Information 1772

Untitled January 4 1772. I N F O R M A T I O N F O R J O S E P H A L L A N o f Castlebrocket, and Alexander Morton o f Chappel; pursuers: A G A I N S T ' J OHN S T EW A R T of Kype, and James Stewart of Craig- muir, and others; defenders. T H E lands of Castlebrocket, belonging to the said Jo seph Allan, and the, lands o f Bonnyhill and Chappel, belonging to the said Alexander Morton, are situated in the pari s h of Avendale and shire of Lanerk, and lie contiguous to each other. The mansion-houses on these lands stand at a little distance from each other, near the bottom of a declivity, facing the north, and their respect iv e grounds rise gradually towards the south, till they terminate in a hill, called Kypesridge. The lands of Castlebrocket, Bonnyhill, and Chappel, i n former times, consisted chiefly of open pastu re and muir-grounds. The upper parts are st ill in the same situation, but the lower parts have been long ago turned into arable land; and what lies nearest, or immediately to the south of the houses, has been inclosed and di­ vided into different fields for upwards of fifteen years past. A The The town of Kilbryde, where a sheep-fair is held yearly in the month of June, lies some miles northward of the pursuers lands, and the parishes of Douglas, Muirkirk, and Lesmahagow lie at a considerable distance to the southward of them. From these parishes there is a high-way, or public patent road to Stratha- ven and Kilbryde, which passes about half a mile to the north-east of the pursuers lands, and does not touch or run through any part of their grounds. The drovers, in the above three parishes, being at a considerable distance from the sheep-market at Kilbryde, and the pursuers grounds happening to lie very Conveniently for the purpose of re- f reshing their sheep upon their journey to the market, they often took the opportunity of the openness of the country to drive them through these grounds, and to allow them to spread at large and pasture thereon, instead of keeping the high-way. While the spi- rit of cultivation was little known, this incroachment upon private property seems not to have been much attended to; interruptions were however frequently made, and when Messrs Allan and Morton acquired right to these lands, and saw the loss they sustain- ed from large flocks of sheep being brought through their fields in this manner, they resolved to put an effectual stop to it. They soon, however, discovered, that the drovers would not voluntarily submit to the prohibition imposed upon them; for up­ on the 4th o f June 1764, a petition was presented to the sheriff- substitute of Lanerk, for the district of Hamilton, in the name of William Portions, and seventeen other persons designing them- selves storemasters, in the parishes of Douglas, Lesmahagow and Muirkirk, alledging, that they and their predecessors had been in the possession of the Drove-road to Kilbryde fair therein described fo r a hundred years past, till lately interrupted; and therefore praying the sheriff to allow them a proof of the use and possession of the said road; and to interdict and discharge Messrs Allan and Morton from molesting them in driving their sheep that way, till the matter was tried. It is unnecessary to recite the various step s of procedure that followed in consequence of this application. The cable was at last removed to this court by advocation; And the Lord Justice- Clerk Ordinary, before an fever, allowed a proof: And a proof having accordingly been taken, his Lordship pronounced an inter­ locutor, upon the 8th of July 1768, in the following terms: ‘ Ha-- ving considered the state of the process, and proof adduced by • both both parties, finds it proved, that the pursuers and other shore- masters and tenants, in the parishes of Lesmahagow, Douglas and:Muirkirk, have acquired, by prescription, the right of a drove- road for passage of their sheep, from their lands lying in the said parishes, to the annual fair held at Kilbryde; and from the said sheep-fai r to their said lands; And finds, that the said drove- road passes through the defenders grounds, at or near the three dyke-nooks; and from thence descends in a straight line, between the houses of Castlebrocket and Bonnyhill; and from thence to Sanfo rdbridge, where it joins the great road leading to Stratha- ven: And finds the defenders liable to the pursuers for the ex­ pence of extracting this decreet, as the same shall be ascertained by the collector of the clerks dues: But finds no other expences due; and decerns.’ And to this interlocutor his Lordship was pleased to adhere upon the 11th o f August, 26th of November, and 14th December 1768. Against these interlocutors Messrs Allan and Morton, the de­ fenders in the original action, preferred a petition: And, upon the 14th of February 1769 your Lordships pronounced the following interlocutor: 'T h e L o rd s h aving advised this petition, with the answers thereto, they sustain the defences, assoilzies the petition­ ers from this process and decerns.’ The storemasters reclaimed in their turn: And having se t forth, in their petition, that they had no right to use a road, which had been pointed out to them, and went by the name of the Peat-road, they prayed your Lordships to adhere to the Lord Ordinary’s inter­ locutors; or, at least to sist process, till all persons having inte- rest in the said road called the Peat-road, should be brought into the field. And your Lordships, upon advising this petition, with answers and replies, pronounced another interlocutor, upon the 8th of February 1770, in the following terms: ‘ The Lords su- percede further procedure in this cause, till all the heretors and others having interest in the Peat-road within mentioned, are made parties in the cause; remit to the Lord Ordinary to pro­ ceed accordingly.' After this remit to the Lord Ordinary, it came to be a matter o f some dispute between the parties, upon which of them it was in- cumbent to bring into the field those that might appear to be inte- rested in the peat-road. This matter however was terminated by Messes Allan and Morton, taking it upon them to raise and exe­ cute a summons for that purpose, in winch they called as defenders the the following persons, viz. James Lockhart of Castlehill, Richard Meikle portioner of Tweedyside, Robert Wiseman of Law, Allan and James Jacksons portioners of Chaple, William Wilson of Neuckfoot, Robert Granger of Markland, John Stewart portioner of Kype, John Cochran of Struther, William Cochran of Craig, James Stewart of Craigmuir, Robert Meikle of Raws, Thomas and John Whites of Windhill, John Meikle in Fiveshillinghouse, Janet Meik spouse to John Muir in Neuckhead, and the said John Muir for himself and for his interest; Marion Meikle spouse to John Wilson in Carnduff, and the said John Wilson for himself and for his inte- rest; Janet Leiper spouse to James Thomson in Gylehouse in Stra- thaven, and the said James Thomson for himself and for his inte- rest; Marion Leiper spouse to Adam Hamilton in Heads, and the said Adam Hamilton for himse l f and for his interest; Jean Watson spouse to James Allason in Windyedge, and the said James Allason for himself and for his interest; and Marion Watson spouse to James L indsay in Dykehead, and the said James Lindsay for himself and for his interest. In this summons, after setting forth the proceedings in the pro- cess with the storemasters, and referring to the proof led in that process, and particularly to a decreet-arbitral recovered in the course of that proof, as evidence that the said peat-road from Raw’s yett to where it joins the great road leading from Lanerk to Stra- thaven, was a common and patent road, Mesr s Allan and Morton concluded, that it should be found and declared, that the said road is at present, and has been time out of mind used as a public, com­ mon, or patent road, or highway, by all the leiges whether travel­ ling on foot or horse-back, or with carts or other carriages, or in driving sheep, black cattle, or other bestial from place to place through the country, and to public fairs or markets, or for any other purpose; and that the defenders, and all others having or pretending to have right or title in the said highway or grounds through which the same passeth, ought and should be prohibited and discharged, by decreet of your Lordships, from all trou­ bling, impeding, molesting, or interrupting the pursuer's or any other of his Majesty’s hedges, in the free use, exercise, and peace­ able enjoyment of the said public highway or road, for all and every purpose, necessary or convenient, as they shall think proper in all time coming. This new action having been remitted to the Lord Justice Clerk Ordinary ob contingentiam, appearance was made in name of the de­ fenders; fenders; but the pursuers having reason to believe, that few or none of the persons called as such meant to oppose a decree being pronounced in terms of the libel, the Lord Ordinary, upon the first of February 1 7 7 1, ' Before answer ordained the procurators for the defenders to give in a condescendance of the names of the defen­ ders for whom they now appeared, and who they alledged had an interest in the decreet-arbitral and peat-road in question.' A condescendance was accordingly exhibited, in which, amongst so many defenders, the following were all that were named as appearing in opposition to the pursuers demand; viz. John Stewart of Kype, John Cochran of Struther, Robert Meickle of Raws, John Wilson of Neukhead, William Wilson of Neukfoot, Allan Jackson of Chaple, James Stewart of Craigmuir, John Meikle of Fiveshilling- house and William Cochrane of Craig. Matters being thus prepared, the pursuers endeavoured to satisfy the Lord Ordinary, from the decreet-arbitral and proof formerly taken, that the road in questiori, called the peat-road, was a common and public road, and that the defenders who appeared in opposi­ tion had no right or interest to prevent its being so declared. It would appear however, that the Lord Ordinary had imagined that the pursuers had meant to bring some further proof; for, upon the 8th of March 17 7 1, his Lordship was pleased to pronounce the