Gordon v Grant

JurisdictionScotland
Judgment Date12 November 1850
Docket NumberNo. 1
Date12 November 1850
CourtCourt of Session (Inner House - Second Division)
2D DIVISION.

Lord Wood. R.

No. 1
Gordon
and
Grant

Commonly—Prescription—Part and Pertinent—Bounding Charter.

Commonty.—

Proof—Commonty—Justice of Peace

Division of Commonty—Servitude.

Commonty—Servitude.

THIS was a process of division of commonty of the Hill or Forest of Corrennie in Aberdeenshire, which was raised by Lieutenant-Colonel John Gordon of Cluny. Amongst the parties called as defenders were Sir James Grant of Monymusk and his curator, and Major-General Patrick Byres of Tonley, and several other proprietors.

The Lord Ordinary reported the case without giving any judgment.

The nature of the case, and the questions of law involved in it, will be found sufficiently indicated in the opinions of the Judges.

Held (in conformity with the decision in the case of Hepburn against the Duke of Gordon) that the proprietor of a barony, with a clause of parts and pertinents, whose titles described his lands as lying within a particular parish, could not acquire by prescriptive possession, any right of common property in lands lying beyond the limits of that parish.

In an action of division of commonty between several adjoining proprietors, part of the lands was claimed by one of the proprietors as his exclusive property;—Held that another proprietor, who claimed a right of common property over it, was not entitled, with the view of showing that it was commonty land, to found on acts of possession by other proprietors, who themselves disclaimed any right of common property over it, and had admitted in the process that it was the exclusive property of the party by whom it was claimed as such.

In a process of division of commonty, a document, which was said to be an extract of certain depositions of witnesses which had been taken in a process before the Justices of the Peace more than a century previously, was founded on as evidence of the boundaries of the common;—Held that the process being one in which a question of right of property could not competently be tried, the depositions were on this, as well as on other grounds of irregularity, not admissible in evidence.

In a process of division of commonty, it having been found that a proprietor who had claimed a right of common property over a part of the lands, had failed in establishing this claim, and that it was the exclusive property of another proprietor;—Held that the former was not entitled to insist on a division of this part of the lands, in...

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