Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Sir John Seton of Gairleton v. George Seton of Barns
1676, 1677, and 1678.
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1676. July.—Sir John Seaton of Gairleton convenes George Seaton of Barns before the Secret Council, for oppression and riot, in casting down a dry-stone dyke Gairleton was building on the march betwixt them, for taking in a park.
Barnes Alleged, he had done no wrong; because he had encroached upon his land, and was going to enhance, appropriate, and inclose a well, which not only served his beasts, but also made a mill he had to go, with some derived help. 2do,—He had used civil and legal interruptions, per novi operis nuntiatio-nem super damno infecto, quod nondum quidem factum est, sed fieri timetur; (see these titles D. and C.;) and they not desisting nor finding caution, he might stop per viam facti. Yet see Joannes Vandus, libro 2, Quæstio 30; who says, it must be authore prcetore. Vide supra, in the case of Kirknes, No. 475, [June 1676.]
And whereas he pretends he had power, by the 17th Act of Parliament 1669, to keep his dyke straight, to take somewhat of the adjacent neighbour's lands,
It is Answered, 1mo,—That is for encouragement of parking; but this cannot be called a park. 2do,—Since he has appealed to that Act of Parliament he must stand to it. It appoints the same to be done at the sight of the sheriff and not privata authoritate. See the rest in the Informations.
The difference was settled by the mediation of my Lord Dundonald; and it was but reason it should be so: for as Abraham said, in a like contest about a well, to Lot,—“Why should we contend together, for we are brethren.”
Advocates' MS. No. 485, folio 250.
1677.February.—In the declarator pursued by Seton of Barnes Seton of Garleton, anent his right to the aqueduct of his well, &c. Garleton offering to prove it was in his ground, a visitation act and commission Was appointed by Colinton, before whom it was debated. Then, upon a bill given in by Barnes, the Lords named Newbyth and Gosfoord to perambulate and take inspection of the ground, and receive the depositions of witnesses to be adduced by either party, anent the property, and possession past memory, &c. (See the information.) Who met, upon the ground, on the 9th of May, and considered, from point to point, if my Lord Dundonald's decieet-arbitral betwixt them was fulfilled; then examined four witnesses for either party, anent the property of the strand and aqueduct, and Barnes his use of casting the same, &c.
Advocates' MS. No. 553, folio 278.
1677.November 14.—Sir John Seton of Garmilton having charged George Seton of Barnes, upon a decreet of the Sheriff of Hadington, finding that some of Barnes his cattle had come upon an inclosure in Garleton's ground, and therefore fining him in £5 Scots for each beast, conform to the Act, in the Parliament 1661: Of this decreet Barnes raised suspension and reduction, upon iniquity, that the sheriff had refused a visitation, and found it to be an inclosure, upon the testimonies of some of Garmilton's own servants; and that it truly had none of the qualifications required, by the foresaid Act of Parliament, to a privileged inclosure.
The suspension coming first to be called,—Newton repelled the reasons, as not instantly verified, and found the letters orderly proceeded; superseding extract for a month, in which time Barnes might insist in the discussing of his reduction. Before the elapsing of this time, on the 21st of November, we gave in a bill to the Lords, representing, that our reduction was now ready; and, for the speedier dispatch, to verify our reasons, the process led before the sheriff, and the principal depositions of the witnesses would be necessary; therefore craved a warrant against the sheriff-clerk, to send them in.
The desire of this bill the Lords granted. And Barnes having charged him with horning, he transmitted the haill process to Mr Thomas Hay; after which, upon a new bill, we got it remitted to Newton, to compare the probation with the decreet, and with the reasons libelied against it, and, after perusal, to report: Which he having done on the 26th of February 1678, the Lords found the said decreet unjust; and therefore reduced and suspended simpliciter.
We were not expecting so much; but only that the Lords should have turned it to a libel, and appointed a visitation and perambulation on the ground, for cognoscing if it was truly such an inclosure as was meant by the foresaid Act of Parliament. See the copy of the decreet, and reasons against it, apud me. Anent the evoking and transmitting processes in inferior courts, see an instance, supra, num. 623, Sir A. Ramsay, [26th July 1677.]
Advocates' MS. No. 655, folio 307.
1678. February 2.—In the declarator of property, or cognition and perambulation of molestation of the meiths and marches, between Seton of Barns and Seton of Garmilton, (of which vide supra, No. 553,)—the probation and report of the commission being this day advised, and the Lords having considered the report made by the Lords Newbyth and Gosfuird, visitors, adhere to the said report, in so far as they have determined the matter in question. And siclike, having considered Garmilton's oath and deposition, and the testimony of the witnesses adduced, they find, by Garmilton's deposition, That the stone dyke of the park is rightly situated, according to the Earl of Dundonald's decreet-arbitral; and find that Garmilton should make a stone pend in the park-dyke, sufficient to let the water go out, not being of that wide-ness to let in or out beasts. And find that the water-gang, from the park-dyke to Barnes his mill, ought to continue in the old channel; and that the channel wherein it now runs is the old channel; and that the said water-gang, from the ston park, is the march betwixt Barnes' and Garmil-ton's lands; and that the water running therein can suffer no division; and the diversion made by Garilton ought to be restored, so that the water may run entire in the old channel. And find that Garilton's feal-dyke, at the east end thereof, is built, by the space of a pair of boots, on Barnes his land; and that therefore the same ought to be demolished, by the said space of a pair of boots. And find that both Barnes and Garmilton may, at their pleasure, cast the foresaid aqueduct and water-gang; and that, in their casting, they ought to do no prejudice, either of them, to other's lands, or to the feal-dyke built by Garmilton, except in so far as the same is ordained to be demolished; and that the mud and earth, to be cast out by either party, when they dight the aqueduct, ought to be casten, the one half thereof on Barnes his side of the aqueduct, and the other half on Garmilton's side: and decerned accordingly.
On the 6th of June 1678, Garmilton having given in a bill to the Lords, complaining of this decreet, (for it was not then extracted,) and craving the Lords would readvise the probation; and answers being made to it,—The Lords refused the bill, and adhered to their interlocutor.
Advocates' MS. No. 719, folio 318.
[See the subsequent part of the Report of this Case, Dictionary, page 10,476.]
