Joseph Allan of Castlebrocket and Alexander Morton of Chapel v. John Stewart of Kype and James Stewart of Craigmuir — Memorial, 16 Feb 1773

Untitled [Lord [Lord� � � � � � � Reporter.] February 16. 1773. M E M O R I A L F O R Jo seph Allan of Castlebrocket, and Alexander Morton of Chapel, Pursuers, A G A I N S T John Stewart of Kype, and James Stewart of Craigmuir, and others, Defenders. T HE lands of Castlebrocket, belonging to the said JosephAllan, and the lands of Bonnyhill and Chapel, belong­ing to the said Alexander Morton, are situated in the pa- rish of Avendale, 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 respective grounds rise gradually towards the south, till they terminate in a hill called Kypesridge. The lands of Castlebrocket, Bonnyhill, and Chapel, in former times, consi sted chiefly of open past u re and muir grounds. The upper parts are st i l l in the same situation; but the lower parts have been long arable; and what lies nearest or immediately to the south of the houses, has been inclosed, and divided into dif­ ferent fields, for upwards of fifteen years past. 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 highway or public patent road to Strathaven and Kilbryde, which passes about half a mile to the north of the the pursuers lane’s, and does not touch or run through any part of their property. 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 refreshing the sheep upon their journey to the market, they often took the op­ portunity of the openness of the country to drive them through the grounds, and to allow them to spread at large, and pasture thereon, instead of keeping the highway. While the spirit of cul­ tivation was little known, this incroachment upon private proper­ ty seems not to have been much attended to. Interruptions were however frequently made; and when Mess. Allan and Morton ac- quired right to these lands, and saw the loss they sustained from large stocks 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 vo- untarily submit to the prohibition imposed upon them; for up- on the 4th of June 1764, a petition was presented to the sheriff- substitute of Lanerk for the district of Hamilton, in the name of William Porteous and seventeen other persons designing themselves, Storemasters in the parishes of Douglas, Lesmahagow, and Muirkirk, alledging, that they and their predecessors had been in the possessio n of the drove-road to Kilbryde fair, therein descri- bed, for a hundred years part, till lately interrupted; and there- fore praying the sheriff to allow them a proof of the use of pos- session of the said road, and to interdict and discharge Mess Allan and Morton from molest ing them in driving their sheep that way, till the matter was tried. It is unnecessary to recite the various steps of procedure that fol- lowed in consequence of this application. The cause being at last removed to this court by advocation, the Lord Justice-Clerk Ordi- nary allowed a proof before answer; and after advisin g that proof, pronounced an interlocutor upon the 8th of July 1 768 in thefolwingrms."Havcdp- cess, and proof adduced by both parties, finds it proved tha epurs, andother smaters ndtas ithe paris ofLesmahgow, Dulas, ndMirk, havecquird 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 K ilbryde, and from the said sheep-fair to their find lands: * —------ —-» lands; and finds, that the said drove-road passes through the defenders grounds, at or near the Three Dikeneuks, and from thence descends in a straight line between the houses of Castle- brocket and Bonnyhill, and from thence to Sanfordbridge, where it joins the great road leading to Strathaven; and finds the defenders liable to the pursuers for the expence of extract­ ing this decreet, as the same shall be ascertained by the collec­ tor of the clerks dues; but finds no other expences due; and decerns.” And to this interlocutor his Lordship adhered upon the 11th of August, 26th of November, and 14th of December 1768. Against these interlocutors Mess. Allan and Morton, the de­ fenders in the original action, preferred a petition; and upon the 14th of February 1769, your Lordships pronounced the follow­ ing interlocutor. “ The Lords having advised this petition, with the answers thereto, they sustain the defences, assoilzie the pe­ titioners from this process, and decern.” The storemasters reclaimed in their turn; and having set forth in then 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 in­ terlocutor; or at least to sist process till all persons having interest in the said road, called the peat-rod, should be brought into the field. And your Lordships, upon advising this petition, with an­ swers and replies, pronounced another interlocutor upon the 8th of February 1770, in the following terms. “ 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 parties in the cause, and remit to the Lord Ordinary to