Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 COMMONTY.
Subject_3 A right of servitude over a Commonty not such an interest as can authorise a division upon the statute 1695, c. 38.

Gilbert Laurie and Robert Hunter
v.
The Duke of Hamilton

Date: 7 February 1771

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[Faculty Collect. V. 236; Dictionary, Appendix I.; Commonty, No. 2.]

Auchinleck, This is a new claim of the feuars, pretending to a right of having commonties divided between the proprietor and one having a servitude, according to valuation. If they have this right, so also has the proprietor. Hence, if a superior should feu out a house and yard, with the pasturage of so many cows, he might restrict the feuar to a proportion of the common corresponding to the valuation of his house and yard. This would be absurd. The servitude gives a right to pasture, not to plough; and we cannot transform the right, and, by a division, give the servient tenement more than it was originally possessed of or entitled to.

Coalston. They who have a right of servitude cannot force a division. If there were only a right of casting peats, this would not give a right of division. A servitude of pasturage is a servitude just as a right of casting peats, though more ample. It is true that the proprietor may insist to set aside a certain share of the surface, such as may be sufficient for the use of the servitude; but that is not the shape of the present process.

On the 7th February 1771, “The Lords found that the feuars who have only servitudes cannot pursue a division on the Act 1695.”

Act. W. Nairn. Alt. R. M'Queen. Reporter, J. Clerk.