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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Sir George Stewart of Grandtully v Mr. John M'Kenzie of Delvin. [1748] 2 Elchies 129 (3 June 1748)
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Subject_1 COMMONTY.
Date: Sir George Stewart of Grandtully
v.
Mr John M'Kenzie of Delvin.
3 June 1748
Case No.No. 7.
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After a hearing in presence on the import of the 38th act 1695, found that where one has a right or servitude of pasturage, on grounds the property of another, promiscuously, or in common with the proprietor, a process of division may lie for dividing, (not the property,) but the superfice, in proportion to their respective interests in the superfice, the property still remaining as it was, and without any præcipuum to the proprietor, and the division to be not in proportion to the parties valuations, but in proportion to their rights of pasturage; and this notwithstanding the judgment in Sir Robert Stewart's case on the preceding page, (No. 4.) which we would not alter, for this seems rather upon the common law than the statute. (See Dict. No. 10. p. 2476.)
The electronic version of the text was provided by the Scottish Council of Law Reporting