proceed accordingly.” After this remit to the Lord Ordinary, it came to b e a matter of some dispute between the parties, upon which of them it was incumbent to bring into the field those that might appear to be interested in the peat-road. This matter, however, was termi­ nated by Mess. Allan and Morton taking it upon them to raise and execute a summons for that purpose, in which they called as de- fenders the following persons, viz. James Lockhart of Castlehill, Richard Meikle portioner of Tweedieside, Robert Wiseman of Law, Allan and James Jacksons, portioners of Chapel, William Wilson of Neukfoot, Robert Granger of Merkland, John Stewart portioner 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 of Five-shil- ling-house, Janet Meik, spouse to John Muir in Neukhead, and the said John Muir, for himself and for his interest, Marion Mei­ kle, spouse to John Wilson in Carnduff, and the said John Wil- son, for himself and for his interest, Janet Leiper, spouse to James Thomson in Gylehouse in Strathaven, and the said James Thomson, for himself and for his interest, Marion Leiper, spouse to Adam Hamilton in Heads, and the said Adam Hamilton, for himself and for his interest, Jean Watson, spouse to James Alla- son in Windyedge, and the said James Allason, for himself and for his interest, and Marion Watson, spouse to James Lindsay in Dikehead, 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 which leads from Raws-yett, northward by William Steil and David Stewart’s houses to Caigbridge, where it joins the great road from Lanerk to Strathaven, was a common and patent road, Mess. 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 common or patent road or highway, by all the lieges, whether travelling 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 on the said highway, or grounds through which the same passeth, ought and should be prohibited and discharged, by decreet of your Lordships, from all troubling, impeding, molesting, or interrupting the pursuers or any other of his Majesty’s lieges, in the free use, exercise, and peaceable enjoyment of the said public highway or road, for all and every purpose necessary or convenient, as they shall think pro­ per, in all time coming. This new action having been remitted to the Lord Justice-Clerk Ordinary ob contingentiam appearance was made in the name of the defenders in general; but the pursuers having reason to be­ lieve, that few or none of the persons called as such meant to op- pose pose a decree being pronounced in terms of the libel, the Lord Ordinary, upon the 1st of February 177 1, “ before answer or­ dained the procurator for the defenders to give in a conde- scendence of the names of the defenders for whom they now appeared, and who they alledged had an interest in the de­ creet-arbitral and peat-road in quest i on.” A condescendence was accordingly exhibited; in which, amongst so many defend­ ers, the following only were named, as appearing in opposition to the pursuers demand, viz. John Stewart of Kype, John Co­ chran of Struther, Robert Meikle of Raws, John Wilson of Neuck- head, William Wilson of Neuckfoot, Allan Jackson of Chapel, James Stewart of Craigmuir, John Meikle of Five-shilling house, and William Cochran of Craig. Matters being thus prepared, the pursuers endeavoured to satis­ fy the Lord Ordinary from the decreet-arbitral, and proof for­ merly taken, that the road in question called the peat-road, was a common and public road, and that the defenders who appeared in opposition had no right or interest to prevent its being so de­ clared. It would appear, however, that the Lord Ordinary had imagined that the pursuers intended to bring some further proof; for, upon the 8th of March 177 1, his Lordship was pleased to pronounce the following interlocutor. “ The Lord Ordinary ha­ ving considered the process now brought at the instance of Jo- seph Allan and Alexander Morton, defenders in the original process against John Stewart of Kype, and other heritors of Kype-rigg or Long Kype-muir, with the decreet-arbitral 1668, referred to by both parties, and having heard parties procura­ tors at great length upon the matter in issue, before answer al­ lows the said Joseph Allan and Alexander Morton to prove prout de jure, that the said road, as described in their libel, is and has been, past memory, a public road and highway, used by the lieges for travelling on horse-back, 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 Muir- kirk, 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 coun­ try in general, and by the storemasters from the three parishes above above mentioned in particular, as a drove-road for driving their sheep to and from the markets at Kilbryde; and allows a conjunct probation to both parties thereanent, and grants com- mission,” &tc. But at a subsequent calling, 28th June 17 7 1 his Lordship was pleased to recall this interlocutor, and to make avisandum to your Lordships with both processes Informations were accordingly given in for the pursuers, and for the defenders who appeared in the new process; and these de­ fenders having objected, that the proof taken in the original pro­ cess brought by the storemasters could not affect them who were no parties to that process, your Lordships pronounced the follow­ ing interlocutor upon the 2 1 st of February 1772. “ 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 Mess. 