Scottish Court of Session Decisions

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Cite as: [1867] ScotLR 3_290_1, [1867] SLR 3_290_1

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SCOTTISH_SLR_Court_of_Session

Page: 290↓

Court of Session Inner House Second Division.

Friday, March 8 1867.

Lord Cowan

3 SLR 290_1

Richmond

v.

Little.

Subject_1Teinds
Subject_2Commonty
Subject_3Decree of valuation.

Facts:

Circumstances in which held that it was not proved that the teinds of a portion of divided commonties were included in a decree of subvaluation.

Headnote:

This is a question in the locality of Orwell between Mr Richmond, one of the heritors, the minister of Orwell, and the common agent in the locality. The question is, whether the portion now belonging to Mr Richmond of the divided commonties of Cuthill Muir and Berry Muir are to be held as having been included in a sub-valuation obtained in 1630. The subjects described in Mr Richmond’s title are “the lands of Collinstain or Collinston, and Stenton, with houses, biggings, yards, parts, pendicles, and pertinents of the same whatsoever, lying within the barony of Cuthill-Gourdie and sheriffdom of Perth.” The commonties were divided and allocated in 1774. The Lord Ordinary (Barcaple) held that Mr Richmond had failed to show that the valuation included the teinds of his portion of the commonties. There being no mention of the commonties in the titles and no information in regard to them at all prior to the division in 1774, it was only presumptively that it could be held that they existed as commonties in 1630, and that the right of commonty then attached to Collinston and Stenton. But assuming that that was to be presumed, the Lord Ordinary was of opinion that on a sound construction of the decree of valuation it could not be held to include the teinds in question.

The pursuer (objector) reclaimed.

Cook and Duncan for him.

Clark and Asher for defender.

At advising,

Judgment:

Lord Cowan—I concur in the views taken of this case by the Lord Ordinary.

It is a principle well established that an heritor asserting that the teinds of his lands have been valued has imposed on him the burden of making out the fact on grounds satisfactory to the Court. This principle is specially applicable to a question

Page: 291↓

of the kind raised by this record—viz., whether the valuation ascribed to certain lands nominatim, includes the teinds of a portion of the existing property known under that name, to which the right is not shown by the titles to have belonged in exclusive property to the heritor. The portion of land, the teinds of which are in question came into the exclusive possession and ownership of the heritor only at the division of the commonty in September 1774. Prior to that date this portion of the lands did not form a part of the estate of Colliston and Stenton; except in so far as it may be held to have been embraced within the titles as a portion of the undivided common to which the proprietor had right. To establish the allegation that the teinds of this part of his present estate in this situation are valued, the heritor requires to make out two propositions—1st, That, in 1630 when the valuation was led before the sub-commissioners, there was attached to the lands of Colliston and Stenton a right of property in the undivided commonty; and 2d, that the valuation in question did, in fact, apply to and include this share of the undivided of common. On both of those points it appears to me that the case of the heritor rests on no satisfactory ground, but is based on mere inference, on which it would be unsafe for the Court to proceed.

On the first question, it is contended that the description of the lands has continued the same in the titles from a date within a few years of the valuation of 1633 until now. It is “All and whole”—[Reads]—This description contains no right to the commonty either specially or in the general terms cum communitatibus usual in early title-deeds. though “parts and pertinents” are given. These words may, by possession of commonty, apply to a right of property or to a right of servitude. It cannot therefore be certainly predicated that at the date of the valuation any right of property in the undivided commonty appertained to the proprietor of the lands of Colliston and Stenton. There may be a presumption to that effect, but it is not certain that it was a property and not a servitude right. Passing, however, from that objection, the graver objection is, that the valuation affords no evidence that this right of commonty was included in the valuation. The words are, “the lands of Stenton and Colliston pays of teind 29 bushels victual, two-part meal and third-part bear.” No reference is here made to rights of commonty, or to parts and pertinents. Observe the different terms in which other lands in the decreet are specifically valued as regards teinds. Where valuation sets forward a sum of money paid as rent or value and worth of “stock and teind,” there might be room for holding that rent or value to have included rights in commonty attached to the lands then valued. The present is not a case of that kind at all. There is merely a valuation of the teinds paid for the lands. That must have been the value or worth of the rental both paid by the then owner of the teinds to the titular. On the Whole, I think this reclaiming note should be refused.

Lords Benholme and Neaves concurred.

The interlocutor of the Lord Ordinary was accordingly adhered to.

Counsel:

Agents for Pursuer— Jardine, Stodart, & Fraser,W. S.

Agents for Defender— Lebrun, Henderson, & Wilson, S.S.C.
1867