Stewart — Petition, 18 Jun 1772 (Box 2)

Untitled June 18. 1772. Unto the R ight Honourable the Lords o f Council and Session T H E P E T I T I O N O F JO H N S T E W A R T o f Kype, and others, Heritors o f Kypesrigg, or Long Kypemuir, and o f James Stewart of Craigmuir, and others, Proprietors of the ground to the northward of Kypesrigg- muir, and lying contiguous thereto, Humbly sheweth T HAT, in the town of Kilbride, in the county o f Clydesdale, there is annually held a considerable fair, to which many storemasters, particularly those residing in the parishes o f Lesmahagow, Douglas, and Muirkirk, are in use to drive large flocks of sheep. That the road uniformly used by them, in their way to Kilbride, passes through the lands of Castlebrocket and Bonyhill, and others; and as their right to it stood established by immemorial usage, none o f the proprietors of these lands ever dreamed o f interrupting them in their passage, till of late, that Messrs Allan and Morton having acquired the said lands of Castlebrocket and Bonyhill, a- midst other improvements and innovations, bethought themselves of endeavouring to put a flop to the drove-roach However advan­ tageous this scheme might be to themsel ves, to the drovers it was manifest ly manifest ly prejudicial; whilst they had no pretence in law or equity for disburthening their property o f a servitude, subject to which they had purchased it, and no doubt upon easier terms on that ac­ count. This, notwithstanding, they set seriously to work with their project, and, on different occasions, interrupted, or endea­ voured to interrupt, certain of the storemasters sheep, in their way to Kilbride fair; which obliged them to present a petition to the sheriff of Lanerk, setting forth their uniform possession of this road for a century past, and craving a proof and interdict, &c. It is not necessary, in the view of the present application, to en­ ter much into the merits, or to state minutely the procedure in that original dispute betwixt the storemasters and Messrs Allan and Mor­ ton. Suffice it to lay, That the cause having come into this Court by advocation, and in the course o f the rolls before the Lord Ju stice- Clerk Ordinary, his Lordship, upon advising the state of the pro- cess, and a conjunct probation, “ found it proven, That the pur- suers, and other storemasters and tenants of the parishes of Les- mahagow, Douglas, and Muirkirk, have acquired, by prescrip- tion, the right of a drove-road, for the passage of their sheep from their lands lying in the said parishes to the annual sheep- fair held at Kilbride, and from the said sheep-fair to their said lands; And finds, T hat the said drove-road passes through the defenders grounds at or near the Three Dikes Nooks, and from thence descends in a streight line between the houses of Castle- brocket and Bonyhill, and from thence to Sandford bridge where it joins the great road leading to Strathaven: And finds the defenders liable to the pursuers for the expence of extracting this decreet, & c.; but finds no other expences clue.” A gainst this interlocutor the defenders, Messrs Allan and Morton repre- sented; but his Lordship adhered. The defenders next reclaimed to your Lordships; and in the re­ claiming petition they did not very strenuously contest the pursuers nght by prescription to the road in question; but, with much cla- mour, maintained, that it was wanton and vexatious in them to insist upon it, seeing there were three other roads to Kilbride fully more convenient for them; viz. 1mo, The great publick road from the village of Lesmahagow to Strathaven; 2do, The moor road from Douglas to Strathaven and, 3tio> A road which leads by one laird Stewarts and Struther to Craigbridge, and which is called the Peat- road Your Lordships, upon advising this petition, with answers were pleased to reverse the judgment of the Lord Ordinary, and to sustain die defences, and assoilzie. The The storemasters, in their turn, were now obliged to reclaim. And as your Lordships, in altering the Lord Ordinary’s judgment, had been principally moved by the defenders averments in regard to the three roads above mentioned, which made it appear emulous in the pursuers to insist for a fourth, in the reclaiming petition, they endeavoured to satisfy your Lordships, that two of the three would be highly inconvenient, if not impracticable, for the purpose of carrying their sheep to the fa ir; while, as to the third, viz. the Peat- road, they agreed with the defenders, that it would he fully more commodious for them; but that they had not the smallest shadow of a title to it, either from usage, or any other right. The petition prayed your Lordships to adhere to the interlocutors of the Lord Ordinary, finding they had a right to the road which they claimed; or at least to sist process till all persons having interest in the road called the Peat-road may be brought into the field, that the right of the petitioners, either to this drove-road or to the Peat-road, may be ascertained.” Upon advisin g this petition; with answers and replies, your Lord­ ships pronounced