Page: 691↓
Et e contra.
Subject_Commonty.—
Titles “with parts and pertinents used and wont,” and “with the privilege of sheiling,” held not to import a right of property in a common, unless so explained by the possession had thereupon.
In the division of the common of Finlet, claims for a share of the common in property were given in inter alia for the Earl of Airlie, in respect of his lands of Freuchie and Sturt, and for Rattray of Kirkhillocks, in respect of his lands of Eastmill and Tulloch. These several lands (which with the common itself had formed part of the barony of Glenisla) had originally belonged to one individual, having been included in a crown charter in favour of Farquharson of Shannally, of date February 18, 1685, under the following description:—“Totas et integras villam et terras de Freuchie, et lie miltoune de Freuchie, molendinum, terras molendinarias, astrictas multuras et sequelas ejusdem, cum pendiculis dict terrarum vocat. Tulloch et altero Sturt nuncupat., cum omnibus et singulis domibus, ædificiis, hortis, toftis, croftis, lie gleanings, grassings, sheillings, mossis, moris, pasturis, privilegiis, libertatibus, decimis et pertinentiis quibuscumque ad dict. terras spectan., jacen. in dominio de Coupar, baronia de Glenylla et vicecomitatu de Forfar.”
The lands contained in this charter were, in 1699, conveyed to Patrick Ogilvy of Balfour, who was infeft therein, and who, of date 5th June, 1702, feued out to Ogilvy younger of Wester Pearsie, part of them consisting of Tulloch, and the Miltown, mill and mill-lands of Freuchie, now called Eastmill, and thus described in the feu-charter:—
“Totas et integras terras de miltoun de Freuchie, et molendinum, et terras molendinariis de Freuchie, astrictas et liberas, multuris et sequelis ejusdem, et illam pendiculam terrarum de Freuchie, nuncupat Tulloch, cum omnibus et singulis domibus, ædificiis, hortis, toftis, croftis, lie glennings, grazings, shealings, mossis, moris, pasturis, privilegiis, libertatibus usitatis et consuetis, ad eosdem pertinen. et particulariter cum privilegio de lie shealing in lie Glen de Finlet nuncupat. nec non totam et integram illam sextam partem omnium et singularum terrarum de Pitlochrie, nuncupat. Smiddylands, cum domibus, ædificiis, hortis, toftis, croftis, et pertinen. quibuscunq ad hujusmodi spectan., omnia jacen. in dominium de Coupar, infra baroniam de Glenislay, et vice-comitatum de Forfar, ac per me a Gulielmo Farquharson de Shanalie acquisit.”
In 1767, Alexander Ogilvy, the descendant of the vassal in this feu-charter, conveyed to trustees the lands of Eastmill and Tulloch, thus
The trustees under this deed thereafter conveyed the lands therein contained in two separate lots of Eastmill and Tulloch to different parties; the latter being disponed, in 1767, to Mercer of Aldie, and the former, in 1769, to James Rattray.
In the disposition of Tulloch, that property was thus set forth:—“All and haill that part of the lands of Freuchie called the Tulloch, with the houses, biggings, yeards, tofts, crofts, gleannings, grazings, sheallings, mosses, muirs, pasturages, privileges, liberties, and pertinents of the same, used and wont, with the teinds, parsonage, and vicarage of the said lands, and particularly with the privilege of shealling in the Glen called the Finlet.”
In like manner, Eastmill was, in the disposition thereto, conveyed “With all and sundry houses, biggings, yards, tofts, glennings, grazings, shealings, mosses, muirs, pasturages, privileges, liberties, and pertinents, used and wont, pertaining to the same, and particularly to the priviledge of shealing in the Glen called Finlet.”
Infeftment followed on these dispositions, and the two properties ultimately came by progress into the person of the respondent, Rattray of Kirkhillocks, the terms of the titles being retained as in the dispositions last mentioned. Mean while, in 1714, Patrick Ogilvy of Balfour conveyed to the then Earl of Airlie the whole lands as contained in the charter of 1685, under reservation of the feu-right as to Tulloch and Eastmill constituted in 1702, the description in the conveyance being as follows:—
“All and haill the Milntoun of Freuchie, with the mill, mill lands, multures, and sequels of the same, free and astricted ringbear; as also all and hail the town and lands of Freuchie, with the pendicles and outsets thereof, called Tulloch, and the other called Sturt, with their hail houses, biggings, yards, tofts, crofts, gleanings, grassings, shealings, mosses, muirs, pasturages, privileges, liberties, and pertinents, used and wont, belonging thereto, lying within the barony of Glenisla, &c., together with all right, title, interest, and claim of right, property, and possession, as well petitor as possessor, which I or my foresaids had, have, or any ways may have claim or pretend to the lands, mills, and others above disponed, or any part thereof, or mails and duties of the same, any manner of way whatsomever in time coming.”
In the process of division, a proof of the possession of the common was
To this report both Rattray and Lord Airlie lodged objections; the former, in so far as the titles to Tulloch were not held to import a right of property in the common equally with those of Eastmill; and his lordship, in so far as a right of property was attached to Eastmill.
