Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

The Feuars of Dunnikeir
v.
John Watson their Superior

Date: 23 June 1670

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The Superior having obtained decreet of declarator against his vassals,—finding, after visitation of the ground, and report made, that he having given feus to 180 persons, with the privilege of quarry, clay, and divots of the Moor of Dunnikeir, belonging to him in property, notwithstanding of any servitude foresaid, he might rive out and labour three acres thereof for his own use; yet with this quality, that, if the whole rest of the moor should not prove sufficient for the feuars' building and upholding of their houses, they might have recourse to the same three acres. The feuars, upon this decreet of declarator, did intent a new declarator, at their own instance, against their superior, and some other new feuars, to whom he had granted the same privilege and servitude, concluding against them, that he had no power, in prejudice of the foresaid decreet, to grant any servitudes, which would exhaust the moor, and make their right ineffectual.

It was alleged for the superior, That he having dominium, and being proprietor of the whole moor, and the vassals' having only servitudes, any such right they had, did not take away from him a full liberty to make use of his own property at his pleasure; seeing, in law, dominus potest uti re sua ut libet; and, in all servitudes, as that of communis pastura, and others, there is a reservation in law to the superior, to make use of the ground and property for himself.

The Lords found the defence relevant, and ordained a new visitation: which was most hard, and contrary to their first decreet; finding that the superior having granted servitudes to so many vassals, as the ground could not serve them to take in any new vassals; that he had no power thereafter to take from them the benefit thereof; which was just and consonant to law, they having jus quæsitum, both by the superior's own deed and by a decreet of the Lords.

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