Scottish Court of Session Decisions

Subject_1 PART and PERTINENT.

Janet Crawfurd Lady Dalegles, Elder,
v.
John Crawfurd, now of Dalegles, and Margaret Cunningham, his Mother and Tutrix

Date: 17 November 1714
Case No. No 19.

A moss, with the same name as the lands contiguous, found to be part and pertinent.

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The Lady Dalegles, elder, by her contract of marriage, was infeft in liferent of the one merk land of Nether Fardin alias Rigfoot; and there being a moss called Fardin Moss, which lies betwixt the said land and the one merk land of Dalegles, but contiguous to both, the old Lady contends, That the said Fardin Moss is part and pertinent of Nether Fardin, her jointure lands; and Dalegles, her grandson, contends it to be part and pertinent of the one merk land of Dalegles.

Alleged for the Lady; 1mo, That the very name of Fardin Moss shows that piece of ground to belong to Nether Fardin; 2do, The same appears from the thing itself, since otherwise there would be a very odd inequality betwixt the rents of the two several merk lands, the rent of Dalegles being betwixt 3 and 400 merks, and the rent of Fardin Moss 70 merks, and the remainder of Nether Fardin but 110 merks; so that Dalegles will be above a third more than Nether Fardin, comprehending Fardin Moss, and three times as much as the remainder, wanting Fardin Moss; an inequality too great to be presumed between neighbouring tenements of the same valuation.

Answered to the 1st, That the lands of Nether Fardin are also called Rigfoot, and so denominated in the Lady's contract; whereas there is another room not liferented by her, which is called Over Fardin, also contiguous to the moss in question; so that if any argument can be drawn from the name, it would more naturally apply to the Over Fardin, which still keeps the name of Fardin, than to Nether Fardin, which has also another name. To the 2d, answered, That the disparity betwixt the rooms can be no argument, otherwise the pursuer, to make an equality, might contain not only the moss, but the third more of Dalegles; since, even though the moss were joined to Nether Fardin, by the pursuer's own computation, the lands of Dalegles would be double the rent thereof; and, if two neighbouring merk lands could differ so far, the small addition of the rent of the moss can afford no argument.

The Lords found the lands of Fardin Moss, in controversy, to be part and pertinent of the lands of Nether Fardin alias Rigfoot, wherein the pursuer is infeft in liferent.

For the Old Lady, Stevenson. Alt. Boswell. Clerk, Gibson. Bruce, v. 1. No 24. p. 32.