Scottish Court of Session Decisions

Lord Benholme—This case arose upon objections stated by Mr Plummer, an heritor in the parish of Selkirk, to a rectified scheme of locality prepared by the common agent, who is the respondent here, by which an additional allocation was made on Mr Plummer, in respect, in the first place, of a pendicle called Blackmiddings; and secondly, in respect of a portion of a common called the Commonty of Selkirk, which had been adjudged to him in a division of that commonty, on the footing that that part of the commonty was not included in a valuation of his lands of Sunderland and Sunderland Hall, led in 1636. The first part of the case we decided some time ago in favour of Mr Plummer, holding that that pendicle was included in the valuation of the lands of Middlestead. But there was an important question that entered into the decision of the second branch of the case,—a question which is one of considerable nicety as well as interest,—namely, in regard to the share of the commonty which had been appropriated to the lands of Sunderland and Sunderland Hall in the division of the commonty. The principle or presumption which it was essential for the objector Mr Plummer to establish, was this,—that where a valuation has been made of principal lands, which at the time had accessory rights over a common, and where a division of the commonty subsequently takes place, it is to be presumed, in favourable circumstances (for the circumstances may be very various), that the share of the commonty which subsequently falls in property to the heritor is to be held identical with, or considered to come in place of, and as a surrogatum for, the accessory rights over the common which the principal lands enjoyed pro indiviso at the time of the valuation. The effect of this presumption is, that the valuation of the principal lands is to be held as including a valuation of their accessory, and so to embrace the portion that comes to the heritor in property as a surrogatum. This is a principle, or rather a presumption, which may be contended for in a great variety of circumstances; and it rather occurs to me that when we ordered the minutes of debate, it was to bring out whether such a principle or presumption could be adopted where there was nothing to interfere with it. It is quite plain to my mind that, in order to adopt such a principle or presumption, certain conditions or postulates are necessary. I may mention two of these. In the first place, I think the valuation must precede in date the division; because, if the valuation takes place subsequent to the time when the right pro indiviso has assumed a definite and local character of property, defined in point of limits, it is not so easy to suppose that the heritor who is in possession of such a definite piece of ground, even though it may have come to him as a surrogatum for a pro indiviso right, will lead a valuation without mentioning, or at least taking some notice of that surrogatum. And when, besides that, the share of the commonty has not retained its character of mere part and pertinent in the feudal titles of the party, but has actually assumed that of a separate and independent subject, such a condition of matters appears to me altogether to overthrow the presumption in question, because the heritor is then called upon to state distinctly in his valuation the piece of property which now figures in his titles as a separate and independent subject. That subject never can be held to pass as an unnamed pertinent of another property which has assumed in the titles an independent character of its own.

There is a second postulate which I think is required; and that is a reasonable identification of the principal lands named in the valuation with the principal lands to which, in the division, the surrogatum is appropriated; for if you cannot identify, in some reasonable way, the lands at the one time with the lands at the other, it will be very difficult indeed to identify the accessories of the lands at the one time with the surrogatum appropriated to the lands at the other. In short, if there is any doubt that the two are exactly the same set of principal lands, there will be great difficulty indeed in identifying the accessories, and in holding that the valuation of the principal lands includes, as a pertinent, the lands that constitute the surrogatum. I have mentioned these two conditions as necessary, because I think the case of Philiphaugh, which we decided in this same locality, and about which a great deal was said at the Bar, stands distinguished from, if not contrasted with, the present case in these two particulars. In the case of Philiphaugh, which I have looked to very minutely, 2 Macph. 1312, the valuation was of a very late date—1811, I think—-whilst the division was long previous. There was great doubt in that case whether the lands of Philiphaugh, Harehead, and Mauldieshaugh, which alone were valued in 1811, could be identified with the old barony, or even with the new barony, the pertinents of which were represented as a surrogatum by the share of the commonty; and in that case of Philiphaugh, the slice of the commonty, which had formed the surrogatum, had, in the titles of the party, assumed a separate and distinct character and name. In these two respects, I think the case of Philiphaugh stands distinguished from the present. I might read some of the opinions of the judges to verify my observations, but I think it will be necessary only, in regard to the second of these conditions, to refer to what is said by the Lord President (then Lord Justice-Clerk). There was no identification between the principal lands to which the share of the commonty was attached pro indiviso and the principal lands which were valued; consequently, the part and pertinent of the one could not be identified as part and pertinent of the other; and as Philiphaugh, Harehead, and Mauldieshaugh were alone stated in the valuation, and no barony was valued, the conclusion seemed to be inevitable that you could not suppose this separate subject, contained in the heritor's titles, to have been valued as a mere part and pertinent of the lands valued. I have mentioned this case of Philiphaugh particularly,

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