KFLCC Kingdom Law 2nd Ed.

225

COMMIXTIO

COMMON

COMMIXTIO. The mixing together or confusion of things, dry or solid, belonging to different owners, as dis tinguished from confusio, which has relation, to liquids. In Scotch law. A gra tuitous loan for use. Ersk. Inst. 3, 1, 20. Closely formed from the Lat. commodatum, for. v.) In the civil law. An action of loan; an action for a thing lent. An action given for the recov ery of a thing loaned, {commodatum,) and not returned to the lender. Inst 3, 15, 2; Id. 4, 1, 16. COMMODATO. In Spanish law. A con tract by which one person lends gratuitous ly to another some object not consumable, to be restored to him in kind at a given pe riod; the same contract as commodatum, (5. v.) COMMODATUM. In the civil law. He who lends to another a thing for a definite time, to be enjoyed and used, under certain conditions, without any pay or reward, la called "commodans;" the person who re ceives the thing is called "commodatarius," and the contract is called "commodatum." It differs from locatio and conductio, in this: that the use of the thing is gratuitous. Dig. 13, 6; Inst 3, 2, 14; Story, Bailm. § 221. Coggs v. Bernard, 2 Ld. Raym. 909; Adams v. Mortgage Co., 82 Miss. 263, 34 South. 482, 17 L. R. A. (N. S.) 138, 100 Am. St. Rep. 633; World's Columbian Exposition Co. v. Repub lic of France, 96 Fed. 693, 38 C. C A. 483. Goods, wares, and merchandise of any kind; movables; arti cles of trade or commerce. Best v. Bauder, 29 How. Prac. (N. Y.) 492; Portland Bank v. Apthorp, 12 Mass. 256; Queen Ins. Co. v. State, 86 Tex. 250, 24 S. W. 397, 22 L. R. A. 483. Commodum ex injuria sua nemo ha bere debet. Jenk. Cent. 161. No person ought to have advantage from his own wrong. COMMON, n. An incorporeal heredita ment which consists in a profit which one man has in connection with one or more others in the land of another. Trustees v. Robinson, 12 Serg. & R.

though there be no deed or instrument to prove the original contract 4 Coke, 37; 1 Crabb, Real Prop. p. 258, § 268. Common, or a right of common, is a right or privilege which several persons have to the pro duce of the lands or waters of another. Thus common of pasture is a right of feeding the beasts of one person on the lands of another; common of estovers is the right a tenant has of taking necessary wood and timber from the woods of the lord for fuel, fencing, etc. Van Rensselaer v. Radcliff, 10 Wend. (N. Y.) 647. The word "common" also denotes an unin closed piece of land set apart for public or municipal purposes, in many cities and vil lages of the'United States. White v. Smith, 37 Mich. 291; Newport v. Taylor, 16 B. Mon. 807; Cincinnati v. White, 6 Pet 435, 8 L. Ed. 452; Cummings v. St. Louis, 90 Mo. 259, 2 S. W. 130; Newell v. Hancock, 67 N. H. 244,-35 Atl. 253; Bath v. Boyd, 23 N. C. 194; State v. McReynolds, 61 Mo. 210. —Common appendant. A right annexed to the possession of arable land, by which the own er is entitled to feed his beasts on the lands of another, usually of the owner of the manor of which the lands entitled to common are a part 2 Bl. Comm. 33; Smith v. Floyd, 18 Barb. (N. Y.) 527; Van Rensselaer v. Radcliff, 10 Wend. (N. Y.) 648.—Common appurtenant. A right of feeding one's beasts on the land of an other, (in common with the owner or with others,) which is founded on a grant or a pre scription which supposes a grant. 1 Crabb, Real Prop. p. 264, § 277. This kind of common arises from no connection of tenure, and is against common right; it may commence by grant within time of memory, or, in othpf words, may be created at the present day; it may be claimed as annexed to any kind of land, and may be claimed for beasts not commonable, as well as those that are. 2 Bl. Comm. 33; Van Rensselaer v. Radcliff, 10 Wend. (N. Y.) 649; Smith v. Floyd, 18 Barb. (N. Y.) 527. —•Common because of vicinage is where the inhabitants of two townships which lie contigu ous to each other have usually intercommoned with one another, the beasts of the one stray ing mutually into the other's fields, without any molestation from either. This is, indeed, only a permissive right, intended to excuse what, in strictness, is a trespass in both, and to prevent a multiplicity of suits, and therefore either township may inclose and bar out the other, though they have intercommoned time out of mind. 2 Bl. Comm. 33; Co. Iitt. 122a.—Com mon in gross, or at large. A species of common which is neither appendant nor appur tenant to land, but is annexed to a man's per son, being granted to him and his heirs by deed; or it may be claimed by prescriptive right, as by a parson of a church or the like corpora tion sole. 2 Bl. Comm. 34. It is a separate in heritance, entirely distinct from any other land ed property, vested in the person to whom the common right belongs. 2 Steph. Comm. 6; Mitchell v. D'Olier, 68 N. J. Law, 375, 53 Atl. 467, 59 L. R. A. 949.—Common of digging. Common of digging, or common in the soil, is the right to take for one's own use part of the soil or minerals in another's land; the most usual subjects of the right are sand, gravel, stones, and clay. It is of a very similar nature to common of estovers and of turbary. Elton, Com. 109.—Common of estovers. A liberty of taking necessary wood for the use or furni ture of a house or farm from off another's es tate, in common with the owner or with others. 2 Bl. Comm. 35. It may be claimed, like com mon of pasture, either by grant or prescription. 2 Steph. Comm. 10; Van Rensselaer v. Rad-