewing of timber can only apply to such as is to be used in building. These grants of common of estovers are to be construed strictly. As where a person has common of estovers, annexed to his house, and he makes alterations and additions to the house, he cannot employ any of these estovers in the parts newly added. So, if the owner of the soil cuts down part of the wood, the person entitled to estovers cannot take any part of the timber cut down. (4 Co. Rep. 87. a. Cro.Eliz. 820. Plowd. 381. Cruise’s Dig. tit. 23. sec. 28. 30.) There could have been no reason or occasion, in this case, for granting fence-bote, for there was an abundant supply for fences in the land granted, which was nil wood, except a small possession. To let in parol evidence, there must be some ambiguity ; and there is nothing ambiguous in the words of this deed.
    Again; common of estovers, or fence-bote, or fire-bote, cannot be apportioned, unless such apportionment be for the benefit of the one party, and without injury to the other. The law will not, by its own operation, work an injury to any person; as, where it casts a descent, it does not extinguish the common. An apportionment, in this case, would produce manifest injury to the grantor. Suppose this farm* divided into 1,500 parts or possessions, and that all the wood to sustain them is to be taken from the commons, would it not be greatly surcharged, to the injury of the landlord ? (Co. Litt. 164. b. Parceners. Co. Litt. 165. b. 4 Co. 38. 3 Vin. Abr. Apportion.(A.) pi. 3. note (B.) pi. 21.) There is not. a case to be found where the common of estovers of housebote, or hedge-bote, is divisible. The cases mentioned by Coke, (Co. Lilt. 122. a. Finer Apport. (B.) 21. 4 Co. 37. b.) are of common of pasture, which may be admeasured and enjoyed in parcels. (5 Vin. Abr. 12. Common C. a.) In Bagshazv v. Eyre, (Cro. Eliz. 570.) it was decided, that if A. has a house with common appurtenant in the lands of B., and conveys it to B., the common is extinguished, by the unity of possession. (Brook. Abr. Ex ting. pi. 19). Now, here was a sale from the defendant, in right of his wife, in fee, to H. Livingston, of 446 acres, with full covenants. (5 Vin. Abr. Extinguishment, (E. a.) pi. 12. 16. 18. 28.) The subject out of which the estovers or commons is to be taken, cannot be united to the estate to which the right of common is attached. Such a union extinguishes the right of common.
    
      an Buren, in reply.
    The bill of exceptions brings up those points only, to which exceptions were taken. The Chief Justice having ruled, that the deeds from the defendant operated to extinguish all right of common, it would have been useless for the defendant to have offered any further evidence. The real question is, whether the right of common has been extinguished? The cases which have been cited to show the affirmative, are not analogous. The law always seeks to avoid the forfeiture of a right. The deed or grant, contains no covenant against alienation. The defendant, or his ancestor, did no more than what they had a right to do. The settlement of the country could never be effected without the power of alienation; and if the principle contended for by the counsel for the plaintiff was to prevail, it would destroy all rights of common. Where a defendant has a right of common in certain premises, and releases a part of the waste or common, he thereby surcharges the common, which is injurious, and, therefore, the law says, by selling a part, he releases the whole right of common; but the union of the land out of which the common is to issue, with a part of the land to which the right of common is attached, can work no injury to the grantor. By uniting the 400 acres to the great lot out of which the common was to issue, the right of common, as to the 400 acres, is extinguished, but that can be no injury to ihe grantor.
   Spencer, J. delivered the opinion of the Court.

The bill of exceptions in this case presents two questions : 1st, whether the deed from Robert Livingston of the 29th of October, 1694, to Derrick Wessels, granted the right of cutting and carrying away rails for fencing, from the commons of the manor of Livingston ?