the following interlocutor: “ The Lords super- sede further procedure in this cause till all the heritors and others having interest in the Peat-road within mentioned, are made par­ ties in the cause; and remit to the Ordinary to proceed accord­ ingly.” A summons was accordingly raised, at the instan ce of Messrs and Morton, who, in the friendly view of disburthening their own property of a servitude, which, for a century past, had been acquies- ced in, and Imposin g it upon their neighbours, from whom no such servitude had ever hitherto been demanded, and whole possessions the only persons who had right or interest to exact it had expressly declared to be free, from being defenders, now assumed the character of pursuers; and compearance being made for the heri­ tors principally intereste d in the Peat-road, the Lord Ordinary, o f this date, pronounced the following interlocutor: “ The Lord Or- dinary having considered the process now brought at the instan ce of Jo seph Allan and Alexander Morton defenders, in the origi- nal process against John Stewart of Kype, and others, heritors of Kypesrigg 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 Alexander Morton to prove prout de jure, That the road commonly called the Peat-road, as described in then libel, is, and has been, past memory, a publick road and high­ THEP way, used by the lieges for travelling 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 store­ masters in the parishes of Lesmahagow, Douglas, and Muirkirk for driving their sheep to and from the annual sheep-market held at Kilbride; and allows John Stewart and others, defenders in this cause, to prove, That the road is not a publick or common road, nor has been used in times past by the country in general, and by the storemasters from the three parishes above mentioned in particular, as a drove-road for driving their sheep to and from the markets at Kilbride; and allows a conjunct probation, & c." This interlocutor was never carried into execution: On the con­ trary, Messrs Allan and Morton, on whom it lay to bring a proof of this servitude which they wanted to impose upon their neigh­ bours, and which they had expressly declared themselves to be in a capacity of doing, instead of extracting their commission, moved no further in the cause till about four months thereafter, when, at a calling, of this date, they declined leading any evidence, and de­ clared their willingness that the cause should be advised as it stood; upon which the Lord Ordinary “ recalled the interlocutor 8th March last, allowing a p roo f; made avisandum to the whole Lords with this and the original process; and appointed both parties to give in informations on the merits thereof.” Informations were accordingly given in; but the pursuers not- withstanding that, in the enrolment before the Lord Ordinary just mentioned, they seemed to rest their cause entirely upon the im­ port of an ancient decreet arbitral, having now pressed in to their service some passages of the proof in the question betwixt them and the storemasters, to which the present petitioners had been no parties, and which consequently could be no evidence against them, your Lordships, at advising the informations, pronounced the fol­ lowing interlocutor: “ The Lords having considered the state of this process, they allow the proof taken in the original process at the instance of the storemasters against Messrs Allan and Morton to be repeated in this process without prejudice to the defenders, who were not parties in said original process, to re-examine the wit- nesses adduced, if they shall think proper; and remit both pro- cesses back to the Lord Ju stice-Clerk Ordinary, to proceed ac- cording ly; and also, to allow both parties such further proof as they shall desire, and as he shall see ju st, and on the whole to do as he shall see cause.” In this shape the cause again returned to the Lord Ordinary, when when, from the good offices of their friendly neighbours Messrs Allan and Morton, the petitioners found themselves seriousl y invol­ ved in a law-suit, and a proof with persons who could themselves pretend no right to the servitude they were pursuing for, and which the only persons who could have the smallest vestige of a pretence to it, were not only not insisting for, but had expressly disclaimed. They behoved also to view it as a disagreable circum- stance, that their cattle, in the event of extracting a commission, and in every step of it, behoved to be loaded and perplexed with proofs, memorials, petitions, and answers, &c. &c. with which they had never had the smallest connection; and all, or the greatest part of which, were perfectly foreign to the question now at issue. Of this date, the Lord Ordinary pronounced the following inter­ locutor: “ Before answers allows the pursuers a proof, that the road commonly called the Peat-road, as described in their libel, is and has been, part memory o f man, a publick road and highway used by the lieges for travelling on horseback or with carriages, and for driving sheep and cattle to the markets, and particularly, that