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Scottish Court of Session Decisions >>
Sir Robert Gordon of Gordonston v Archibald Dumbar of Thunderton. [1711] 4 Brn 832 (20 February 1711)
URL: http://www.bailii.org/scot/cases/ScotCS/1711/Brn040832-0337.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Sir Robert Gordon of Gordonston v. Archibald Dumbar of Thunderton
Date: 20 February 1711
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Mr Archibald Dumbar of Thunderton having bought the barony of Duffus, and intending to inclose a park near the house; but finding Sir Robert Gordon of Gordonston's lands come so near that he behoved to take in a part of them within his inclosure, he applies to the Justices of Peace of the shire of Murray, who adjudged several parts of Gordonston's adjacent lands to Thunder-ton, for his park, and in recompense adjudged a part of the lands of Duffus of equal value in favours of Gordonston, and ordained the highway to be cast about 200 ells, as the 41st Act 1661 allows. Of this decreet Gordonston raised suspension, on thir reasons, That it was not in terms of the 17th Act 1669, which presupposes that the corners of the designed park must be in the incloser's own ground, and the line betwixt the two to be on the common march; which is not so in this case. 2do, Part of the lands craved to be inclosed in Gordonston's ground lie run-rig, and the 23d Act 1695 is for exchanging them wholesale; whereas Thunderton, by the scheme and draught of the park, cuts them through the middle, and halves them at the tail; by which subdivision some of the kail-yards and rigs of Gordonston's tenants are lopt off, and lands given to them at a considerable distance, to the prejudice both of master and tenant; which could never be the meaning of the said Act of Parliament for dividing run-rigs. 3tio, There can be no excambion here; for Duffus's lands are so affected with incumbrances that he cannot effectually transmit the property of one foot of ground thereof.
Answered,—He opponed the Act of Parliament empowering justices of the Peace to cognosce, march, and meith adjacent lands, and give off lands for making the dyke even, which is a public good for improvement of the policy; and run-rig can never hinder the same. And if his right be questioned, he will give absolute warrandice, or the equivalent in money, at the current rate of such lands in the country.
The Lords turned the justices' decreet into a libel, and ordained a new visitation and perambulation of the ground.
