Pasturing of cattle does not infer contravention, unless herding be also libelled.
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The Laird of Shaw pursued James Wilkieson for contravention of lawburrows, through casting of feal and divots upon his proper lands, and pasturing his guids thereupon: The Lords found not the summons relevant for pasturing nakedly, while the pursuer eiked his summons with the words herded and kept the same upon his proper lands, which was found relevant.—It was further alleged, That he did no wrong in casting divots, because he being infeft in the miln and miln-land, land of———, and thereby having pasturage and commonty through the hail lands of the said town, he did no wrong to cast feal and divot upon the ground thereof.—It was answered, That no such privilege nor use of pasturage and commonty could give him liberty to cast divots upon the pursuer's proper said lands; albeit, because he offered him to prove that he did cast them upon his proper arable land, which he tilled and sowed diverse years before the said fact, and which was presently tilled, ready to sow. In respect of the which reply, the Lords rejected the allegeance.