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 witnesses i f they shall think proper; and remit both processes back to the Lord Ju- stice-Clerk Ordinary to proceed accordingly, and also to allow both parties inch further proof as they shall desire, and he see ju st; and, on the whole, to do as he shall see cause.” The defenders seemed for some time uncertain whether they would lead any new proof or not; and as the pursuers did not think it necessary for them to bring any other proof, in the event of the defenders declining to lead proof upon their part, they were desired at a calling upon the 29th of February 1772, to say positvely what they intended to do in that respect but to this the pursuers could get no other answer than the following. CRAIG, for John Stewart, and others, defenders, insisted That t here was yet no proof in the cause against them; and if the Lord Ordinary grants, and the pursuer takes, such proof against them, craved to be allowed a conjunct proof of all facts and circumstances relative to the matter in issue ” Upon which the Lord Ordinary pronounced the following interlocutor. The Lord Ordinary, before answer, allows the pursuers a proof that the road commonly called the peat-road, as described in their libel is, and has been past memory of man, a public road and highway, used by the lieges for travelling on horse- back 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 the storemasters in the parishes of Lesmahagow, Douglas, and Muir- kirk, for driving their s heep to and from the sheep-market held at Kilbryde; and allows John Stewart, and others, defenders in this process, to prove, that the said road is not a public or com­ mon road, nor has been used in times past by the country in general, and the storemasters from the three parishes above mentioned in particular, as a drove-road for driving their sheep to and from the markets at Kilbryde; and allows a con­ junct probation to both parties, and grants commission, &c.” The defenders still showed no inclination to go into proof, nor were any steps taken by them till the 19th of June 1772; when they preferred a petition, setting forth, That they proposed to ex­ amine but a few witnesses, to whom it could be no inconvenience to come to Edinburgh; and therefore praying your Lordships to grant warrant for letters of diligence against witnesses, or to re­ mit the cause to the Lord Ordinary upon the bills, or any of your Lordships number, in place of the Lord Ju stice-Clerk, for that purpose; and the pursuers having by their council agreed to the diligence being granted, your Lordships, upon the 20th of June 1772, pronounced this interlocutor. “ The Lords having heard this petition, with the above consent, they, of consent, grant warrant for letters of first and second diligence, at both parties instance, against witnesses, for proving, in terms o f the Lord Ordinary’s interlocutor of the 29th of February last, to the 6th day of July next; and in respect of Lord Ju stice-Clerk’s ab- sence, authorise the Lords Ordinaries on oaths and witnesses for the time, to take the depositions of the witnesses to be cited for both parties.” A proof was accordingly led, copies whereof are herewith given in; and the Lord Justice-Clerk having made avisandum to your l.ord- ships with the whole process, and ordained parties procurators to prepare memorials, this memorial is humbly offered upon the part of the pursuers. The present process has never been conjoined with the original process brought at the instance of the storemasters, which stands at petition, answers, and replies. But as both causes will pro­ bably be advised by your Lordships at one and the same time, the pursuers shall confine themselves in this memorial to the single question in which they are engaged with the heritors who pretend to have an interest in the peat-road, and a tide to exclude the storemasters from the use of that road. In the entrance it may be observed, that although the whole of the persons called as defenders in this process have an equal interest in, and must consequently be equally affected by the issue of the question; yet none of them have thought it worth while to make any appearance, except the few above named. The rest 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 them, And the pursuers cannot help suspecting, that the opposition Hen has been thus made, has not taken place without fome address upon the part of the storemasters, who are extremely un­ willing to be confined to a road in driving their sheep to the fair while, by coming through the pursuers 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, (it indeed any can possibly be interested in such a question) will give your Lordships no favourable idea of those who form that opposition.