Commonage is often used in an imprecise way to describe common rights of pasture as well as cases where the graziers have acquired ownership in common in undivided shares.
There is a class of property rights which allows one person to enter the land of another to take products of the soil. This is called a profit. It may exist attached to adjoining land or it may exist on a stand-alone basis.
Much so-called common land is subject to rights of this nature in Ireland. The identity of the original owner if any, may be long since lost or unknown.
The profit may be supported by ancillary rights such as are necessary for the reasonable enjoyment of it. Most profits are held in common in Ireland.
There is no common registration system in Ireland, in contrast to England and Wales.
The Curragh of Kildare is one of the best known and most ancient commonages in the country. The Curragh of Kildare Act vests the land in the Department of Defence subject to the rights of commoners to pasture as specified in older legislation. The Curragh is managed under the legislation.
Owner of Commonage
The owner of the land, if traced or known, is entitled to such use of his natural rights of ownership as is reasonable in relation to the commoner’s enjoyment of turbary rights over it. This may include the right to have the bog adequately ditched and drained by the holders in common.
The owner of the land may have the right to reclaim the bog by virtue of his natural rights. This is dependent on the bog suitability for reclamation. It may arise when the bog has been exhausted.
Grants of land to landed estates sometimes included thousands of acres of wasteland. Before the 17th-century settlements, the commons might be shared by adjacent townlands parishes, baronies and even whole counties.
Ascertaining the origin and nature of rights over commonage can sometimes be hampered by the fact that older Public Record Offices records are no longer available, having been destroyed in the Four Courts fire in 1922.
The Land Commission maintained a policy of dividing commonage in order to promote efficiencies. A significant amount of commonage land was divided in western counties until the winding up of the Land Commission in the 1980s.
There was a provision whereby owners might apply to the Land Commission for compulsory partition of commonage rights. The Commission could prepare a scheme for partition, having invited and heard objections of others concerned. Similar powers apply to turbary.
In some cases, the identity of the original owner of the land over which the commonage exists has been lost and can no longer be traced. In some cases, it may have been vested in the Land Commission under some arrangement which can no longer be proved.
Profits of pasture were registered informally, and it was practice to register as a fraction of the commonage. A portion concerned is fictional and does not imply ownership in a particular share.
The Irish Land Commission had a policy of dividing commonage amongst the graziers. Much commonage was divided by the Land Commission.
A scheme of partition could be prepared. Partition involves physically dividing the lands amongst the c-owners so that each person is the full owner of the part. Objections could be made, and the scheme could become final if there were no objections for objections were not upheld.
The result is that several/individual exclusive rights of pasture can be created compulsory as a subdivision of commonage as was possible under the scheme. The relevant legislation remains in force, and the power is now exercised by the Minister for Agriculture.
Over the years, the shareholders on many commonages have decided to divide their commonage between them.
A right of turbary is the right to enter and carry way to produce of a bog for fuel for one’s house. An estover is a right to enter to take wood.
Commons of turbary were once common in Ireland. Turf banks were allocated in the 19th century. The Land Commission took over the roles of landlords in relation to bogs.
In some cases, the Land Commission created rights in common on a holding which were allotted to other tenant purchasers. It also facilitated the licensing of turbary in some cases by way of a trust allocating the rights amongst tenant purchasers.
A right to graze livestock can be established as a property right. This is a so-called profit. It is the right to graze animals.
This profit of pasturage is different to a profit of herbage which is the right to enter and take grass and the profit of vesture, which is the right to take away crops of grass and other herbaceous vegetation.
Commons of pasture are most commonly found in hill farming. The profit can be attached to the land and, most commonly, is.
This means that it is for the benefit of land owned by the holder of the right in the vicinity. A sole or several rights of pasture is unusual. It is much more commonly granted as a contract for grazing or agistment.
Land that is grazed by two or more persons in common is sometimes described as commonage. Commonage refers to a profit held in common and, most commonly, a profit of pasturage. Commonage land is often subject to other sporting rights.
Limits of Grazing
The grazing right is usually limited and may be restricted to a particular species of an animal, usually cattle or sheep. The most common form of pasture is limited to the number of cattle that can be maintained or outwintered on the associated land, where as is commonly the case, the right of commonage is associated with land in the vicinity.
It is limited to the capacity of the land concerned to maintain the stock. Comments of pasture pertinent could be restricted to a specific number of animals.
The commoners have no right to interfere with the land by cutting grass, bushes, trees or otherwise. They may remove obstructions at common law.
A right of commonage may be limited to a particular species of animal, such as cattle or sheep. If it is appurtenant to other land, it may be limited to the requirements of the owners of that land.
Most such rights are limited by the number of cattle that may be maintained on the land benefited. This is referred to as a measure of levancy and couchancy. The dominant tenement does not actually need to be used for out-wintering cattle provided that it could be so used.
Commons of pasture may be limited to a particular number of animals. Ownership in commons is sometimes registered by reference to fractions of the entire commonage. This refers to the number of commoners in most instances. In other cases, it may be divided by the proportion of animals that may use the common.
The right in commonage permits grazing of animals only. There is no right to use or interfere with the land beyond this use. There is a right to remove obstructions and hedges which interfere with access. Various acts of the Irish Parliament in the 18th century restricted the right of commoners from conducting activities beyond grazing.
Where the commoner puts out more animals than he is entitled to, he surcharges the land and his fellow commoners may take legal action to prevent this over-use.
Rights of Owner
The right to pasture includes ancillary easements such as rights of way, rights of place water apparatus and troughs.
The owner of the land is entitled to appropriate so much of the commonage that is not required by the commoners or which is surplus to requirement.
This may entitle him to enclose the part not so required. Common rights of pasture may be extinguished in respect of the same. This is relatively rare in Ireland. The provision is limited and regulated by legislation in England and Wales.
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