Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 RUNRIDGE.
Subject_3 The Act 1695 found not to apply where the fields required to be divided amounted to Thirteen Acres.

William Buchanan
v.
John Clark

Date: 21 November 1766

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[Faculty Collection, IV. 83; Dictionary 14, 142.]

The twenty-shilling lands of Little Udston belong to Buchanan and Clark; 56 acres to Clerk, 55 and some fractions to Buchanan.

The several fields and acres belonging to each lie not contiguous, but intermixed. The infield land consists of about 12 narrow small fields, containing from four to one acre each. Of them seven belonged to Clark, five to Buchanan.

The outfield land consists of two fields, 13 and 29 acres, and of a field of 41 acres. The former two belonged to Clark, the last to Buchanan.

The field of 41 acres, marked G. in the plan, lies between the fields of 29 and 13 acres, marked in the plan V. T.

Clark insisted, in an action before the Sheriff of Lanark, upon 41st Act Par. 1, Car. II, setting forth that he was about to inclose the fields of 29 and 13 acres, and concluding that Buchanan should be at equal charge with him in making a march dyke to park their inheritances.

On the other hand, Buchanan insisted, in an action before the Sheriff, subsuming that the parcels G. V. T. fell within the statute 1695, and concluding to have them divided.

On the 8th November 1765, the Sheriff found that the ground craved to be inclosed by Clark does not fall within the Act made anent runrig, and that Buchanan is liable in the one half of the expenses of properly inclosing the said ground, and that he ought to concur with Clark in making a proper fence upon the march which divides their respective properties.

Buchanan advocated this cause. On the 19th July 1766, the Lord Hailes, Ordinary, found that the fields marked V. T. G. i. e. those of 29, 13, and 41 acres, do not fall under the Act 1695; and therefore repel the reasons of advocation, and remitted simpliciter. On the 2d August 1766, he adhered.

Buchanan reclaimed against the said interlocutor, and answers were put into this petition.

Argument for Buchanan:—

Buchanan endeavoured to establish two propositions, 1st, That the ground in question did fall within the Act 1695 concerning runrig. 2dly, Although it did not; neither did it fall within the Act 1661, concerning march-dyke.

As to the first, the Act has not determined what is meant by runrig. The Court however has uniformly applied it to fields lying in rundale, rather than runrig. Thus, in the case Heritors of Inveresk against Milne, 13th November 1755, a field of six acres was found to fall under the Act, and, in the noted case, Chalmers against Pew, fields of two and three acres were found to fall under the Act; although those acres, situated near the city of Edinburgh, were probably of greater value than the largest field in Little Udston.

The reason of this interpretation is obvious. The Act was intended for the improvement of the country by planting and inclosing. The Act therefore merits a liberal interpretation. A literal one, confined to ridges, would not tend to improvement.

Further, it is plain that little Udston was formerly one tenement divided in consequence of the succession of heirs-portioners, or by some sale, either legal or voluntary. The fields in question are the outfield lands of Udston. They are but accessaries of the infield land. It must be admitted that the infield may be divided. Therefore the outfield may be divided also.

As to the second point, the rent of the outfield ground is very inconsiderable, and, therefore, it does not fall under the Act 1661. Thus, in the case, Penman against Douglas and Cochran, 3d July 1739, it was found that the Act 1661 does not reach to small feuars who had not above five or six acres of ground. The act does not so much respect the extent as the yearly value of the ground. For the first branch of it requires heritors to plant and inclose more or fewer acres, according to the respective rents.

Argument for Clark:—

As to the first point, before the statutes 23 and 38 Par. 1695, neither commonties nor lands, lying runrig, could be divided, excepting by voluntary agreement. This was attended with inconveniences; and for obviating them those statutes were made. But as the common rights of property were thereby encroached upon, the statutes are not to be extended beyond their plain intendment. It may be doubted whether the division of fields of two or three acres, lying rundale, can be forced by the statute 1695: but it is plain that that statute never meant to force the division of fields which surpass the size of a common inclosure. One of the fields in controversy consists of 41 acres, of itself no inconsiderable farm. The others of is and 29 acres, of themselves large inclosures.

The two decisions quoted are not in point. For, there, the ground was so situate, as to to be incapable of inclosing, or of any other improvement, unless by being divided.

If an action for dividing such fields, as those of 13, 29, and 41 acres be competent, it is impossible to say where the law would stop. Reasons of expediency might be urged for dividing whole farms and whole estates.

On the 21st November 1766, The Lords adhered.

For Buchanan, J. M'Laurin. Alt. R. M'Queen. OPINIONS.

Justice-clerk. The law of runrig does not extend to such large parcels of ground. Adjacent heritors are mentioned: no matter whether the tenement was originally one or several. The judgment as to half-dyke is also right.

Coalston. The law, with regard to the division of commonties and run-rig lands, is of great utility, and to be liberally interpreted. The statute has not described the meaning of runrig. If this means alternate ridges, there never could be a division. Possession is always by alternate shotts or dales: a single ridge is not sufficient for the purposes of agriculture. Dales are small in infield, large in outfield; for the former are always in corn, the latter sometimes in grass: wherever one tenement has been possessed by different proprietor, so that their properties are intermixed, the law takes place.

Barjarg. All this tenement has been held by the same tenure. It was the view of the Legislature to enforce planting and inclosing. It is most convenient for parties that the law be extended to such cases as this.

Affleck. The statute is not to be confined to rig about, although land is sometimes so laboured. The statute does not mean to divide different portions of arable ground. It means to prevent common or intermixed possession: although different authors, still there might be a necessity of division; although the same authors, no such necessity; but this cause does not fall within the law. The portions are large. The law did not mean to lay every man's ground together. Here the ground may be inclosed as it is, and when ground can be inclosed without division, there is no place for the law.

Pitfour. Where the one statute ends, the other begins; so that, if I cannot get a division, I may get a march-dyke: but I know no instance of a division of outfield land if not plowed: rundale might go the same way as runrig, being an accessary.

The Act 1695 must be interpreted so as to apply to this case; for rundale commonly depends upon runrig.

Kennet. Most outfield ground is only bad by being badly managed. Here the fields are large enough for inclosing. We cannot force the parties to exchange their property.

Coalston. A dangerous rule to determine by inclosures; for four or six acres may be a convenient inclosure.

President. My difficulty lyes upon the words of the Act of Parliament. In many cases, the possession is by rig and rig, though I confess with manifest inconveniency. Two or three ridges, or more, may be runrig. Outfield cannot be possessed in runrig. How can I vary the property? Great estates may have belonged originally to one proprietor; it would be dangerous to inquire what was joined originally if now separated.

Diss. Barjarg, Coalston, Pitfour and Gardenston.