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.
The Town of Culross v. Erskine of Balgowny
Date: 25 November 1704
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The Lords advised the probation led in the mutual declarators of property and commonty raised by the Town of Culross on the one part, and Erskine of Balgowny, and other adjacent heritors, on the other part. The abbot and convent of the monastery of Culross being proprietors of the muir, they, by their charter, disponed to the magistrates and community of the burgh of Culross, the servitude of pasturage in the said muir: after this right, they feu out several parcels of their land cum communi pastura in dicta mora. The Town craving their right to that muir to be declared, as long anterior to any feus given by the commendator and convent to other vassals, and that these subsequent feus could not prejudge or diminish the fund for their pasturage, long before the monks being denuded in their favour:
Alleged for Balgowny, and the other adjacent heritors,—That the prior and convent, as they gave you a servitude in that muir, so at the same time they retained sundry lands in property still in their own hands; so it cannot be presumed but they retained a proportion of the muir effeiring to the lands they kept, notwithstanding the gift they had conferred on the Town; and, having since feued out these lands, they must have the same interest and share in the muir that their author, the convent, had.
The Lords thought the Town's right not exclusive of the other adjacent vassals of the abbacy, but doubted of its extent,—whether it was only a right to graze their beasts with which they laboured their common-good or borough-acres; or if it was leisome for every burgess to put in his cows or sheep therein. And though this last was contended to be the general practice of royal boroughs who had muirs adjacent, yet it did not seem to quadrate with the common principles of law, whereby jus pascendi is not a personal servitude, but a predial, and so there must be a pr œdium dominons to which it serves; and that can be no other but their borough-lands; and if they be allowed to put in what number of beasts they please, it was easy for them so to overburden the muir as wholly to exhaust it, and make it unprofitable to the other vassals of the abbacy, who were of two kinds:—some had a constitution in writ, by a charter and seasine, of a servitude in this muir; others only claimed it as part and pertinent of their lands, and joined prescription to perfect it. And one of the feuars, called Sands, founding on his charter, bearing cum communi pastura in dicta mora, it was
Objected, That, though it expressed the muir, yet it was not in the dispositive clause, but only in the tenendas et habendas; which was but reputed an extension of style, and never conveyed a right, nor was ever repeated or regarded in a service and retour.
Answered,—In charters from the Crown, the tenendas, though never so ample, conferred no right, and oft-times mentioned things that were not in the feu, as mills, fishings, &c. where there was no such thing; but, in rights from subaltern superiors, (who looked more narrowly to what they gave,) the tenendas was as material a clause as any other in the charter, as Craig alleges, and contained their tailyies and substitutions of old.
The Lords observed Sands' right was but upon his own resignation; therefore, before answer, what should be the import of the tenendas, they ordained him to produce the original feu, to see how the muir was given there.
Then the Lords proceeded to advise the testimonies of the witnesses adduced by the heritors, to prove immemorial possession of pasturage, and casting feal and divot; and the probation likewise led by the Town to prove their interrupting.
Balgowny and others proved forty and fifty years' possession: The Town again proved as clearly, That every year they are in use to ride the marches of that muir, and to hound, chase, and drive away all the beasts they find upon it, except their own.
Against the Town's interruptions, it was objected; 1mo. They were only proven by their own burgesses, who were parties interested, and could tine and win in the cause; 2do, Their title was as proprietors of the muir; and that not being proven, their interruptions wanted a warrant, and so were illegal; 3tio, Such a tumultuary cavalcade of driving away all the cattle they met that day in the muir, is but a mockery, and cannot interrupt Balgowny's prescribed possession, unless they can particularly condescend aud prove that some of the goods then driven off were his; for, what if he had none that day in the muir?
Answered,—The parties in this process were the Magistrates, and none of them were adduced as witnesses; and it was undeniable but burgesses were habile witnesses in causa communitatis, else it were impossible to get such matters of fact proven. To the second,—One who interrupts is not obliged to bring his title with him; and if he proceed on a wrong mistaken right, yet, if he have another real title in his person, such as a right of servitude or pasturage, the interruption stands good, and may be ascribed to either. And for the third,—Qui omne dicit is nihil excipit: He who drove all but his own, must be understood to do it ex animo to interrupt the possession of all other pretenders, whether their goods be there at the time or not.
The Lords repelled the objections, and found the interruption proven, without burdening the Town to prove that Balgowny and the other vassals' goods were specially there at the time, and driven off the muir; or that the peats cutted and carried away belonged to them, and were casten by them particularly.
See Stair, 14th November 1662, Nicolson; and 21st June 1667, Watson; for as res sua nemini servit, so that maxim, unaquœque gleba is affected with the servitude, must be understood civiliter, and not strictly et judaice.
