Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Sir Robert Dalzell
v.
The Laird of Tinwall

Date: 3 December 1673

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Sir Robert Dalzell, being infeft in the ten-pound land of Achnan, which is a part of the barony of Amisfield, pursues a declarator of property of the moor of Achnan, and that the Laird of Tinwall hath no right thereto, or servitude of pasturage, moss, feal, or divot, therein. Tinwall pursues a declarator of his right of pasturage, moss, feal, and divot, in the said moor of Achnan, as part and pertinent of his lands of Tinwall. Upon both processes, the Lords, before answer, ordained either party to produce such writs and evidents, and to adduce such witnesses as they could, for instructing their right or possession; and gave commission to one of their own number to visit the bounds, and examine witnesses there. Which being reported, Sir Robert Dalzell produces an infeftment of Sir John Charters, of the ten-pound land of Achnan, having a special bounding, which incloses this moor; and Alleged, That thereby, and by the natural situation of the moor, which is in a great part surrounded by his property, and only touched by Tinwall's property at one place by some few pairs of butts; and that it is denominated the moor of Achnan; and that the neighbouring heritors, whose lands touch far more than Tinwall's, pretend no pasturage in it; and that his witnesses have proven that it is part and pertinent of the barony of Amisfield, whereof Tinwall hath no part; and that Tinwall holds of another superior; and any possession of pasturage, peat, or turf, he hath had, was by Amisfield's tolerance, for the yearly payment of three moss-fowls out of each half-merk land. It was answered for Tinwall, That there is no respect to be had to the bounding charter produced by Sir Robert:—1mo. Because it bears to have been granted upon Amisfield's own resignation in his own favours, and doth not proceed upon the resignation of any author obliged in warrandice; who would not have disponed with such a bounding, and warranted the same, if it had not truly been so. But it is easy for any man to make his own bounding as this is. And, by the Act of Parliament 1592, cap. 136, such boundings granted, or to be granted, by the king or any superior, upon the vassal's own resignation, albeit they contain a novodamus, shall not be extended to the prejudice of any third party; but the right of property and commonty shall be determined, as if there were no such bounding mentioned. And there is no deed of property proven: For what is informed, of riving out two or three acres of the moor by Sir Robert's tenants, is but inconsiderable, and lately done: neither doth it import that the moor is holden of another superior than the lands of Tinwall; for whosoever is infeft in lands with common pasturage, &c. may prescribe a right, by uninterrupted possession forty years, in any land; for the pasturage and pertinents of lands can no otherways be constituted or known but by long possession, which will add or abate parts of it; which is much more than pertinents. And as for the tolerance of the moss-fowls paid by Tinwall's tenants to Amisfield:—1mo. Witnesses cannot prove a tolerance, but writ; neither can these witnesses' testimonies prove quo nomine the fowls were paid; for they might have been paid to Amisfield, who was a great man, and a friend to Tinwall, by the tenants, as a gratification; nor doth it appear that Tinwall knew of it. And there is produced a commission by Tinwall to Amisfield, in his absence out of the country, to manage his affairs. And, as to the interruption by Amisfield, the same was only by threatening a tenant of Tinwall's while he was casting of turfs, and doth not relate to the pasturage, and was neither solemn nor reiterate: and, notwithstanding thereof, Tinwall's possession was never stopped, and hath clearly proven possession of pasturage, turf, and moss, for fifty years and above; and though a small interruption might suffice, if the property were clearly Sir Robert's, yet, where it appears to be but a promiscuous commonty, neither party having a clear property, such interruptions, via facti, taking no effect by discontinuing the possession, are not redargued. The Lords found it sufficiently proven, that the property of the moor in question belonged to Sir Robert Dalzell, he being infeft in the ten-pound land of Achnan, and this moor of Achnan lying in the bosom of the land, wherein none but Tinwall claims pasturage. And found, that Tinwall's servitude of pasturage was not constitute by his possession, in regard the same was precarious: the tenants who acquired the possession having paid the moss-fowls; and it being interrupted by the Laird of Amisfield, which several of the witnesses saw: and though they condescend not upon the particular year, yet there being but fifty years, or thereby, of Tinwall's possession of pasturage proven, any time that the late Amisfield was laird, would fall within forty years of Tinwall's possession, the last five years being frequently interrupted by Sir Robert Dalzell.

Vol. II, Page 233.