it has been used as a drove-road by the storemasters in the pa- rishes of Lesmahagow, Douglas, and Muirkirk, for driving their sheep to and from the sheep-markets held at Kilbride; and allows John Stewart and others defenders in the process to prove, that the said road is not a publick or common road, nor has been used in times past by the country in general, and by the storemasters from the three parishes above mentioned in particular, as a drove- road for driving their sheep to and from the markets at Kilbride; and allows a conjunct probation to both parties thereanent; and grants commission to persons to be named by the parties or their doers before extract:, and failing the said nomination, or the persons named not accepting or attending, to the sheriff-de- pute, or the substitute of the bounds for taking o f the said proof, any of the lawful days of the ensuing vacation, upon the grounds in controversy, or in the town of Strathaven, each party giving eight days previous notice to the other before taking said proof, all to be reported to the Lord Ordinary against the day of next, and grants diligence hinc inde.” The petitioners were humbly advised, that neither the decreet- arbitral, nor the proof led by the pursuers in the original dispute with the storemasters, and now allowed to be repeated, could be suf- ficient to impose the wished for servitude upon their property; for that the former respecte d themselves, and themselves only, and that that the latter was very trifling and inconclusive; not by a hun- red degrees so strong and satisfactory as what had been brought by the storemasters in support o f the servitude claimed by them a- gainst Messrs Allan, and Morton. Agreeable therefore to the maxim, Actore non probante, absolvendus est reus, they naturally ex­ pected, that the pursuers would think it incumbent upon them to extract the commission, and take the lead in the cause • but whilst in this ju st expectation, they were disappointed, and their doer necessarily detained in London during the greater part of the va­ cation, the time limited for taking the proof has been allowed to elapse. The petitioners are now impatient to have the cause brought to an issue; and as they propose to examine but a very few wit- nesses, to whom at this season of the year it can be no inconve­ nience to come to Edinburgh, whereas it behoved to be exceed­ ing inconvenient lor the doers of either party at present to attend the examination in the county, they are humbly hopefull that an application for a warrant for letters of diligence against wit- nesses will appear a reasonable request; a request which the absence of the Lord Ju stice-Clerk Ordinary, lays them under the necessity o f presenting to your Lordships. May it therefore please your Lordships to grant warrant for letters of di- ligence against witnesses; or to remit caus e to the Lord Ordinary upon the bills, or any o f your Lordships number in place o f the Lord Justice-Clerk, for that purpose. According to ju stice, &c.. R O. S I N C L A I R Edinburgh, June 18. 1772. Betwixt the hours of 10 and 12 be­ fore noon, I James Buchan, apprentice to William Wilson writer to the signet, agent for the petitioners, intimated to James Marshall writer to the signet, doer for the said Messrs Allan and Morton pursuers, That copies of this petition were to be put into the Lords boxes this forenoon, in order to its being moved in Court to-mo- row; and I delivered to the said James Marshall a copy of the find petition, with a note thereon, expressing the time it is expecte d the same is to be moved. This I did before these witnesses, William Wilson apprentice to the said William Wilson and Alexander Mac- Dougal, apprentice to the said James Marshall. THE PI O N H F E l o r d s c l e r k s. 1 8 7 2 J 8 O 8 7 H This memorial refers to a proof annexed to a petition for Mess. Allan & Morton, dated 23d Dec. 1768, to which answers were made for W illiam Porteous and others; and the same were advised 14th February 1769. The Lord Ordinary’s interlocutor having been altered, P o r- teous gave in a petition in March 1769; to which answers were made 18th October thereafter; and along with the answers there were sepa- rately given in copies of the proof, originally annexed to their petition in December 1 768; and to these answers replies were made for P o r- teous 22d December 1769. As thelapetition, ans wers, and reply are yet unadvised, and will probably be taken up, and advised with the memorials in this case as connected therewith, James Marshall for Mess. Allan & Morton begs you will be so good as look for copies of the original proof, which has been twice put into the boxes, as he has none to give in with this me- morial, which otherwise he would have done. Mr Sommers is agent for Porteous, to whom application may be made for the petition and reply, if warned, and Mr Martshall will deliver copies of the answer to such of you as desire them.------Mr William Wilson is agent for John Stewart and others, who gives in the counter memorial, with the addi­ tional proof o f four pages therein referred to,