Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.

Lord Wigton, and Lockhart of Carnwath,
v.
Proprietors of the Muir of Biggar, and Others, having servitudes upon the said Muir

Date: 12 January 1739

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[Elch., No. 2, Commonty; Kilk., No. 2, ibid.]

This was a question about the division of a commonty, in terms of the statute 1695.

The Lords found, 1mo, That, as there were several proprietors here, a division was competent; and the servitude heritors would be obliged to accept of property instead of their servitudes; whereas, if there had been only one proprietor, no division would be competent, and the servitude heritors would not be obliged to that exchange. See December 23d, Lieut. Robert Stuart contra——. 2do, That the muir was first to be divided among the joint proprietors; and then the rule was that laid down in the latter part of the Act, viz. the valuation of the respective lands or properties of the heritors. 3tio, After that was done, each proprietor was to divide the share allocated to him, with those servitude men who derived their right from him or his authors; and in that case the rule is that laid down in the middle of the Act, viz. the value of the several rights and interests of the persons concerned; that is to say, the Lords were to estimate what the value of the servitude was, and give off a part of the property equal to it. No fourth part was allowed to the proprietor by way of præcipuum, but he was to have all that remained, after deducing the value of the servitude.

N.B.—Several of the Lords had a doubt whether a division could be pursued at the instance of any of those having only servitudes.