STATUTE LAW REVISION: SIXTEENTH ... - Law Commission

that each of these persons pastured a limited number of cattle. The gate was
the gait or going of the cattle. For the sake of simplicity and because the Act
provides for the extinction of all these rights we shall say no more about rights
other than rights of common. Suffice it to say for the present that common land,
so called, is private land, and that inclosure means the extinction of common
rights.
6.4 Also relevant in the present context is the procedure for inclosure under the
enactments proposed for repeal. As had generally been the practice under the
numerous private Acts of inclosure which had preceded the public general Act of
1845, the carrying out of inclosure under the public general Acts of 1845 to 1868
was entrusted to inclosure commissioners. 5 The method, long disused, may be
summarised as follows. An application on a particular form was made to the
commissioners and signed by the owners of one third in value of the interests in
the land. Unless the project was manifestly objectionable an assistant
commissioner was then sent down to inspect the land, to inquire into the
accuracy of the statements and to hold a meeting to hear any objections to the
proposals. On his report a provisional order for inclosure would be issued setting
out certain conditions as to allotments of land for exercise or recreation and for
the labouring poor, specifying the proportion due to the lord of the manor and the
means to be taken for the protection of public rights, and determining the
ownership of minerals. By the 1845 Act active steps could then be taken in
certain cases (some however requiring Parliamentary sanction) but by the 1852
Act the need for such sanction was applied to all cases. The provisional act or
order was then deposited in the parish and an assistant commissioner sent
down to hold a meeting for obtaining assents and dissents. On the assent of two
thirds a special Act was obtained. A valuer was then elected, who had to value,
to determine claims, and to lay out allotments, and to make a report, his
decisions being subject to the commissioners, and in the case of claims, to the
courts by way of appeal. After this a meeting was held by the assistant
commissioner to hear objections to the report, and these being disposed of, the
report was embodied in an award signed by the valuer, which on confirmation by
the commissioners, became final. 6
40 Rectification of failed and defective inclosures under previous Acts
6.1 The Inclosure Act 1845 also had a number of secondary purposes other than
inclosure under that Act. Proposed for repeal, as impracticable now, are the
provisions in sections 152 to 157 of the Act which were to provide, in the words
of the Act’s title and preamble:
“... remedies for defective or incomplete execution and for the nonexecution
of powers created by general and local Acts of Inclosure and to
authorise the revival of such powers in certain cases.”
5 The functions of the inclosure commissioners are now vested regarding England in the
Secretary of State for the Environment, Transport and the Regions (the Secretary of State
for Wales in the case of Wales).
6 Op. cit. 91.
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