Rattray, besides maintaining that the proof of possession was sufficient in regard to both properties, to support a right of property, pleaded that the clause of “pertinents” was a good title per se to infer a right of property, 1 and separately, and in particular, that this had been held to be the case as to a “shealling” in the case of Rattray, in 1724. 2
Lord Airlie, on the other hand, in addition to his argument on the proof as to possession, maintained that “pertinents used and wont,” which were the terms of the clause here, only inferred a right of servitude, at most a title on which to prescribe a right of property; and as to the “shealling,” that the case of Rattray was only as to a title to pursue, for which purpose a right of servitude was then held sufficient; 3 and besides, that the right there conveyed was “a shealling,” while here it was only “the privilege of shealling,” which was an express limitation of the right to a servitude; so that neither as to the one property nor the other was there a title to afford a right of property in the common, even, though followed by prescriptive usage, sufficient to have supported such right under an apt title.
_________________ Footnote _________________
1 E. of Wigton v. Feuars of Biggar, Feb. 1, 1739 (Elchies Commonty, 2).
2 Nov. 27, 1724 (2463).
3 Lord Polwarth v. E. of Home, Jan. 31, 1724 (2462); Ersk. 3. 3. 57.
*“The commissioner (page 101, A. of printed report) holds the title to Tulloch to import only a direct grant of a servitude of pasturage and shealing, though sufficient, if followed by prescriptive possession, to convey a right of common property in the subject of division; but not being satisfied with the proof of such possession, he has found, not only that the defender has no such right of property, but that the servitude also has been lost, non utendo, except as to a very small portion of the commonty. The Lord Ordinary cannot concur in these views, either as to the nature of the title or the possession; and as the reasons for which he has rejected them are substantially the same which have led him to approve of the rest of the report, and repel the objections of Lord Airlie, a very short explanation of them will show the grounds of both parts of his judgment.
“The property lands of both parties, and the whole common, belonged of old to the same party, and formed part of the barony of Glenisla. In 1695, the family of Airlie acquired right to a very small property called Newtoun, with a clause of parts and pertinents. In 1714, they acquired their two other properties of Freuchie and Sturt, with a clause, not of parts and pertinents generally, but of ‘muirs, mosses, grazings, pasturages, privileges, liberties, and pertinents used and wont.’ The defender's author, on the other hand, got a disposition in 1702 from the granter of the last mentioned conveyance to Lord Airlie in 1714, of his two properties of East-mill and Tulloch,’ with grazings, shealings, pasturages, mosses, muirs, and privileges and liberties used and wont, and particularly with the privilege of a shealing in Glen Finlet.’ These two properties were held by the disponee and his heirs, undivided, till 1767, when Tulloch was sold, under the description above recited, but with the addition of the word ‘pertinents,’ to ‘privileges and,liberties used and wont;7’ and, In 1769, a similar disposition was made of Eastmill, with precisely the same addition; so that after this date (or for the last 60 or 70 years) the two properties of Tulloch and Eastmill, now belonging to Rattray, have been held, with the very same clause of ‘privileges, liberties, and pertinents used and wont,7rsquo; as occurs in Lord Airlie's title to his lands of Freuchie and Sturt, and with the additional and peculiar clause of ‘the privilege of a shealing in Glen Finlet.’
“In these circumstances, the Lord Ordinary concurs entirely in the opinion of the Commissioner, that, in so far as the title is concerned, Lord Airlie can, at all events, claim no higher right for his lands of Freuchie and Sturt (to which a right of property in the common has been adjudged with the assent of all parties) than must be allowed to the defender, Rattray, for his lands of Eastmill and Tulloch. He also concurs with him in thinking, that, assuming prescriptive possession to be necessary, there is sufficient evidence of such possession as to Eastmill, as well as in regard to Freuchie and Sturt; and, on these grounds, he has approved of the report, in so far as it repels Lord Airlie's objection to allowing Rattray a property in the common in respect of Eastmill. In regard to that property, it was therefore unnecessary to consider whether prescriptive possession was truly necessary to complete the title. But as to Tulloch, which the Commissioner holds not to have made out such a possession, it is necessary, as well as to consider whether there is not, tota re perspecta, evidence enough of the possession.