2d. Whether that right, if it once existed, has not been extinguished 1

The deed of the 29th of October, 1694, conveys a large tract of land, and gives the right of common of pasture in the woods of the grantor, in the manor of Livingston, unappropriated as regards the whole tract, and contains this clause ; “ and also, for cutting and hewing of timber for building or firewood, so much as the said farm, now occupied by Jacob Vosburgh, shall have occasion for, and the said half or moiety of the small plain or flat of ten or twelve morgan, and no more,” reserving to the grantor, bis heirs and assigns for ever, the cutting and hewing of timber in the five and twenty hundred treads, or men’s paces, in the woods not appropriated or fenced in.^ Thus it appears^ that the right of cutting and hewing of timber for building or firewood, was restricted to the farm then occupied by Jacob Vosburgh, and the half of the small plain ; the deed having conveyed a much larger tract of land.

The bill of exceptions states, that the defendant deduced the right and title of Derrick (Vessels, to all and singular the said premises, to himself; and, it appears, generally, that in the winter of 1812, one Christian Colespaugh made 1,000 rails, and cut 400 stakes in a wood lot, in the manor of Livingston, which had lately been laid out as a wood lot for the plaintiff, as one of the proprietors of the said manor, which lot was part of the commons of the manor, and that the rails and stakes so cut, were carried on to the defendant’s farm, and there used ; and it is proved, by the written directions of the defendant, that the rails and stakes so brought on to his farm, were cut under his authority. There is a total absence of proof how large the Vosburgh farm is, or that the rails were necessary for that farm, or that they were used thereon.

The Chief Justice decided, that the right of cutting and hewing of timber for building or firewood, ^contained in the deed of the 29th of October, 1694, did not give the privilege, or right of cutting or hewing timber for building fences on the said premises. The defendant’s counsel then offered to prove, that the defendant and his ancestors, owning and occupying the farm formerly occupied by Jacob Vosburgh, had, with the knowledge of the said Robert, and his heirs and devisees, without molestation, exercised the right of cutting and carrying away out of the commons in the manor of Livingston, timber for building and supporting the fences on the said farm, for as long time back as the memory of man can reach. This evidence being objected to, was overruled.

It is to be kept in mind, that the grant of common is under a very ancient dee£; and if the words are equivocal, it appears to me, that the evidence of usage ought to have been admitted.

The right of cutting and hewing of timber for building, extends to the cutting every kind of timber for every species of building. Even at this day, I apprehend, that, in common parlance, there is rail timber; and the making of fences is not unfrequently called building fences. It is impossible to say, at this day, what was the precise meaning of the parties to the deed. The sense in which their words would have been understood, when the deed was given, would control and govern their contract. To my mind, the words of the grant are so equivocal, that usage under it ought to have been admitted, as the best expositor of the intention of the parties. I perfectly agree, that if the words of a deed are clear and precise, leaving no doubt of the intention of parties, usage will not aid in the exposition, and ought not to be admitted.

Lord Coke, in his 2d Institute, 282. says, that where any franchise is claimed before the justices in Eyre, “ by an ancient charter, though it had express words for the franchises claimed; or if the words were general, and a continual possession pleaded of the franchise; or if the claim was by old and obscure words, and the party in pleading, and expounding them to the court, and averring continual possession according to that exposition; the entry was ever, inquiratur supra possessionem,” &c. to which he adds, “ I have observed divers records of those Eyres, agreeable to that old rule, optimus interpres rerum «sms.”

Lord Hardwicke says, (3 Atk. 577.) in the construction of ancient grants and deeds, there is no better way of construing them than by usage ; and cotemporanea expositio is the best way to go by.”

Lord Mansfield, in Cook v. Booth, (Cowper, 822. See also, 3 Term Rep. in notes, 291 ; Gape v. Handley.) adopted this principle. Lord Kenyon, and Mr. Justice Buller, both admitted the same rule. (Blankley r. Winstanley, 3 Term Rep. 286. 288 ; The King v. Bellinger, 4 Term Rep. 821.) And Lord Ellenborough, in The King r. Osbourne, (4 East, 335, 336.,) considers it as established on the best authorities in the law, that contemporaneous, and subsequently continuing usage may be resorted to for the construction of a charter. Peake, in his Treatise on Evidence, (119,120.) and Phillips, in his excellent work, (419. &c.) both consider usage as admissible to explain an ancient charter or grant.

