The vicar, the Rev. George Bayfield Roberts, accordingly obtained the opinion of Sir Walter Phillimore on the subject. It was as follows:—
“As far as I can gather from the facts laid before me, I think that every freeholder and copyholder has a right to turn cattle upon every part of the common field, and that the right is not confined to the particular field or part of the common field in which he holds land.
“This right passes to the tenant or occupier under each freeholder or copyholder. The tenant, or occupier, has it, not in his own right but merely as claiming under his landlord.
“I know of no rule of law which would give this right to farmers as such, and deny it to cottagers as such, if the latter have holdings on which they can keep their beasts during close time. But the right to turn on to Lammas lands (as this common field is) can only be exercised in respect of beasts used in the cultivation or manuring of the holding in respect of which the claim is made (Baylis v. Tyssen-Amhurst, Law Reports 6 Ch. D. p. 500).
“As the cottagers are said to be tenants of the farmers, the latter can make it clear in all future lettings that they do not let with the cottages the right to pasture in the common field.
“(2) The tenant of the Barn farm should keep his land unenclosed during open time, and anyone who has a right to turn on cattle can sue him if he obstructs (Stoneham v. London and Brighton Railway Co., Law Reports 7 Q. B. p. 1), or can pull down the fencing (Arlett v. Ellis, 7 B. & C. p. 346).
“(2a). I do not think it would be wise to pull down a whole fence, or sue for the damage caused by the fence, if substantial and easy openings were made during open time. But there is some authority for saying that the whole fence must be removed (Arlett v. Ellis, [cited above]).
“(3) The only locus standi for the Parish Meeting is, if it has been given by the County Council all the powers of a Parish Council under section 19, sub-section 10, of the Local Government Act, 1894 (56 & 57 Vict. c. 73), to apply to the Board of Agriculture under section 9 of the Commons Act, 1876 (39 & 40 Vict. c. 56).
“This power is given to Parish Councils by section 8, sub-section c, of the Local Government Act, 1894.
“Section 9 of the Commons Act, 1876, enables the Inclosure Commissioners (whose place is now taken by the Board of Agriculture) to give information and direction ‘upon application’ in order to bring about ‘the regulation of Commons’; and for this purpose Lammas lands are included as Commons, as they also came under the Inclosure Acts.