What Are Common Rights?

We talk a lot about common rights. But what actually are common rights?

First, let’s look at what kind of rights can be common rights. There are generally six recognised rights of common; pasturage, estovers, pannage, piscary, turbary and common in the soil.

Pasturage is the most commonly right exercised today, the right to graze. It’s usually cattle, sheep and ponies that are pastured, however it can also be geese, goats, or any other animal that was pastured locally and has made its way into the rights. Pannage is similar, but it is the right to turn pigs out into the woodland to eat beech mast or acorns. Pannage is only at the time of year when you would find dropped acorns and beech mast.

Estovers is the right to collect underwood and small branches, for firewood or repairing homes, fences and barns. This is little used these days, as is turbary, the right to cut peat for fuel.

Piscary is the right to fish on the common, but the fish can only be taken to feed the commoner’s household, not to be sold. The last, common in the soil, is the right to take stone, sand or gravel to use on the commoner’s land. Again, this is not often used these days.

Common rights under the law are actually property rights. They are mostly attached to a property (actually the hearth), and are rights over a piece of land which you do not own. This is important - as the owner of common land cannot have common rights over it. 

So if Gilbert owns a common, and Edgar lives on a farm next to the common, Edgar can have common rights over Gilbert’s common. Gilbert can’t have common rights over his own land, but he does have owner rights.

So what about Gilbert? What are his rights? Owners of common land usually hold rights to the minerals, sporting (hunting), timber, granting of easements (allowing people to cross the land, now in cars), balance of grazing (whatever grazing is left after all the commoners rights have been accounted for), and maintaining an action for trespass. However, the exercise of these rights cannot take away from the commoner’s rights. 

So Gilbert might want to dig up a quarry on his common. But if that takes away so much land that Edgar can’t graze all of his sheep, then Gilbert cannot dig the quarry. The same applies if Gilbert wants to plant some trees - Edgar can complain and stop the trees being planted.

These rights grew out of a time when the peasants needed to be able to supplement their subsistence level of living. Being able to gather firewood and graze your animals could mean the difference between survival or death. But this doesn’t hold true anymore, and what we need from the land has changed drastically. We should review common rights to update them for what we need now.

The way that common rights are held (attached to a property) means that only individuals or organisations that can afford to buy those properties can have common rights - the local community doesn’t get a say. And while it is true that most commons were always restricted in some way - as an outsider, you couldn’t simply come in and graze your cows - it is also true that common rights were distributed among a much higher percentage of the local community. 

Can we look to the past to see a future where common rights are rights for what communities need from the land now, and held by those communities?

*Source is ‘Our Common Land’ by Paul Clayden, available at Open Spaces Society