Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PLANTING AND INCLOSING.
Subject_3 The clause of the Act 1661, c. 41, respecting Half-dyke, is perpetual.

James Riddel of Crasteir
v.
The Marquis of Tweeddale

Date: 5 December 1769

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[Fac. Coll. IV. 359; Dict. 10,489.]

Auchinleck. This is an excellent statute, obliging every one to bear half-dyke. It is understood to be a subsisting law, and justly and happily so.

Kennet. In the case Wilson against Sharp of Houston, it was found by the Court to be a subsisting law. There, an equitable exception if a high road so divided the ground of the conterminous heritor that there remained not sufficient space for an inclosure.

Justice-Clerk. The statute still subsists. The inclosing there mentioned does not seem confined to ditch and hedge: the species of inclosure must be determined by circumstances. Every estate is profited by inclosing.

Hailes. It is said that this statute may be turned into an engine of oppression by great against petty landholders: we are not to judge of possible grievances. It is remarkable that this statute has been in full force for upwards of a century, and yet there has been no one instance where it has been used as an engine of oppression; so that here there is nothing more than the apprehension of a grievance.

Monboddo. I cannot agree to the doctrine that pasture farms are not within the law. There is scarcely any sort of soil which may not be improved by culture, at least by trees.

Pitfour. Wherever ground enough is left out for making an inclosure, the law takes place. Such was the principle in the case of Penman, where the law was found not to apply, because there was no subject fit for making an inclosure.

President. The law has been found not to relate to small feuars, to ministers, nor where the quantity of ground was insignificant or cut by a road. Did the case occur of some great landholder endeavouring to ruin his little neighbour by calling him to bear march dyke for many miles, I should possibly not give way to such a demand, upon the statute.

Coalston. The law relates to every species of ground except flow mosses, for which no manner of improvement has as yet been discovered; yet I cannot blame the tutors for trying the question.

On the 5th December 1769, “The Lords found that the Marquis of Tweed-dale is bound to concur with Mr Riddel in making the inclosures, except where the high road lies upon or near to the march;” adhering to Lord Elliock's interlocutor.

Act. R. Campbell. Alt. A. Murray, A. Lockhart.