If we could suppose the case, that a witness living at the time of the grant, and of mature age. had been offered on this trial, to prove what was meant by the words, 14 cutting. and hewing timber for building,” and whether building then meant making of .fences, as well as houses and barns, I Presume there could be no objection to the testimony, for the meaning of words, and their understanding of them in pais, is certainly admissible proof.. If a witness would be admitted, under these circumstances, and if, from the lapse of time, we are not to expect any proof of that kind, the next best evidence arises from the acts of the parties, which go to demonstrate the construction they put on the grant, and the sense in which they understood the words used. In the location of grants, when the words are equivocal, possession, xvhich stands on the same footing as usage, has always been resorted to in explanation of the intent of the parties, and to give a construction to the location of the grant. It appears to me, therefore, that on authority, and principle also, the evidence of usage ought to have been admitted; and we all agree, that the evidence ought to have been heard.

2. Has this right of fence-bole been extinguished ? It appears, that Derrick Wessels Ten Broeck, under whom the defendant claims as devisee, in 1796, conveyed between 9 and 10 acres of land to Seth Curtis, and Thomas Brodhead ; and that in May of 1796, the defendant conveyed 446 acres of land to Henry Livingston, and in 1802, John Saunders and his wife conveyed to Thomas Brodhead about 29 acres of land. There is no location of these deeds, and it is asserted, on the one side, that they convey a part of the Vosburgh farm, and at all events, a part of the tract to which common xvas reserved in the deed of 1694, to Robert Livingston. It is further insisted, that the defendant has not shown that he owns the Vosburgh farm, and also, that the conveyance to Henry Livingston, who is one of the heirs of Robert Livingston, operates as an extinguishment of the right to fence-bote, if it ever existed under the deed of 1694.

It is too late for the plaintiff to question the defendant’s right to the Vosburgh farm, for, as I understand the case, it admits, that the written testimony introduced by the defendant, deduced the right and title of Derrick Wessels to all and singular the said premises, (referring to the deed from Robert Livingston to Derrick Wessels) to the defendant. Evidence might have been given, with propriety, to show the extent of the Vosburgh farm, in order to prove that the rails cut were necessary for that farm ; but the construction adopted by the judge, of the deed of 1694, precluded the necessity of that inquiry. Inasmuch, then, as the plaintiff has not located the deeds produced in evidence, from the defendant and his devisor, we cannot say that they embrace any part of the Vosburgh farm; and if it be conceded, that they embrace part of the other land conveyed by the deed of 1694, and that Henry Livingston, as one of the heirs of that grantor, had a right of common by the reservation in that deed, it could not extend to the Vosburgh farm. I perceive nothing which can work an extinguishment as to the commons to which the Vosburgh farm had a right; for the reservation is expressly confined to the woods not appropriated or fenced in. The Vosburgh farm was an appropriation, and, therefore, would be excluded from the right reserved.

I do not see how the question of extinguishment could arise, upon the facts detailed in the case, and must conclude, that there ought to be a new trial.

The case is, undoubtedly, very imperfect,, and if a new trial is to be had, it may be desirable to both parties, for the court to express an opinion upon assumed facts. Indeed, until 1 had given the case a more critical examination, I had Supposed it presented this question; whether a conveyance by the defendant, to Henry Livingston, who was admitted to be the owner of part of the manor of Livingston, subject to common to the proprietor of the Vosburgh farm, of a part of the Vosburgh farm, produced an extinguishment of the whole right of common for the Vosburgh farm; and this involved the inquiry into the nature of this common, and whether there can be an apportionment of it. I proceed, therefore, to examine these points.

