Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.

Douglas of Douglas and Thomas Forrest
v.
Inglis and other Feuars in Douglas

Date: 22 January 1777

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The burgh of Douglas is a burgh of barony holding of the family of Douglas. From time to time the family had feued out houses and yards, and other pieces of lands adjacent to the burgh, to the different feuars. The feuars had, besides, a right of servitude of pasturage, &c. on the commonty of Douglas. But then the subjects of the feu were specially designed and bounded in the several feu-rights. Mr Douglas was superior of the whole, and proprietor of a part of the run-rig lands, and he was superior and proprietor of the common, subject to servitudes.

In process of time, many of the pieces of land feued out, having past through several hands, and been acquired by different persons, became parcelled out into many pieces, and lay in many places run-rig. And this situation of the lands being found inconvenient, Mr Douglas, and one of the feuars, raised a process of division, first of the run-rig lands, and next of the commonty: the libel did not set forth specially the statutes 1695, c. 23, and, but made a general reference to the statutes for run-rig and division of commons. As to the runrig lands, it was doubted how far, where portions of land are feued out, specially marched and designed, and so far as they extend, lying contiguous, whether these could be reckoned run-rig, in a process of division at the instance of the superior who had feued them out, and who seemed to be debarred from pleading that they were run-rig, even supposing they were so, by being afterwards divided among different proprietors. And further, it was doubted how far a special contiguous property, which remained the case with others of them, could be forced into a division of run-rig; or fall under the Act 1695.*

* Parties did not agree, whether the lands, when feued out, were run-rig, or whether they only became so by after purchases.

As to the last observation, the decisions of the Court were quoted in answer; particularly the case of Tranent. This decision was approved of; and although, in that case, the vassals pursued the division, and were opposed by the superior,—and, in this case, the superior and one of the vassals pursued the division, and were opposed by the rest; this made no essential difference: a superior, provided he was part proprietor, was entitled to bring this division as well as any other.* And, as to the first part of the observation, besides what was already observed, there did not appear any personal objection to debar the superior from prosecuting the division, unless that thereby it could be alleged, that there was an infringement upon the warrandice. 22d January 1777, “ The Lords, on report of Lord Auchinleck, repelled the objection to the process, so far as concerned the run-rig lands; and found that the division thereof, upon the Act 1695, may proceed.”

In reasoning on this cause, the Lords held, that the exception of burrow acres, in the Act 1695, related only to the case of royal burrows, and had been so constructed in practice. Lord Monboddo held the contrary.

* At any rate, this objection struck only at Mr Douglas, one of the pursuers, who was superior, but not at Mr Forrest, the other pursuer, and who was one of the feuars.