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John Kinnaird pursues a declarator of property of a mire or marsh, in the Carse of Gowrie, against the Laird of Fenzies, who had his land on the other side thereof, alleging, that he and his predecessors and authors have been forty years in possession of the mire, as proper part and pertinent of the barony of Rossie, and that the same is severally kend and known by march and meith, and a dike inclosing it from the defender's lands. It was alleged for the defender, That he, his predecessors and authors, these forty years, have been in possession of the said mire, by doing all the deeds libelled by the pursuer, which must give them right at least of common pasturage fail and divot therein; and therefore craves the defence to be found relevant, and admitted to his probation, at least that a cognition might be by an inquest, conform to the act of Parliament, and witnesses led, hinc inde. The pursuer replied, That he offers him to prove, that, by the space of forty years, he, his predecessors and authors, possessed the said mire, not only by the deeds libelled, but also did divide the same in several parcels to each tenant in the barony, and was accordingly possessed by them, which is sufficient to show that they bruiked the same as property, and not a promiscuous commonty. And as for the defender's allegeances of commonty by pasturage, &c. the same ought to be repelled, because the pursuer offers him to prove, that he interrupted and debarred the defender from time to time, which hindered him to acquire a right of commonty by possession and prescription; and he cannot allege that he hath any other right by express infeftment; and therefore, being so much more pregnant than the defender, there ought to be no cognition, but he preferred in probation.
The Lords repelled the defence, in respect of the libel and reply; but granted commission to one of their number to examine witnesses for the pursuer, omni exceptione majores. After which, the defender passing from his compearance, the Lords declared they would give the extract of the interlocutor to the pursuer, and give his libel and reply by way of condescendence and declaration of the manner of the property and of his possession to his probation.