fol­ lowing interlocutor; ' The Lord Ordinary having considered the process now brought at the instance of Joseph Allan and Alexan­ der Morton defenders in the original process against John Stew­ art of Kype and others, heritors of Kyperig or Long Kypemuir, with the decreet-arbitral 1668 referred to by both parties, and having heard parties procurators at great length upon the matter in issue, before answer allows the said Jo seph Allan and Alexan­ der Morton to prove prout de jure, that the road, commonly called the peat-road as described in their libel, is, and has been past memory, a public road and high-way, used by the lieges for tra­ velling on horseback or with carriages, and for driving sheep and cattle to the fairs and markets; and particularly, that it has been used as a drove road by the storemasters in the parishes of Lesma- hagow, Douglas and Muirkirk, for driving their sheep to and from the annual sheep markets held at Kilbryde; and allows John Stewart and others defenders in this process, to prove, that the road is not a public or common road, nor has been used in times past by the country in general, and by the storemasters from the three parishes abovementioned in particular, as a drove-road for driving their their sheep so and from the markets at Kilbryde; and allows a conjunct probation to both parties thereanent, and grants com- mission, & c.' The Pursuers apprehended that there was no occasion for any further proof, and therefore proposed, at a calling upon the 28th June last, that the cause should be advised as it stood. Upon which the Lord Ordinary was pleased to recal the interlocutor of the 8th of March allowing a proof, and to make avisandum to your Lord- ships both with this and the original process, and to appoint both parties to give in Informations. In obedience to which appoint­ ment the present Information is humbly offered upon the part of Messrs Allan and Morton, who, though defenders in the original process with the storemasters, are the pursuers in this accessary action against the heritors interested in the peat-roach In the entrance it is worthy of notice, that although the whole of the persons called as defenders in this process have an equal in­ terest in, and must consequently be equally affected by the issue of the question, yet none of them have thought it worth their while to make any appearance except the few above-named: The reft were either sensible that the demand made by the pursuers was founded in justice, or were satisfied that their prevailing in that demand could be attended with no bad consequences to any of them. And the pursuers cannot help suspecting, that the opposition which has been thus made has not taken place without some address upon the part of the storemasters, who are extremely unwilling to be confined to a road in driving their sheep to the fair, while, by coming through the pursuer’s grounds as formerly, they can catch the advantage of pasturing, as well as driving their sheep. But be this as it will, an opposition from so few of the parties interested (if indeed any can possibly be interested in such a question) will give your Lordships no very favourable idea of those who form that opposition. Before proceeding to consider the proper merits of the question itself, the pursuers must take notice of an objection that was made to their title or interest to insist in this process. It was admitted, that, i f the storemasters had been the pursuers, they would have had an undoubted interest; but then it was con­ tended, that, as they did not chuse to appear, the present pursuers, who do not pretend that they themselves have any right to this road, can qualify no legal interest to authorise them to bring the defenders into the field: That it is jus tertii in them to insist that a third party has right to the road; and that, therefore, it ought ought to be found, that the storemasters have no right to it, be- cause they not only have brought no action to have that right ascertained, but even do not so much as pretend to say, that they have any such right. The pursuers must acknowledge, that to them this plea smells very strongly of an understanding between these defenders and the storemasters. An easy answer, however, occurs to it, namely, that your Lordships interlocutor, superceding further procedure in the original cause, till the heritors, and others having interest in the peat-road, should be made parties, does, of itself, establish a sufficient interest in the pursuers, not only to bring the action in­ to court, but also to prosecute it, till a judgement is obtained. The storemasters were by this interlocutor continued in possession of their former usage of driving their sheep through the purs uers grounds. With that they were perfectly satisfied, and, instead of desiring another road, were exceedingly anxious that no other should be found. This naturally led them to resolve to do nothing on their part towards bringing the persons, having interest in the peat-road, into the field. It became, therefore, a matter o f ne- cesity to the pursuers to take that burden