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Scottish Court of Session Decisions >>
Duke of Hamilton v The Tenants of Lesmahago. [1670] 2 Brn 491 (13 July 1670)
URL: http://www.bailii.org/scot/cases/ScotCS/1670/Brn020491-0821.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Duke of Hamilton v. The Tenants of Lesmahago
Date: 13 July 1670
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This was a declarator of the property of the Moor of Dovan, intented by the Duke, against divers gentlemen lying adjacent and contigue to the said moor. Alleged for the Laird of Stainebyres, that there can be no process, because there is nothing produced but the Duke's seasine of the barony of Lesmahago, whereof this moor is alleged to be part and pertinent; which being only the assertion of a notary, cannot prove till the warrant of it be produced. answered, he shall produce the charter cum processu. This was found relevant.
Secundo, alleged,—The property of this moor could never be declaimed at the Duke's instance, because it was offered to be proven for Stainebyres, and divers other gentlemen who lie adjacent to the moor, that they stood infeft in their lands by the abbots of Kelso, (of which abbacy, Lesmahago and their lands were a part,) and in whose place, the Duke, as lord of erection, was come; and were in possession of this moor as a commonty past all memory of man, and so had prescribed a right of pasturage there, and so can never be declared the property of any other man; yea some of them were infeft in their lands cum communi pastura, which could be exponed of no other commonty but this moor. And in fortification of this their possession, it is offered to be proven, that the Duke himself, under his own hand, gave warrant to some of his own vassals having also a common interest in that moor, for dividing the said moor betwixt them and the said defenders.
Replied,—That their exception, being only upon a servitude of pasturage, was very consistent and compatible with his declarator of property; and therefore he craved the property might be declared to appertain to the Duke, and reserve them action for constituting a servitude there in, as accords.
