Scottish Court of Session Decisions

Subject_1 PART I.

COMMONTY.

Gilbert Laurie of Polmount, and Others,
v.
The Duke of Hamilton and his Tutors

Date: 21 February 1771
Case No. No. 2.

A right of servitude over a commonty, not such an interest as can authorise a division upon the statute 1695, C. 38.

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In the process of division of the commonty of Reddingrig and Whitesiderig it was found that there were three different classes of heritors who had an interest. (No. 15. p. 2481) The First and second of these were found to have a right of common property corresponding to their respective lands, and were insisted to a share in the division according to their valued rent. The third class, consisting of the feuar of the family of Hamilton, were found not to have a join right of property, but a right of servitudes merely in terms of their title-deeds; it being, however, declared, that the share to be set off to the Duke of Hamilton was to be burdened with these servitude, and that the feuars were to be continued in possession, till such time as shares should be set off to them sufficient to answer such servitudes.

When the case returned to the Lord Ordinary, the pursuers, who composed this third class, insisted that, according to the interlocutor, they were intitled to have the commonty allotted to the Duke divided, and shares set off to them respectively. In order to determine the point, his Lordship made avisandum to the Court, with these questions; 1mo, Whether these feuars could oblige the Duke of Hamilton to divide that share of the common allocated to him so as each person might have a share appropriated corresponding to this servitude? and, 2do, In case the feuars could force such division, by what rule it ought to be made?

In a memorial, the pursuers pleaded:

Their demand was founded both on the words and spirt of the statute 1695. That statute authorised the division of all commonties; and it was sufficient to constitute a commonty, that the use of subject was common in consequence of servitudes of common pasturage, or others constituted over it in favour of different persons, though the property of the subject should belong to one. As the state had expressly authorised such division to be made at the instance of those having interest, it necessarily followed, that those having a servitude, which was unquestionably an interest, had a title compel a division of the common advantage; and if this was not done, the subject must remain in its present uncultivated state, to the loss of the country in general, and to the particular injury of the parties interested.

When it was acknowledged therefore, and decided that the pursuers had the superficial use and possession of the subject in common, they were certainly in titled to have that surface, the subject of their right, divided, so that each might enjoy it severally, and under his own management. Such appeared to be the intention of the statute; the words of which plainly imported, that such as had rights of common property were to have a share set apart to them corresponding to their interest; and that such as had only servitudes or a superficial right, were to have a share of that surface, in like manner set apart, corresponding to the interest or value of their servitude. These cases fell, at any rate, under the purview and intendment of the statute; and as the great object of that law was to prevent discord, and to encourage the improvement of the country, its salutary effects would be much restrained, if rights, such as the present, were not comprehended. The precise question had been determined, 3d June 1748, Sir George Stewart against John M'Kenzie, No. 10. p. 2476.

The Duke of Hamilton pleaded:

There was not, in the present instance, the existence of the proper parties in the field to authorise a division upon the enactment of the statute 1695. By the interlocutor in No. 15. p. 2481. the Duke, as proprietor, was found intitled to a share in the division corresponding to the valued rent of such of the grounds holding of him as had only a right of servitude in this commonty; and as there were here two separate independent interests, a right of property in the one, and a servitude in the other, there was such a contradistinction and diversity of titles, that neither by the common law nor by statute were the feuars intitled to demand a division. The statute 1695 related only to the division of right of common property; and as it assumed for the rule of division the valuation of the respective properties, it was the concourse only of such mutual rights of the same nature that constituted a common property; and in that case alone was there room for its application.

As the nature and extent of the parties, rights to the common grounds was decidedly fixed, there was no principle of law that could intitle those who had only a right of servitude to convert that servitude into a property, or to compel the proprietor to abandon his right of property, and betake himself to an inferior species of right.

These principles were not only founded on reason and justice, but had been acknowledged in various instances by the Court; in particular, 1st Feb, 1740, Stewart of Tillycoultry, No. 8. p. 2469; which bore a near relation to the present question.

“On report of the Lord President in absence of the Lord Justice-Clerk, and having advised the memorials hinc inde, the Lord find, That Gilbert Laurie, and the others in pari casu with him, with whose servitude Duke Hamilton's share in said commonty is burdened, cannot, upon the act 1695, insist against the Duke For a division of said share.”

In a reclaiming petition for the pursuers, it was argued:

That the present question was of particular importance; for if the judgment of the Court was adhered to, the commonty in question must remain in its original uncultivated state, to the great loss of those interested, as Well as to the loss of the country in general. If such was the law, it must be allowed to be defective, and required an amendment. But this case was not overlooked by the statute: The great object of it was the general improvement of the country, which entitled it to the most liberal construction; and upon these principle it appeared to have been the intention of the law, to authorise the division of all commonties possessed by different person, and that without distinction, whether they had only rights of common property, or where some of those interested had only right of servitude.

At the time of passing the statue, the legislature could not be ignorant of the state of the country, and that most of the commonties then in contemplation were burdened with servitudes; so that when it was meant to provide a remedy against a national grievance, it could not be presumed that commonties loaded with rights of servitude should be exempted from the general rule, the reason for authorising a division applying to the one case equally as to the other.

To constitute a commonty in the acceptation of law, it was sufficient that the use of the subject was common; and as the statute authorised the division of all comonties, those belonging to the King and Royal Burghs alone excepted, none else were excluded; and hence those having a common use, or, in the language of the enactment, having an interest, seemed to be entitled to a division and specification of that interest. Division betwixt those having rights of common property, and those having only rights of servitude, had been authorised by the Court. 31st Jan. 1724, Hog of Harcarse against Earl of Home, No. 2. p. 2462. 3d June 1748, Sir George Stewart against Mackenzie of Delvin, No. 10. p. 2476.

The petition was refused without answers.

Lord Ordinary, Justice Clerk. For Laurie, &c. Macqueen. For the Duke of Hamilton, Nairn. Fac. Coll. No. 81. p. 236.