Scottish Court of Session Decisions

Subject_1 COMMONTY.

Earl of Wigton and Carnwath
v.
Feuars

1739, Feb. 1.
Case No. No. 2.

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A Baron feuing certain parts of his Barony with parts and pertinents, by virtue whereof the feuars possessed pasturage feal and divot in the common of the Barony upwards of 40 years, and the Baron himself had no other sort of possession of the common, nor was it capable of any other. The question was, Whether the feuars' right to the common was a common property or only a servitude? It carried—property, and it was observed, that had the question occurred next year after the feus, it must have been a common property or nothing, because there could be no servitude while the Baron remained proprietor of the land, and the 40 years possession was only considered evidence at and before the feu; and therefore refused a reclaiming bill for the Baron without answers, except as to one vassal Nisbet, whose feu contained only privilege of pasturage.