16 Johns. 30 | N.Y. Sup. Ct. | 1819
(Touchs. 238.) says, that if a common in gross, and without number, be granted to a man and his heirs, it seems this is not grantable over to another. This opinion maybe-questioned; but the decision in the case of Lord Mountjoy is undoubted law: for the right to cut wood and
Coke (Co. Lilt. 165. a.) puts the case, by inquiring what shall become of their inheritances when they descend to coparceners. He says, it appearetb, that regularly the eldest shall have the reasonable estovers, common of pis-chary corrodies uncertain, Szc., and the rest shall have a contribution, that is, an allowance of the value in some other of the inheritance. He inquires, if the ancestor left no inheritance, to give any thing in allowance, what contribution or recompence shall the younger coparceners have ? He answers, that if the common be uncertain, then one coparcener shall have it for a time, and the other for the like time, whereby no prejudice can grow to the owner of the soil.
This, however, I apprehend, would not be the case here; since our statute of descents ; for it has been already shown, that the right devised to Nelly Abeel is an incorporeal hereditament, and both species of hereditaments must descend to all the coparceners; so that, if it appeared in this case, which it does not, that the common ancestor, Nelly Abeel, transmitted other inheritances ; still our statute has produced an alteration in the common law, that the eldest shall take the whole common, making a recompence to the younger coparceners.
The consequence is, that Anthony Abeel could not, alone, aliene this right of common, and the defendant could acquire no right, to enter and cut wood on the lands subject to the right of common; he is, therefore, a trespasser, and the plaintiff is entitled to recover.
Judgment for the plaintiff.