upon themselves; and they had the strongest interest to do so, as otherwise the question, in which they were engaged with the storemasters, would never have been brought to a conclusion, and the order of court lifting proce­ dure, would, in effect, have resolved into a judgement in favour of the storemasters against the pursuers. Leaving this objection with your Lordships, the pursuers now proceed to the merits of the question itself. Your Lordships, upon looking into the plan, will see the road that is the subject of the present dispute, being marked out with a doted line from Raw’s yett, and running past William Steel’s and Laird Stewart’s to Craigbridge upon Avon-water; and will observe, that though it stretches further into the muir than the place called Raw’s-yett, it there communicates with a road leading from thence to the three dikes neucks, where the storemasters drive their sheep before entering upon the pursuer’s arable grounds. That this was always a patent and public road, it is by no means incumbent upon the pursuers to establish; but they appre­ hend it must have been so considered, from the time the decreet arbitral was pronounced in the year 1668. This decreet arbitral bears to have proceeded upon a submission entered into between William Bannatyne of Craigmuir, John Ha- milton milton of west Kype, Archibald Meikle of St Bridges Chapel, Wil- liam Rodger portioner o f Kype, John Hamilton o f Raws, John Stewart Portioner of Kype, John Cochran of Struther, John Coch­ ran portioner of Chapel, John Peacock there, John Steel of Wind- hill, James Cochran of Bonnanhill, John Steel of Castlebroket, James Hamilton in Welldikes, taking burden upon him tor the heirs of umquhil William Willock of Highdikes, and William Coch­ ran of Craig, dated 27th May 1663; by which, after mentioning that they had belonging to them, as their proper commonty, the muirs commonly called Kype’s ridge or long Kype muir; and that they considered that the making a divisio n of the north sid e of the said muir, and allocating a proportion thereof to each of them, for the purpose of being converted into arable land, would much tend to their profit and commodity, they referred to certain arbiters there­ in named, the division of the said muir from the crown of Kype’s ridge downward, and from the one end thereof to the other, and the appropriating to each of them their several dales thereof, ac­ cording to their respective rights and interests; the making of all yetts and roadings requisite for them or any of them, the propor- tioning of the building of a Dyke amongst them, and what should be done by each party for keeping good neighbourhood to others in all times, concerning the said division. The decreet-arbitral, after narrating the nature of the submission as above set forth, next proceeds to appropriate to each of the par­ ties submitters their respective proportions of the common muir proposed to be divided, and particularly mentions the number of acres, roods and tails let off to each; and, in the course of making this division of the common muir in these different proportions, the arbiters do likewise set off different roads to be enjoyed by the persons therein particularly named. Thus, immediately after let- ting off 22 acres and 3 roods to William Cochran of Ciaig, the de- creet arbitral proceeds in these terms. ' We have laid off and pit­ ted the breadth of an fall, at the west side of the said William Cochran his deal, for an cartgate to Sir Robert Hamilton of Sil- verton-hill, arid his tenants, as proper to them for their use, wherein the said John Steel of Windhill shall have liberty and priviledge to lead home his yielding yearly, but no further use thereof.’ The arbiters however did not stop here: They were sensible that something more was necessary to be done, than to establish pri­ vate roads for the immediate use of those who otherwise would not have have access from the respective lots allocated to them to the common muir that remained st i l l undivided: They therefore added a clause of more general use in the following words: ‘ We have laid off and pitted the breadth of two falls of ground from the Struther yett through the laid muir, upon the Aveft fide of the laid John Cochran his deal, as an common roading and cartgate for serving all those who have liberty and privilege, accordant to all use and wont, to come and go that way.’ This decreet arbitral in the last place mentions, that the arbiters had proportioned amongst the parties the building of a dike alongst the height of the muir from the one end to the other, and deter­ mines the proportion of the said dike to be built by each party: after which it proceeds in the following terms: And we ordain all these interested in the roading and cartgate from the Struther yett through the said muir, to lung and uphold among them an sufficient yett in the new dike, at the upper end of the said roading and gate; and we declare that the grass and benefit o f pasturing upon the said roading and gate shall properly belong to the said John Hamilton of Raws. That something more was intended by the road from the Stru- ther yett, than by the other roads mentioned, as laid off by the above decreet-arbitral, is perfectly plain from the words that are used by the arbiters relative to that road; for, instead of being laid off for the purpose of serving any one or more of the parties’ sub- mitters, it is mentioned as being laid off as a common roading and cartgate for serving all those « who have liberty and privilege ac- cording to all the use and wont, to come and go that way and in- stead of being made only of the breadth of three ells, or o f a f all like the other roads or gates, as they are called in the said decreet arbitral, it is particularly appointed to be the breadth o f two f alls that is 36 feet: It is plain, therefore, that the arbiters had it in* view to get off this as a public road for all those who were in the use of going or coining that w ay; and as it seems to be an uncontro- vertable point, that the store-masters have been in the use o f driving their sheep through the muir that st il l remained to be divided they certainly fall to be comprehended under those who had liberty and privilege, according to u se and wont, to come and go that w ay and of consequence must be intitled to drive their sheep along the road that was thus laid off, when the more northerly part o f the muir came to be divided amongst the different parties interested in it. It It It accordingly appears from the depositions of several of the wit- nesses examined in the original process, brought by the storemasters, that droves of sheep have been in use of passing this road. Thus, William Young, page 20. D, depones, ‘ That he has known droves of sheep passing by Kypesridge-hill, by the house of John Stewart portioner o f Kype, and by Hannimuir-yett to Craigbridge and Strathaven, in their way to Kilbryde-market; and has assisted in driving these sheep down from the top of the hill, by the peat-road, to the said John Stewart’s; and that John Stewart in Raws of Kype told him, the deponent, that he was concerned in part of these sheep, which sheep came from A- vendale, and the remainder belonged to James Thomson of Cum- berhead, and came off the lands of Logan.’ The same witness, in the after part of his deposition, page 2 1. H, depones, ‘ That while he was driving sheep in the character of a drover, and coining from Muirkirk to this common peat-road, and so alongst to Glasgow by Strathaven and Kilbryde, he was interrupted by the pro­ prietors of Craigmuir; upon which the proprietor of Craigmuir urged a complaint before the Commissary of Glasgow, against the deponent, wherein he was assoilzied.’ Andrew Wilson depones, page 18. E, ‘ That he has observed sheep in droves, appearing at the height in Kypesridge-hill, a- bout a quarter of a mile westward of the former-mentioned passage; and that in their passage from thence to Strathaven, they came in by the house of John Stewart portioner of Long- kype; from thence down to the Hannimuir-yett, and so to the Craigbridge.’ John Young depones, page 28. C, ' That he has seen droves of sheep going to Kilbryde-market come over the Kypes- ridge-hill, down the peat-road, to John Stewart's and Hanni­ muir-yett.’ And John Semple, Thomas Donald, and William Granger, likewise depone to their having seen droves o f sheep, both small and great, passing by this road. From these depositions it is plain, that this road was consider- ed, not, as a private road, in which the persons who had a right in the commanty were alone interested, but as a patent and com­ mon road to every person, who had occasion to travel through Kypesridge-muir: And it is a certain fact that none of the present defenders ever thought of hindering any body from using that road, until the present question arose, when the storemasters either prevailed upon them to make the opposition they now maintain, or or at least put it into their heads, that they had a right to main­ tain that opposition. And the defenders did accordingly lay great stress upon certain passages given in by the storemasters in the ori­ ginal process, in which they disputed, or at least doubted their right to use this peat-road: But the defenders cannot avail them- selves, in the present state of the question, of any arguments that were mentioned upon the part of the storemasters, with a view to prevent them from being debarred of the liberty of driving their sheep through the pursuers grounds, the possessio n whereof they alledged they had enjoyed for time immemorial. The store­ masters had reasons for wishing to be continued in that possession: They discovered the greatest anxiety to retain it. It is therefore no wonder that they should sta rt difficulties, when the pursuers point­ ed out another road to them as equally commodious. The defenders were pleased to observe, that as the decreet-arbi­ tral proceeded upon a submission between certain persons therein specially named, none but those whose predecessors had been par­ ties to the submission or who had now some interest in the muir, could found upon the decreet, or alledge that it bestowed any right upon