Robert Balfour of Balbirny, and others v. Mrs Isabel Douglas of Kirkness
Date: 23 November 1757 Case No. No 13.
In the division of a commonty, the possession by part of a barony, found to preserve the right of the whole barony.
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The predecessors of Mr Isabel Douglas of Kirkness were infeft in the barony of Kirkness and pertinents; and they and their tenants had been in use, past memory of man, to pasture upon the commonty of Boglochty: but, for forty years past, the possessors of two of the farms of the barony had neglected to pasture any cattle upon it, owing to some alterations in the improvement of those farms by the proprietors.
Robert Balfour-Ramsay of Balbirny, and others, were infeft in lands adjoining to the bog of Boglochty, with a privilege of common pasturage in that bog; and they, and all their tenants, had been in use, both in old and late times, to pasture their cattle upon it.
In a division of this commonty, brought by Robert Balfour-Ramsay and others, against Mrs Isabel Douglas, the pursuers insisted, That Mrs Douglas had right to a share in the division of the commonty, not in proportion to her valued rent of the whole barony of Kirkness, but in proportion to those parts of it which had, for above forty years, been in use to pasture upon the commonty.
Answered for Mrs Douglas, it appears from the proof, that, of old, the whole farms of the barony possessed this common, whereby their common property in it was established equally with that of the pursuers: and though some of the farms, by being inclosed, had no occasion, for many years past, to send their cattle to the common; yet the possession that has been had is sufficient to preserve the right of common property once established in the proprietor of the barony.
‘The Lords found, That the defender has right to a share in the division of the commonty, in proportion to her valued rent of the whole barony of Kirkness.’
Act. Advocatus, Lockhart.Alt. And. Pringle, Ferguson.
Fol. Dic. v. 3. p. 138. Fac. Col. No 62. p. 100.
