Servitude of Pasturage. - Servitude of Feal and Divot.
Laird of Knockdolian v. Tenants of Parthick
1583.
February. Case No. No. 42.
Effect of a servitude of pasturage as a defence against removing.
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The Laird of Knockdolian warned the tenants of Parthick to flit and remove from the wood thereof. Alleged, That they had the lands of Parthick, as rentallers of the Bishop of Glasgow, whereof the woods were a part and pertinent, in so far as they had common pasturage through the same. Replied, That the wood could not be part and pertinent of the lands by reason of pasturage, quia aliud est servitus et jus pascendi, aliud fundus; and except they alleged themselves to be rentalled in the wood especially, or that the wood was absolutely a part and pertinent of the lands, the allegeance behoved to be repelled. Duplied, That as to the wood, and trees of the same, et quod ad superficiem, they acclaimed no right thereunto; but, as to the servitude, et jus pecoris pascendi, ita inhæret fundo, et fundum sequitur, that they could not remove the one from the other; nam jus servitutis (aut ait Bartol.) totum est in toto, et totum in qualibet parte totius. The Lords, in præsentia Regis, admitted the exception.
Spottiswood, (Servitudes), p. 307.*** Colvil reports this case:
The Laird of Knockdolian warned the tenants of Parthick to flit and remove from the wood of Parthick. It was alleged, That they had the land of Parthick, as rentallers of the Bishop of Glasgow, whereof the wood was a part and pertinent, in so far as they had common pasturage of the wood, and their beasts pastured ay in the wood at their pleasure. It was answered, That they ought not to allege the wood to be part and pertinent of the lands by reason of pasturage, quia aliud est servitus et jus pascendi, aliud fundus; and without they would allege themselves to be rentalled in the wood, and the wood haily to be a part and pertinent of the lands, the allegeance ought to be repelled. To this was answered, That as to the wood, and trees of the same, they acclaimed no right to appertain to them; but, as to the servitude, et jus pecoris pascendi, ita inhæret fundo, et fundum sequitur, that they could not remove from the wood, except they remove from the same; nam jus servitutis (aut ait Bartol.) totum est in toto, et totum in qualibet parte totius; and so, in respect of the said servitude, pecoris pascendi, they could not be decerned to remove from the wood. The Lords, after reasoning in præsentia Regis, admitted the exception, and found, by interlocutor, in respect of the servitude of pasturage, they might not be decerned to flit and remove from the wood.
