Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1883/21SLR0134.html
Cite as: [1883] SLR 21_134, [1883] ScotLR 21_134

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SCOTTISH_SLR_Court_of_Session

Page: 134↓

Court of Session Inner House First Division.

Thursday, November 22. 1883.

[ Lord Kinnear, Ordinary.

21 SLR 134

Bruce

v.

Bruce and Others.

Subject_1Commonly
Subject_2Division of Commonly
Subject_3Act 1695, c. 23
Subject_4Discretion of Commissioner.
Facts:

The Court will not interfere with the commissioner appointed in a process of division of commonty in regard to matters of detail, but only if he goes wrong in principle.

Headnote:

William Arthur Bruce, Esq. of Symbister, Shetland, raised an action of division of the scattalds or commonty of North Cunningsburgh, Haddabister, and Cliff Hill, in Shetland, in the year 1878.

In July 1878 the Lord Ordinary ( Rutherfurd Clark) remitted to the Sheriff-Substitute of Shetland as commissioner. After two separate schemes of allocation had been prepared by a surveyor under the directions of the commissioner, to which one or other of the parties lodged objections, a third scheme of division was prepared, and by interlocutor dated 5th June 1882 was allowed to be seen by the parties.

Thereafter Nicol Bain and other small proprietors, who claimed in the division, lodged objections to this scheme. These objections raised no question of principle, but dealt entirely with minor matters of detail.

The Lord Ordinary ( Kinnear), before whom the case came to depend, repelled the objections, and remitted to the Sheriff-Commissioner to proceed further in the cause.

The objectors reclaimed.

Judgment:

At advising—

Lord President—It appears to me that in a process of division of commonty the whole practical work must necessarily be done on the spot by the commissioners and surveyors appointed by him, and in every matter of detail the Court must necessarily trust to them to carry out the Act of 1695, and if, as in this case, the Act is not strictly applicable to the circumstances, then to conform as nearly as possible to it. The office of this Court is really to give effect to the scheme of division prepared by the commissioner. Its control over the commissioner consists in this, that if he goes wrong in principle it will set him right, or if he comes for instructions on any doubtful point it will advise him, but as for interfering with his decision in practical matters, that is a thing which I have never heard of the Court doing. The objections here raise no question of principle; they are all objections to matters of detail in the scheme of division. If we were to interfere in such matters we should be taking a leap in the dark, and might upset the whole process so far as it has gone. I am not prepared to do that, and therefore I think the decision of the Lord Ordinary should be affirmed.

Lords Deas, Mure, and Shand concurred.

The Court adhered.

Counsel:

Counsel for Pursuers (Respondents) — Henderson. Agents— Mackenzie & Kermack, W.S.

Counsel for Defenders (Reclaimers)— Galloway. Agent— Thomas Carmichael, S.S.C.
1883

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