Scottish Court of Session Decisions

His Lordship added the following note:— “In this case the valuation of the teinds preceded the division of the commonty, and it is pretty clear that the principal lands of Lathro, to which the 17 acres in question are now attached as a surrogatum for the right of commonty in Gallowhill, were the lands valued in the decree of valuation. In these respects, therefore, two of the requisites which are assumed in the decision in the case of Plummer, December 11th 1867, to be essential to entitle a party to maintain that a valuation of principal teinds includes a valuation of accessories, so as to embrace lands which were afterwards assigned to the heritor as a surrogatum for those accessories, have been complied with. But, in other respects, the case is, in the opinion of the Lord Ordinary, ruled by the decision in the Locality of Orwell, March 8th 1867, relied on by the respondent.

(1) The earliest title produced is dated in 1755, upwards of 120 years after the valuation, There is, therefore, no direct evidence to show that, at the date of the valuation, the commonty of Gallowhill was attached to the lands of Lathro, and was not acquired subsequent to 1630. But (2) assuming that difficulty to be got over, the valuation in the present case does not, it is thought, afford any conclusive evidence that the right of commonty was included in the valuation. For there is no express valuation of vicarage teinds, which those of the commonty must have been, nor any valuation in money, from which it may be inferred that the right of pasturage in the commonty was valued. The valuation was exclusively in victual, as in the case of Orwell, viz., one chalder victual, half bear half mealand it is limited to the lands of Lathro, without any mention of right of commonty, or of parts and pertinents. The valuation, no doubt, bears that the lands are worth ‘of yearly rent in stock and teind one chalder victual, half bear half meal.’ But a valuation, though in stock and teind, when in rental bolls, does not, in the opinion of the Lord Ordinary, of itself necessarily imply a valuation of vicarage teinds, as a victual valuation is in the general case held to apply only to parsonage teinds; and the Lord Ordinary feels it the more necessary to act on this view in the present case, because the valuation shows that when vicarage teinds were valued they are expressly mentioned. Thus the lands of Claslochie are stated to be ‘worth of yearly rent in stock and teind two chalders meal, and pays four pounds Scots of vicarage’ and there are other instances in this valuation (No. 202 and 314 of process) in which vicarage teinds are expressly mentioned. The onus, therefore, being on the objector of making out that the right of commonty was valued, the Lord Ordinary has been unable to find grounds sufficient to warrant him in giving effect to the objections, and in holding that the Common Agent was wrong in localling on the objector for the 17 acres of the common of Gallowhill, which I were allotted to the lands of Lathro in 1793 as a mrrogatum for the right of pasturage in the commonty.”

The heritor reclaimed.

Lee and Gloag for him.

Gordon, Q.C., and Adam in answer.

Their Lordships held that the whole question in these cases is whether it is proved in point of fact that at the date of the valuation the principal lands valued had attached to them rights or interests in the commonty about which the question arises. If there was an existing interest in a commonty it is then to be presumed that the fruits of that interest went to swell the valuation, and when the commonty comes to be divided the specific share allocated in lieu of the formerly existing interest must be held a valued subject. But the nature of the valuation here, and the state of the titles of the heritors, made it impossible in this case to hold that the heritor had proved the fact upon which his case depended.