Sir Robert Henderson, v. Captain George Makgill, and Others
Date: 21 February 1782 Case No. No 19.
Found that the proprietor was not entitled to a præcipuum in the division of a commonty; but, that he had right to the mines and minerals.
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In the process of division of the commonty of Lucklawhill, Captain Makgill, as sole proprietor, claimed, tanquam præcipuum, a share, exclusive of that which fell to him in virtue of the statute 1695, and endeavoured to enforce his plea by the following authorities: Craig, De Feud. lib. 2. dieg. 8. § 35.; Lord Stair, b. 4. tit. 3. § 12.; Lord Bankton, b. 1. tit. 8. § 36.; Erskine, b. 3. tit. 3. § 57, 58.; 31st January 1724, Hogg contra Earl of Home, No 2. p. 2462.
The Lord Ordinary ‘found, That Captain Makgill was not entitled, by virtue of his right of property, to any præcipuum in the division, but that he had thereby a right to coals, mines, minerals, and other fossils that might be under the same.’
To this interlocutor, on advising a reclaiming petition for Captain Makgill, without answers, the Court adhered, reserving to him to claim that part of the commonty which should remain after the respective shares had been allotted to all the parties having interest.
Lord Ordinary, Alva.For Captain Makgill, M'Cormick.
Fol. Dic. v. 3. p. 137. Fac. Col. No 38. p. 60.
