The superior was not, in this case, allowed a præcipuum in the division. See No 2. p. 2462.
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In a process of division of the common muir of Biggar, at the Earl of Wigton's instance against his vassals, some of whom were proprietors, others had only servitudes, wherein the Earl claimed not only a proportion of the muir according to the valuation of his adjacent property lands, but also a præcipuum of a fourth, agreeably to the decision in the case of the division of the muir of Fogo (p. 2462.) the division was not opposed; and if it had, it is believed it would have been sustained, in respect there were common proprietors.
But objection being made to the præcipuum, by those having only servitudes, that there was no foundation for any such præcipuum in the act of Parliament, and that they were entitled to a proportion of the whole commonty sufficient for their servitude, The Lords ‘found the superior not entitled to a præcipuum, and that those having servitudes were entitled to a proportion of the property of the common sufficient for their servitudes.’
Vide December 21st 1739, and February 1st 1740, Sir Robert Stewart of Tillicoulty contra The Feuars of Tillicoultry, No 8. infra.
Kilkerran, (Commonty.) No 2. p. 125.*** Lord Kames mentions the above case in this manner:
In this case, the pursuit was at the instance of a feuar. But in a process of division of the commonty of Biggar, at the Earl of Wigton's instance against his feuars, some of whom were conjunct proprietors of the muir, others had only servitude of pasturage upon it; it was objected against the præcipuum by those who had servitudes, That the rights were derived from the pursuer's predecessors, and were a burden upon his property; that there was no foundation upon the act 1695, for pursuing a division, unless in the case of common property; that the defenders must be allowed to enjoy their servitudes as stipulated to them; that the proprietor was empowered to confine them to ground that might be sufficient for their servitude, but further he could not go. The Lords found the defenders having rights of servitude, are entitled to have a proportion of the commonty set apart to them, equivalent to their right of servitude. See No 40. p. 2287.