- Before proceeding to consider the proper merits of the question itself, the pursuers must likewise take notice of an objection that was made to their title or interest to insi st in this process It was admitted, that if the storemasters had been the pursuers they would have had an indoubted 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 to them to insi st that a third party has right to the road; and that therefore it ought to be found, that the storemasters have no right to it because they not only have brought no action to have that right ascer- tained, but even do not so much as pretend to say, that they have any such right. The pursers must acknowledge, that o them this plea smels very strongly of an uderstandig betwen thes defnders and the storemasters. An easy answer howevr ocurs to it, namely, that your Lordships interlocutor, supersding farther 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 cient interest in the pursuers, not only to bring the action into court, but also to prosecute it till a judgement be obtained. The storemasters were, by this interlocutor, continued in possession of their former usage of driving their sheep through the pursuers 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 no­ thing on their part towards bringing the persons having interest in the peat-road into the field, it became therefore a matter of necesi t y to the pursuers to take that burden upon themselves; and they had the strongest interest to do so, as otherwise the que- stion in which they were engaged with the storemasters would ne­ ver have been brought to a conclusion; and the order of court filling procedure, would in effect have resolved into a judgement in favour of the storemafters 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 that was made by authority of the court in the original process, and hereto annexed, will see the road that is the subject of the present dispute. It is mark­ ed out with adoted line from Raw’s yett, and runs past William Steil’s and Laird Stewart’s to Craigbridge upon Aven water. And your Lordships will observe, that though it stretches further into the muir than the place called Raws yett, it there communicates with a road leading from thence to the Three Dikeneuks, where the storemasters drove their sheep before entering upon the pursuers arable grounds. That this was always a patent and public road, it is by no means incumbent upon the pursuers to estab lish; but they ap­ prehend it must have been so considered from the time the de­ creet arbitral was pronounced in the year 1668. This decreet-arbitral bears to have proceeded upon a submis- sion entered into between William Bannatyne of Craigmuir, John Hamilton of West Kype, Archibald Meikle of St Bridges Chapel William Roger portioner of Kype, John Hamilton of 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 Bonnyhill, John Steel of Castlebrocket, Janies Hamilton in West Dikes, taking burden upon him for the heirs heirs of umquhile Williarn Willock of Highdike's, and William Cochran of Craig, dated 27th March 1663; by which, after men­ tioning that they had belonging to them, as their proper common- ty, the muirs commonly called Kypesridge or Long Kype-muir and that they considered, that the making a division of the north side 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 therein named the division of the said muir, from the crown of Kypesridge downward, and from the one end thereof to the other, and the appropriating to each of them their several deals thereof, according to their respective rights and in- terest; the making of all yetts and roadings requisite for them, or any of them the proportioning of the building of a dike amongst them, and what should be done by each party for keeping good neighbourhood to others in all times concerning the said divi­ sion. The decreet-arbitral, after narrating the nature of the submis- sion as above set forth, next proceeds to appropriate to each of the parties submitters their respective proportions of the common muir proposed to be divided; and particularly mentions the num­ ber of acres, roods, and falls, set off to each: and in the course of making this division of the common muir in these different pro­ portions, the arbiters do likewise set off different roads to be em­ ployed by the persons therein particularly named. Thus imme­ diately after setting of twenty-two acres and three roods to Wil­ liam Cochran of Craig, the decreet-arbitral proceeds in these terms: “ We have laid off and pitted the breadth of a fall at the west side o f the said William Cochran his deal, for an cartgate to Sir Robert Hamilton of Silvertown-hill and his tenants as proper to them for their use; wherein the said John Steel of Windhill shall have liberty and privilege to lead home his elding 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 access from the respective lots allocated to them in the common muir that remained still undivided; they therefore added a clause of more general use, in the following words. “ We have laid off and pitted the breadth of two f alls of ground from the Struther Struther yett, through the said muir, upon the west side of the said John Cochran his deal, as a common roading and cartgate for serving all those who have liberty and privilege, according to all use and wont, to come and go that way.” The Struther yett, whence this road was to go through the muir, is not mark­ ed on the plan, but lies at the north end of the new intake, near the foot of the hill, and close by William Steel’s. This decreet-arbitral in the last place mentions, that the arbi­ ters had proportioned amongst the parties the building of a dike alongst the height of the muir, from the one end to other; and determines the proportion of the said dike to be built by each party; after which it proceeds in the following terms. And we ordain all those interested in the roading and cartgate, from the Struther yett through the said muir, to hing and up­ hold among them an sufficient yett in the new dike, at the up­ per end of the said roading and gate; and we declare, that the grass, and benefit of 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 submitters, it is mentioned as being laid off as a common roading and cartgate, for serving all those “ who have liberty and privilege, according to " all use and wont, to come and go that w a y; " instead of being made only of the breadth of three ells, or of a fall, like the other roads, or gates as they are called in the said decreet-arbitral, it is particularly appointed to be of the breadth of two falls, that is 36 feet. It is plain therefore, that the arbiters had it in view, to set of this as a public road for all those who were in the use of going or coming that way; and as it seems to be an uncontro­ vertible point, that the storemasters have been in the use of dri­ ving their sheep through the muir that still remains to be divi­ ded, they certainly fall to be comprehended under those who had liberty and privilege, according to use and wont, to come and go that way, and of consequence must be intitled to drive their sheep along the road that was thus laid off, when the more northerly part part of the muir came to be divided amongst the different parties interested in it. It accordingly appears, from the depositions of several of the witnesses examined in the original process brought by the store- masters, and allowed to be repeated in this process, that droves of sheep had been in use of passing by this road Andrew Wilson senior in Kype, after mentioning his having observed droves of sheep passing on the west of Bonnyhill in their way to Strathaven, depones, p. 18. E, “ That he has observed sheep in droves appearing at the height in Kypesridge hill, about 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 Craigbridge.” The Hannimuir yett though not particularly pointed out in the plan taken by authority of the court, appears, from another plan in process, annexed to a petition for the memorialists of the —23d December 1768, to lie about half-way between Laird Stewart's and Craigbridge. W illiam Young depones, p. 20. D, “ That he has known droves of sheep passing from Kypesridge hill, by the house of John Stewart portioner of Kype, and by Hannimuir y ett to Craigbridge and Strathaven, in their way to Kilbryde market, and has assisted in driving these sheep down from the top of the h i l l 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 Avendale, and the remainder belonged to James Thomson of Cumberhad,ncoftlsLg."T witness in the after part of his deposition, p. 21. H. depones That while he was driving sheep in the character of drover, and coming from M u irkirk to this common peat-road, and so a- long to Glasgow by Strathaven and Kilbryde he was inter- rupted by the proprietor of Craigmuir; upon which the pro- prietor of Craigmuir urged a complaint before the commissarv ofGlasgwinthedp,rz." This deposition is very strong, and shews, that he use of the road in question was by no means confied to the neighbouring proprietors;on the contrary, part of the shep to which e de-pones came from a great distance, and belonged to Thomson of Cumberhead • f- “ I- * •Cumberhead, the very place which the storemasters point out as the general rendezvous of the sheep belonging to the parishes of Douglas, Lesmahagow, and Muirkirk. William Granger