The common claimed by the defendant, is admitted to be common appurtenant, and it is gross; being fot'so much timber for building and firewood, as the farm occupied by Vosburgh shall have occasion for. Can such common be apportioned ?

Upon a careful examination of all the cases, I am satisfy ed, that common appurtenant can be apportioned. (Co. Litt. 122. b. Cro.Car. 482. 8 Co. 156. Hobart, 235. 6 Pin. 17. pi. 19.)

The next inquiry is, whether this sale to H: Livingston extinguished the defendant’s right to common, admitting that he conveyed to him part of the Vosburgh farm?

The principle which runs through the cases, is this : that the land which gives a right of common to the owner, shall not be so alienated as to increase the charge or burden on the land out of which common is to be taken ; and that, when the right is extinguished or gone, as to a portion of the land entitled to common, it is extinct as to the whole ; for in such case, common appurtenant cannot be extinct in part, and be in esse for part, by the act of the parties. Tyrringham?s case, (4 Co. 36.) is a very leading case, and it only requires to be understood to command respect. Tyrringham was seised of a house, 44 acres of land, 7 acres of meadow, and 2 apres of pasture, to which house and lands a right of commons was attached, of pasture for oxen, &c. as well in 30 acres of the same town, on which John Pickering was seised, as in 40 acres of which Boniface Pickering was seised. Boniface Pickering being seised of the 40 acres, purchased to him and his heirs, the 44 acres of land, 7 acres of meadow, and 2 of pasture, which Tyrringham owned, to which the right of common belonged ; and thus became seised, by uniting in himself the lands entitled to common, and 40 acres subject to common; and he demised the lands entitled to common to one Pheasant, who put into the 30 acres belonging to John Pickering, two cows, to use the said common. For driving out these cows, an action of trespass was brought, and it was resolved, that the common was appurtenant; and it was adjudged, that by the said purchase, all the common was extinct, on the ground, that common appurtenant could not be extinct in part, and in esse in part, by the act of the parties; but the court distinguished between common appendant, and common ap'purtenant.

In Wild’s Case, (8 Co. 156.) Tyrringham?s case was recognized to be law, and the distinction was taken between common appendant, and common appurtenant. (See also, 5 Fin. 17. pi. 19.)

If, then, it shall be proved, that H. Livingston is seised of part of the land subject to common; and has purchased of the defendant part of the land entitled to common, the same consequence results. There would be an extinguishment of the right of common in part/by the unity of title in one and the same person, to part of the land entitled to common, and a part of the land out of which common is to be taken, and then the principle applies, that if common appurtenant be extinct in part, it is entirely gone.

I cannot find that the doctrine of Tyrringham’s case has ever been overruled; on the contrary, the principle on which it is grounded has been recognized. Thus, in Rotherham v. Green, (Cro. Eliz. 593.) Rampton’s case was recognized as good law, in which it was adjudged, that where one having common in a great field, wherein many more had land, purchased an acre from one of them, the common was extinct. All the cases in which it is held, that common shall be extinct, by alienating part of the land entitled to common, or by purchasing the lands in which common is to be taken, proceed on this principle, that injustice shall not be done to the owners of land subject to common.

In the case under consideration, if Henry Livingston acquired a right by purchasing part of the Vosburgh farm, to take common of hedge-bote, his interest would induce him not to take it out of his own land, subject to common ; and thus an additional burthen might be thrown on the owners of the other part of the lands out of which common was to be taken.

Had the defendant sold part of the Vosburgh farm to a stranger, this could not have happened, and in such case there might be an apportionment.

The case, therefore, wholly turns on the fact, whether H. Livingston purchased any part of the Vosburgh farm ? If he did, the defendant’s right is wholly extinct; if he did not, then it is not extinguished.

There must be a new trial, with costs, to abide the evenL

New trial granted.  