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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Gilbert Laurie and Robert Hunter v The Duke of Hamilton. [1771] Hailes 400 (7 February 1771) URL: http://www.bailii.org/scot/cases/ScotCS/1771/Hailes010400-0203.html Cite as: [1771] Hailes 400 |
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[1771] Hailes 400
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 COMMONTY.
Subject_3 A right of servitude over a Commonty not such an interest as can authorise a division upon the statute 1695, c. 38.
Date: Gilbert Laurie and Robert Hunter
v.
The Duke of Hamilton
7 February 1771 Click here to view a pdf copy of this documet : PDF Copy
[Faculty Collect. V. 236; Dictionary, Appendix I.; Commonty, No. 2.]
Auchinleck, This is a new claim of the feuars, pretending to a right of having commonties divided between the proprietor and one having a servitude, according to valuation. If they have this right, so also has the proprietor. Hence, if a superior should feu out a house and yard, with the pasturage of so many cows, he might restrict the feuar to a proportion of the common corresponding to the valuation of his house and yard. This would be absurd. The servitude gives a right to pasture, not to plough; and we cannot transform the right, and, by a division, give the servient tenement more than it was originally possessed of or entitled to.
Coalston. They who have a right of servitude cannot force a division. If there were only a right of casting peats, this would not give a right of division. A servitude of pasturage is a servitude just as a right of casting peats, though more ample. It is true that the proprietor may insist to set aside a certain share of the surface, such as may be sufficient for the use of the servitude; but that is not the shape of the present process.
On the 7th February 1771, “The Lords found that the feuars who have only servitudes cannot pursue a division on the Act 1695.”
Act. W. Nairn. Alt. R. M'Queen. Reporter, J. Clerk.
The electronic version of the text was provided by the Scottish Council of Law Reporting
