Charles Barclay Maitland, v. John Tait, and Others
Date: 11 August 1772 Case No. No 17.
Feuars had rights of servitude of pasturage on a commonty, followed by possession. The rule of division was found to be, not the valued rent, but the number of sheep and bestial in use to be pastured on the commonty; except where the feuars, rights limited them to a less number of sheep.
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In a process of division of the commonty called the Hill of Tillicoultry, at the instance of Mr Barclay Maitland, against certain feuars of part of the estate of Tillicoultry, it had been contended in limine for the defenders, that a division was not competent, there being here no common property, the whole being the property of the pursuer, subject only to servitudes of pasturage. However, a right of common property having been conferred upon one of the feuars, it was found, that the division might proceed; and a proof was allowed of what tenements had been in possession. A proof being accordingly led, the pursuers, insisted, That the division of the commonty should be in proportion to the valued rent.
Objected, That the valued rent could not be the rule of division; but that the defenders, who had rights of servitude disponed to them, and had possessed in consequence thereof, must have as much of the common set apart to them as was sufficient for the pasturage of the numbers of cattle and bestial they had proved to be in use of pasturing upon the common; and the remainder only to be left to the pursuers, and others claiming rights of property.
‘The Lords find, That the rule of division in this case is not the valued rent; but that the commonty must be divided conform to the number of sheep and bestial in use to be pastured thereon, except where any of the feuars are limited by their rights to a lesser number of sheep.’
Reporter, Auchinleck.Act. M'Queen.Alt. Ilay Campbell.Clerk, Robertson.
Fol. Dic. v. 3. p. 139. Fac. Col. No 26. p. 69.
