Communi Pastura. - Species of Money. - Moris, Maresiis. - Free Rent. - Valid and Sufficient Infeftment. - Debts real and true. - Cum Piscationibus.
Fullerton and Others v. -
Date: 15 December 1699 Case No. No 9.
Sea wreck comes not under the clause cum piscationibus.
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The Lords advised the mutual declarators pursued by Fullerton of that ilk, and Bailie of Monkton, the Laird of Adamston, and others, for the right of gathering the wreck and wair on that coast, mentioned 16th July 1697*. These neighbouring gentlemen having been in use to gather wair for gooding their land, not only on the share opposite and adjacent to their own lands, but also
* Fountainhall, v. 1. p. 786. voce Regalia.
on the lands fronting the barony of Corsby, belonging to Fullarton, as being more plentifully cast out there than upon their own sands; he intents a declarator of the property of all the wreck cast out opposite to his own lands, and that they may desist from leading or gathering any from that place. They raise a counter declarator, not to exclude him, but that they had a cumulative right of carrying away wreck from the lands contraverted, for dunging their grounds, the tenants whereof would not pay so much rent by far if they were deprived of this benefit and servitude; and there was more than sufficiency for both, and it was malacious et in æmulationem vicini to debar them. Monkton and Adamston's charters bore ‘with wreck and wair’ in the tenendas, which the Lords found sufficient to give them right to the wreck on the shore so far as their lands went. But that did not their turn; for there was little in that part; therefore they had been in use to go along the shore, with their carts, till they came to Corsby's rocks, where abundance is to be found. And it was contended, though the clause ‘with wreck and wair’ did not give them the property and right of it, save only of what was ejected near their own lands, yet it was a sufficient title for prescription by possessing immemorially by taking it off the shore, though adjacent to another heritor's land, and that they had de facto possessed so for forty years bygone, they, their author's and tenants; for the wair being inter res communes, which is repute nullius, it therefore belongs to the King; and being inter minora regalia, it may be prescribed by a long possession in another man's ground, even like a communis pastura or a part and pertinent, and needs no other title, as was found in the case of a servitude of thirlage (which this resembles,) 23d July 1675, Kinnaird contra Drummond, 24th June 1665, Montgomery contra Wallace; and 13th January 1680, Brown of Nunton contra the Town of Kirkcudbright, where both parties were continued in the possession of a salmon-fishing, because neither of them had perfected their prescription by possession so as to exclude the other; and the same remedy should take place here*. Yet see the 17th July 1677, Ross contra M'Kenzie*. And though usus maris est omnium communis, yet Skeen de verb. signif. voce Wair, shews that every man has right to gather wair, cockles, and other things cast out upon the shore, till the King appropriate the same, by giving the sole privilege thereof to any of his vassals in their charters, and gives very antient decisions for the same. The Lords did not decide this, though many of them inclined to think that a clause with wreck and wair, was a title sufficient to prescribe it by 40 years possession, even without the bounds of their barony. But they proceeded to a second point, which seemed clearer, viz. if one who was heritor of that ground on the shore where the wair was gathered, had interest to interrupt this prescription, though his charter wanted the clause of wreck and wair; and it was argued he could not, because prescription and interruption being termini corelativi, he who could not prescribe might as little interrupt; but one who wanted that in his charter, could never, by 100 years
* See All the above quoted cases voce Prescription, (What title requisite in the positive prescription.)
possession of wair, prescribe it, because it was sine titulo; ergo he could not interrupt legally, and if he did it, it was only an act of ill neighbourhood; yet the Lords found such an heritor, though wanting ‘wreck and wair’ in his charter, might stop and impede others from prescribing such a right on the shore of his own ground, and that his infeftment in the lands gave him a sufficient interest so to do. Then Monkton recurred to their clause cum piscationibus, as including the gathering of wair, as majus sub minore, as pasturage contains casting of divots, &c. But the Lords found, that these was quite distinct, and that wair came not under the clause cum piscationibus. See Prescription.