“In so far as the right is founded on the effect of the words ‘privileges, liberties, and pertinents,’ which has stood in the titles of Tulloch since 1767 (and which form the whole title of Freuchie and Sturt), it is perhaps the sounder opinion, that prescriptive possession is necessary; though the Lord Ordinary thinks the true explanation of this requisite of possession, under such a clause, is given by Lord Elchies in his report of the case of Lord Wigton (Voce Commonty, No. 2), and also in the Faculty Collection of the Duke of Hamilton's case, of 30th July, 1768, viz. that it is to be regarded merely as evidence of what was truly intended to be given under these general words, and not as a means of acquiring what was not so intended by virtue of the positive prescription, in which view a proper prescriptive possession would not seem to be requisite. But, independent of this, there is in the title of Tulloch a special direct grant of ‘the privilege of a shealing in the Glen of Finlet;’ and the question is, whether this does not imply a grant of common property, requiring no farther possession than may be sufficient to exclude the running of a positive prescription in favour of another party, The right to a shealing, as the Commissioner has well observed (page 93, G.), with reference to Eastmill, is something more than a right to pasturage (though it clearly implies such a right), and indicates both a permanent and exclusive occupancy, which can scarcely be referred to any thing less than property. But the matter does not rest on inference or general reasoning, if the decision in the case of Rattray, 27th November, 1824 (Morr. 2463), is held to apply. In that case the title was almost exactly as it is here, viz. a conveyance to certain property lands, ‘with shealings and gleanings in the forest of Alyth;’ and also ‘pendicles and pertinents used and wont.’ The disponee brought an action of division of commonty on the statute, and the objection was, that, till he proved sufficient possession under the clause of pertinents, he could not be held a common proprietor entitled to pursue such an action. The answer was, that this might be true, if he had no other title but under that clause; but that his charter contained a direct conveyance of shealings and gleanings within the common, which implied a right of property, and was consequently a sufficient title. The decision was, that ‘the pursuer being infeft in the shealings and gleanings within the forest, was entitled to pursue the division. The Lord Ordinary would hold this conclusive, if the grant here had been simply of a shealing in Glen Finlet; but it is only of ‘the privilege of a Shealing;’ and though he is inclined, especially with reference to the case of Moncrief, 15th December, 1752 (Morr. 2479), to think that this ought not to make any difference, still it is such a variance as renders it proper to look to the state of possession, on the supposition that this may be ultimately thought necessary to establish a right of common property.
“It is quite true, that there is much less proof of possession for Tulloch than for Eastmill. But this may be partly accounted for by its being a much smaller property, and chiefly by the fact that, having belonged to the same proprietor from 1702 till 1767, the stock of the two might be confounded, or not distinguished by the older witnesses. But there is no doubt, that, both before and after the separation, it had, by its titles, an indisputable right to possess, on the same footing, and in the same character as Eastmill, and cannot well be presumed, therefore, not to have exercised that right. In truth, there is scarcely any evidence as to possession, anterior to 1767, (a period beyond memory in 1832). But as there is redundant evidence of continuous and immemorial possession from that date backwards as to Eastmill, I can well presume it to have existed antecedently up to the period of the original title in 1702; and the first question which occurs to the Lord Ordinary, is whether the benefit of that prescription must not be extended to Tulloch also, which was all that time held by the same owner, and upon the same titles? He is inclined, upon general principles, to answer this question in the affirmative, especially as, soon after the separation in 1767, there is evidence of possession by Tulloch; which, though somewhat scanty, seems quite sufficient to connect retro with the original titles, and so to let in the legal presumption. The specialty as to Tulloch is that, about the year 1790, the owner of Eastmill (apparently without the privity or consent of any of the other parties) appears to have challenged the right of Tulloch to herd, or gather the sheep for the night (it scarcely seems to have gone farther) in Glen Finlet; and that this was submitted to, in a good degree, for twenty years thereafter, so that there was little open possession during that period, though it seems to have been again resumed in 1812 and 1813, and to have been persisted in, though not without occasional resistance, down to the raising of the present process. But if the Lord Ordinary is right in thinking that the possession anterior to this challenge, is to be presumed retro to the original grant (and there is strong evidence of separate possession by Tulloch for four or five years, especially before 1790), then it must be held that a prescriptive possession was already established at the time of that interruption, the benefit of which, as a completed right, could not be lost, except by a total cessation of use for forty years (which cannot be at all pretended in this case), or rather by the subsequent acquisition of the right by another party, in virtue of the positive prescription. This principle appears to have been fully recognised in the case of Rodgers and Harvey, 10th July, 1827 (5 Shaw 917), affirmed on appeal, 8th January, 1823; and on its application to the present case, some aid may be derived from the earlier case of Balfour and Douglas, 23d November, 1757 (Mor 2480), where possession by one part of a barony was found available for all the other parts, there being traces of an original possession by them also, though discontinued for the last forty years.
“Upon these grounds, the Lord Ordinary has come to the conclusion that Tulloch ought not to have been distinguished from Eastmill, and that the commissioner has done wrong in refusing it a share of the commonty. The very possession which he has recognised, as sufficient to maintain its servitude over a particular district of the common, comes in aid, as the Lord Ordinary views it, of its claim to a common property in the whole, it being clear, and now admitted by all parties, that there is but one commonty to be divided.
“It is needless, perhaps, to add, that the recent decision in the case of Small against Ferguson, 1st February, 1804 (Mor. Appendix, voce Commonty, No. 3), is conclusive against Lord Airlie's demand for having the value of the mill and multures of Eastmill deducted from the amount of Its cumulo valuation.”
The Lord Ordinary pronounced this interlocutor, adding the subjoined note:
*—“Sustains the objections for James Rattray, defender, to
The Earl of Airlie having reclaimed,
The Court altered the interlocutor “so far as regards the lands of Tulloch,” approved of the report, and remitted to the commissioner to proceed further in the execution of the commission.
Solicitors: John Yule, W.S.— P. Pearson, W.S.—Agents.