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Archibald Campbell of Blytheswood raised a process of division of the moss of Dargavell or Inchinnan, under the act 1695, in which Lord Douglas and certain other adjacent heritors were called as defenders. The object of this action was to have the moss divided according to the respective valuations of the lands and properties adjacent, as laid down in the act of Parliament.
A counter action of declarator and division was brought at the instance of Lord Douglas, and the other heritors, to have it found that this moss was not such a common property in the sense of the statute as to be divisible according to the valuation, and that it should be divided according to the front of the surrounding properties.
The Lord Ordinary conjoined the actions, and allowed both parties a proof of the manner in which the moss in question had been possessed and in general, of all facts and circumstances relative to the proposed division. A proof was accordingly taken; from which it appeared, that the adjacent heritors had from time to time inclosed ground from the moss; that they had each taken in that part of the moss which was adjacent to their farms, according to the extent of their respective lands lying along the front of the moss; that the tenants upon each estate had confined themselves, in their use of the ground, to such parts as were so inclosed; and that there was little or no use made of the part the moss which still remained undivided.
The Lord Ordinary, upon advising a proof, “found, that the boundaries of the property of each heritor, who is either pursuer or defender in this cause, must be fixed according to the extent of their respective lands lying along the front of the moss in question to the centre thereof.”
Against this judgment, Blytheswood presented a petition to the Court, contending, 1st, That the moss in question had been proven to be a common property, according to the terms of the act of King William; and, 2dly, That there had been nothing proven peculiar in the condition of this common moss which should make it be divided according to a different rule from that fixed by the act of Parliament.
But the Court, upon advising the petition with answers, adhered to the interlocutor of the Lord Ordinary. It appeared from the proof, that the practice and understanding of all parties hitherto had been in favour of the principle adopted in the Lord Ordinary's interlocutor; and there were decisions referred to, in which it was found, that a moss in similar circumstances was not to be divided according to the valuation of the adjacent properties, but according to the front adjoining to the moss. Such a decision was given in the case of the Paisley moss, July 2, 1713, and lately in the case of the Blackstone moss, 12th November 1800.
Lord Ordinary, Methven.Act. Lord Advocate Hope, Campbell, jun. Reddie, Jardine.Agent, Geo. Dunlop.Alt. Solicitor-General Blair, Ross, Campbell, Jo. Murray.Agent, Ja. Davidson, junior.Clerk, Pringle.
Fac. Coll. No. 159. p. 359.
