Right of property in a commonty held to depend on the possession and interrup tions of the parties, which admitted to proof before answer.
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Mr John Hay insisting in his declarator, that certain hills libelled were proper part and partinent of his lands libelled, wherein he stands infeft in property; it was alleged for the Town of Peebles, That they do not acknowledge his right of property; but they alleged that they are infeft by King James II. in their burgage lands, with the commonty of Priestshiels, and likewise by King James IV.; and that Queen Mary having directed a Commission of Perambulation to the Sheriff of Edinburgh, he perambulated their commonty, and hath set down meiths and marches thereof, which are expressed in their decreet of perambulation, within which their meiths lie; and that in anno 1621, they have a charter from King James VI. of their burgage and commonty of Priestshiels, comprehending expressly these hills, by virtue whereof they have been in peaceable possession thereof, as their proper commonty, by pasturage, feuel, fail, and divot, and by debarring all others therefrom. The pursuer answered, That their charters were but periculo petentis, the King having formerly granted the right of these lands to his authors; and the decreet of perambulation by the Sheriff of Edinburgh was a non suo judice, the lands not being within the shire; and for any possession they had, it was not constantly over all the year, but only a while about Lammas of late, and was still interrupted by him and his authors; and offered him to prove that they have been in immemorial possession, by tilling, sowing, and all other deeds of property; and that these hills cannot be part of their commonty, there being other heritors' lands interjected between the same and the commonty of Priestshiels; so that the pursuer ought to be preferred, being in libello, and far more pregnant, and especially alleging acts of property by tillage, and the defenders having declarator depending of their commonty; and alleged a practique at the instance of Sir George Kinnaird, where he alleging upon property more pregnantly, was preferred to another in probation, alleging pasturage.
The Lords preferred neither party to probation; but before answer, ordained a perambulation to be, and witnesses adduced, binc inde, anent the situation of the bounds, and either parties possession and interruption.
