Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION. 1684.
The Earl of Aberdeen, Chancellor, v. Sir Alexander Forbes
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February 27.—The Earl of Aberdeen, Chancellor, and Sir Alexander Forbes of Tolquhon their case was decided, anent vice regice, vicinales, publicæ, et privatæ.
The Lords having heard the bill and answers, they sustain Tolquhon the defender's allegeance in these terms, that the defender offers to prove, the way controverted is the high-way directly leading from a burgh-royal, viz. Banff, to a burgh-royal, viz. to Aberdeen, or from Banff to a sea-port directly, and so is the king's high-way: and adhere to the Act as to the other points, allowing to prove that he had prescribed a way for peats, by forty years' possession before interruption; and refused to grant a commission or visitation; but prorogate the diet of reporting the diligence to the 25th March next.
For high-ways consider the 53d Act Parl. 1555; 156th Act 1592; 38th Act 1661, article, Of the High Ways; and 16th Act 1669; Mascard. de Probat. voce, Via; Bart. Cæpolla, de Servitut. tractat.2, cap. 3; and Stair's Institut. tit. 17, Of Servitudes.
It was alleged for the Chancellor,—In thir cases there was only tantum præscriptum quantum possessum, and no more; so that his use and custom of carrying lime that way ought not to give him right to carry peats, (unless he had carried also peats that road forty years,) these being diversa; and it being odious to burden another man's lands with servitudes of high-ways; yet the carrying the one is no more prejudicial than the other. See Craig, feud. lib. 1. dieges. ult. de Regalibus. And, by this interlocutor, no way ought to be reputed a king's high-way, unless both the terminus a quo et ad quem be public; whereas lawyers think it enough though it begin in agro privato, si exitum habet ad viam publicam, vel urbem, vel portum, vel flumen navigabile, or to a kirk, or to a moss. The Chancellor would make Tolquhon to have right only to a foot-way, or an actus at most, for a horseman, but not to be a via for carts or wains, or droves of cattle. Vide 26th March 1684.
Vol. I. Page 274.
March 26.—The Chancellor's action against Sir Alexander Forbes, mentioned 27th February 1684, is called; and though Tolquhon had a diligence running, and the circumduction for not producing it was only conditional till the 22d of March, before which he produced it, and craved a second diligence; yet the Lords rejected it, and advised the probation led by the Chancellor; and declared his lands free (nam unumquodque prædium præsumitur liberum nisi servitus probatur,) of any high-ways for leading of peats; and found Tolquhon had not proven his right of servitude; and therefore assoilyied my Lord Chancellor and his lands.
