In dividing a common, the valuation of the dominant tenements was held to be the rule of fixing the proportions, notwithstanding that each had, for a long time, possessed the common pasturage, according to a stated proportion or souming, fixed by a jury of the tenants themselves.
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The Duke, as heritor of the lands of Meddingcoats, brought a division of the common of Hartonhill, against Baillie of Littlegill, as heritor of Mott, &c. And a proof having been allowed of the manner how it had been possessed proindiviso, and that for many years past; by an agreement among the tenants, the number of the bestial was according to a fixed proportion or souming; and when it was found by experience, that the ground was overstocked, a reduction was made; particularly in the 1719, the possessors of the dominant tenements, in order to preserve an equality, resorted to that kind of jury called a birley-court, who adjusted the number of the soums to which each of the dominant tenements was to be restricted.
Pleaded for the Defenders, That the proportion of the interest of each of the dominant tenements in this commonty being fixed by long possession, the pursuer could not be allowed to insist for a division, according to the valuation of the respective lands in the books of supply, as it would be most unjust that he should have a larger share of the commonty after the division, than he ever possest before; that the design of the act 1695, was to give every dominant tenement his share in property distinct from the rest, in order to prevent discord which communion is apt to beget; and however just and expedient the valuation of the dominant tenement may be as a general rule, where things are otherwise equal, yet this could not take place where the interest of the dominant tenement was differently established by the consent of parties; and that the case here was the same as where a moss lies betwixt the lands of different heritors; which, if the portion of each shall appear by boundaries that have been observed immemorially, this will be presumed and held equal to a contract of division in writing betwixt the heritors. And the words of act ought to be taken civiliter et cæteris paribus, and not judaice, as strictly confining judges by the letter of the statute, which upon no consideration can be neglected.
Pleaded for the Duke, That the common fell to be divided according to the valued rent in the common, in the terms of the act which is a rule founded on reason; for the law concerns only common property, where the parties are joint proprietors of the subject to be divided. And as property is a right known in law, importing a right to talk the full use and benefit of the subject that it is capable of; so one is equally proprietor of his lands, whether be constantly make the full use of it or not. For instance, if one has five acres of pasture grounds, and his neighbour the like number of acres of the same quality; suppose the first holds but five cattle and the other ten, the right of property to the first will not thereby be diminished. And therefore, where a large hill is common to several heritors, and it is only proper for pasture, suppose likewise their interest equal, and it happen that one of them uses a part of his property lands in pasture, whereby he has less occasion to pasture on the common than his neighbours, this however will not deprive him of his share of the common property. Hence it is, that where several heritors have an interest in a common, the law has presumed that their interest in proportioned to their valued rent, and upon that account has directed the division to be made by that proportion, without regarding extrinsic circumstances, such as the possession of the severel heritors: Nor is it any objection to this doctrine, that, in a servitude of pasturage, the possession is the rule; for that arises from this consideration, that servitude cannot exceed prædii dominantis utilitatem.
The Lords found the division must proceed according to the valued rent.
Fol. Dic. v. 3. p. 138. C. Home, No 144. p. 247.* * * Kilkerran reports the same case:
The Lords found, That the rule of dividing a commonty was by the valued rent, notwithstanding it was submitted, that by a long usage, the proportion and number of soums allowed to each heritor had been fixed and ascertained, conform whereto they were each year restricted.
