Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Forbes of Ballogy v. Sir Thomas Burnet of Leys
Date: 15 December 1703
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The mutual declarators of property of the Hill of Fair, betwixt Forbes of Ballogy and Sir Thomas Burnet of Leys, were this day advised and decided. Charteris of Kinfauns, as Baron of Lumphanan, was heritor of a great part of this hill, consisting of sundry mountains, glens, and straths nine or ten miles in circuit; he, in 1570, grants a charter of the lands of Ballogy, lying at the foot of the said hill, to Gordon of Abergeldy, Forbes of Ballogy's author by progress, bearing, in the dispositive clause, una cum monte de Fair ad eas terras spectan. and by many subsequent rights the hill of Fair is always expressed therein. Leys, by himself or his vassals, was in possession of sundry lands adjacent to the said hill, feued out by Kinfawns prior to Abergeldy's right, mentioning common pasturage and other privileges in some parts of the said hill particularly bounded; as also, he had right from Cuming of Coulter to the barony of Tilna-boy, contigue to some parts of that hill; and so contended with Ballogy for the property thereof.
The first question was, If these words in Kinfawns's charter 1570 of Ballogy, montem de Fair ad eas spectan. were demonstrative and universal of the whole hill, or rather taxative and restrictive to a proportion effeiring to that part of the hill which fronted Ballogy's lands.
And the Lords found these words behoved to carry all the right to the hill which then stood in Kinfawns's person, whereof he was not denuded by the anterior feus granted by him; and that it conveyed the whole, in so far as his lands surrounded the hill, and were then undisponed.
The next point was, If Sir Thomas, being only superior, had an interest to declare the property where his vassals were not pursuing.
And the Lords found, the feu-rights containing common pasturage et potesta-tem culturandi et manurandi, he, by his dominium directum, had a sufficient interest to preserve these privileges, seeing he was proprietor, against all third parties except only his own vassals, and none else could exclude him but they: and where his rights were defective or unconnected, Louson's charter being so eaten through that it was illegible, and the Laird of Skene's was only a notorial copy, the Lords declared they would advise the probation, to see if such an immemorial possession by forty years was proven as would constitute a right by itself though the titles were never so lame.
