Servitude of Pasturage. - Servitude of Feal and Divot.
Sir George Stewart of Grandtully v. Mackenzie
Date: 8 June 1748 Case No. No. 44.
Where a party has the property, and another a servitude of pasturage, is a division competent?
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The muir of Thorn belongs partly in property to Sir George Stewart, subject to the servitude of pasturage to John Mackenzie of Delvin's adjacent lands of Bridieston, and partly in property to Mackenzie, subject to the like servitude of pasturage to Sir George's adjacent lands of Arntully and others; and the limits of these several properties are known and distinct, so that there was no part of the muir common property.
Mr. Mackenzie, a few years ago, began to improve the muir, by burning and liming, upon that part of it which belonged to him in property; and, having reduced it to tillage, he built houses thereon, and set the same, with some more of the muir, in tack, in order to further improvement; to which Sir George Stewart put a stop, by a process of declarator of right of servitude of pasturage, whereof John Mackenzie could not deprive him, by appropriating to himself the lands set in tack.
It is unnecessary to recite the proceedings had in this case. It is enough to observe, that Mr. Mackenzie, the defender, repeated a process of division; which brought on the very same debate that occurred between Sir Robert Stewart of Tillicoultry and the Feuers of Tillicoultry, No. 8. p. 2469. voce Commonty; and as the Court was then much divided, so they remained no less so still, and appointed parties to be heard in presence, “How far, in a case where there was no property, but a sole property subject to a servitude, there lay action for division: of the subject either by statute or common law.”
Parties were accordingly heard; and as the case was here again argued much to the same purpose as in the above case between Sir Robert Stewart and his feuers, it shall serve to refer thereto.
The Lords avoided a special determination of the point, but fell on somewhat of a middleway: They found, “That, without prejudice to the defender's right of property, the surface of the muir in question might be divided between the parties according to their several interests on that surface;” which seems rather to be a judgment upon the common law than upon the statute.