them. But to this a sufficient answer has already been given. So far as the arbiters pitted off private roads for the use of the individuals of the parties to the submission, no other person can found upon the decreet-arbitral; but, in laying off the road in question, the arbi­ ters had clearly in view the interest of others besides these parties, v iz. all those who had liberty and privilege to come and go that way. Indeed it Was altogether unnecessary to lay off this road for the use of any of the proprietors of the common that was then divided; because, by other parts of the decreet-arbitral, care was taken to give every one of them access to the remaining part of the muir that continued st il l in common, by pointing out roads for such. of them whose lots were surrounded by the properties o f the com- mon assigned to their neighbours; and by declaring, that the others to whom no such roads were particularly given, should make road’s for themselves out of their own dales or properties of the divided land; And accordingly your Lordships will observe, that in the clause relative to the road in question, there is not one of the par- ties submitters, so much as named, except John Cochran, upon the west side of whose dale the road was laid off. T he defenders further founded upon the clause, ordaining all those interested in the roading and cartgate from the strutheryett to hing lung hing and uphold amongst them a sufficient yett in the new dike, at the upper end of the said roading and gate, as affording satis- fying evidence, that this road was designed to be confined merely to the use of the proprietors, parties to the submission, and which the arbiters could not have done, if any persons had been interes- ted in the road, who were not parties to that submission, and could not be bound by their award. But to this an obvious answer occurs from the decreet-arbitral. It appears clearly from thence, that the common then divided, or the new intake, as it is called, was to be fenced in; and the arbiters accor­ dingly proportioned the quota of the dike to be built by each of the parties to the submission. It was, therefore, highly proper that a gate or yett should likewise be ordered in this new dike, at the upper end of the roading and cartgate; and it was most proper to order that to be done at the expence of those of the parties whole divi- sions or lots lay upon the side of this road, or who were to have ac- cess to the muir by the Struther’s yett, which from the decreet-arbi­ tral appears to have been the case of several of them. It was further said for the defenders, that even supposing this peat-road, so far as it goes, to be a public patent road for the whole country, yet the storemasters could have no right to drive their sheep through it straight on to Kilbryde, seeing that this road ends in the Kype muir which is in an uninclosed heath, where there is no road whatever; and that, as some of the defenders are proprie­ tors of the ground towards the north of Kypesmuir, they cannot be obliged to give any passage through their property to the sheep belonging to the storemasters. But here the defenders do not attend to that state of the question which has given occasion to the present action: The pursuers do heartily agree with the defenders, that these storemasters have no ju st right to drive their sheep through this open muir ground; and that, on the contrary, they ought to proceed immediately from Cumberhead to the great road that leads from Douglas to Stra- thaven by Logan-bridge: But the storemasters consi der matters in a different light; they insist that they have been in the constant use of driving their sheep through this muir ground down to the three dikes neuck, and that they have a right to do so; and, if your Lordships are of opinion with the storemasters in this particular, there is an end to this argument of the defenders; because, upon looking into the plan, it appears plainly that there is a direct road from H r * ' 1- 1,rl M ^ 1 ■ from the three dikes neuck to Raws yett, where it joins the peat- road in question. J r t. The pursuers think it unnecessary to detain your Lordships longer: They apprehend, that upon the supposition of the store­ masters being intitled to drive their sheep to the three dikes neuck, it is by far more reasonable that they should be allowed to proceed from thence to the Raws yett and so down the peat-road to Craig- bridge, than to go immediately down through the purs uer’s arable grounds to the sh ealing road-head; but the pursuers do at the lame time submit it to your Lordships, that the storemasters have ac­ quired no proper right to drive their sheep to the three dikes neuck; and that, on the contrary, they ought to confine them- selves to the public high-road leading from Douglas to Strathaven: But as this point has been already considered in the pursuers an- swers to the storemasters petition, which will fall to be advised along with the present information, they shall not consume time with making an unnecessary repetition. In respect-whereof, &c. A L E X A N D E R W I G H T.