depones, p. 24. I, “ That while he was te­ nant in Auchrobert, he drove his sheep one year westward from the top of Kypesridgehill, down to the house of John Stewart, by the peat-road, and from thence to the Hannimuir yett, and so to Craigbridge, in their way to Kilbryde by Strath­ aven.” And p. 25. E, depones, " That he has likewise seen some few sheep going by the peat-road John Stewart’s, and Hannimuir yett, in their way to Kilbryde market.” Thomas Donald depones, p. 22. C, “ That one time when Kypes water was so high as sheep could not pass, he saw the droves of sheep go by the house of John Stewart, by Craig- muir and Craigbridge, through Strathaven to Kilbryde.” John Semple depones, p 30. A, " T hat he has seen droves, both small and great, of sheep palling down the common peat-road, for the tenants of Mr Lockhart and Kype; and which road came down by John Stewart’s, from thence to Hannimuir yett, Craigbridge, and Strathaven, in their way to the annual fair at Kilbryde.” John Young depones, p. 28. C, " That he has seen droves of sheep, going to Kilbryde market, come over the Kypesridge­ hill, down the peat-road to John Stewart’s and Hannimuir yett." This last witness, who is son to the before-mentioned William Young, was likewise examined in this process, and confirms the account given by his said father with regard to the interruption he met with from the proprietor of Craigmuir. And depones, p. 6. C, of new proof, “ That when he was about sixteen years of age, he saw a drove of sheep belonging to William Young, his father, stopped below John Stewart’s, and upon the ground of James Stewart of Craigmuir, on the peat-road leading to Kilbryde market; but that the sheep went forward to Kilbryde by that road: That there was a scuffle or fight, and some ill names given, at stopping of the said sheep; upon which the parties went to Glasgow, the deponent’s father being pursued by James Stewart. Depones, That he neither knows, nor ever heard, of any other droves being stopped upon the peat-road, And being interro­ gate for the defenders, depones, he has known shep belong- ing ing to Mr Veitch in Muirkirk brought down the peat-road by Craig­ bridge to Kilbrydemarket. Archibald Law in Netherfield, the only other witness adduced for the pursuers in the present process, likewise mentions his ha­ ving seen droves of sheep come along the peat-road in question. This witness depones, “ That he has lived at Netherfield these twenty-two years past, about two miles from the peat-road in question: That he lived seven years at Kypesridge before he went to Netherfield; and preceding that time he lived within half a mile, or thereby, from the said peat-road in question: That the said peat-road goes or leads, on a straight line, from Raw’s yett to Craigbridge, by Laird Stewart’s byre. And de­ pones, That while he lived hard by the peat-road, three roads were used, viz. that a pickle or small drove of sheep sometimes came down from Little Kype, by the Yardbent, to the Sheel- ing-road head; by another road large droves were brought from the Three-dike-nooks to the said Sheeling-road head; and there were likewise droves, sometimes more, sometimes fewer, brought alongst the peat-road from Raw’s yetts to Craigbridge: That at this time there was not so much work about the roads: That every tenant or possessor in the neighbourhood of these roads made all the help they could to get the sheep past their own corns, and to let them pass." This witness indeed adds, “ That the droves brought from the Three-dike-nooks to the Sheeling- road head were considerably larger than the pickles brought by the Little Kype, or those brought by the peat-road.” But as he gives a very good reason for this, viz. that there was more open ground, and less corn to drive them among; so it is sufficient for the pursuers, that droves of sheep were frequently brought by the peat-road without being interrupted. And this witness according­ ly depones, “ That he never knew or heard tell, that any droves were stopped upon the peat-road." In opposition to this proof, the defenders have adduced two witnesses, Claud Muir carrier at Sandyford, and John Muir shoe- maker in Strathaven. Their depositions, however, seem to be no wise material. They both indeed say, that they never knew the peat-road in question used as a drove-road, or public road. And the first of them depones, “ That he never knew any sheep driven to or from Kilbryde by the road in question, except the sheep belonging to John John Cochran of Struther, John Stewart of Kype, and Robert Meikle in Raws, three of the proprietors of Kypesridge or Long Kype, who the deponent is certain have the sole privilege of travelling that road for the purpose of driving sheep and cattle; and that he never knew the road in question used for any other purpose than that of driving peats and turf, and the said pos- sessors of Kvpesridge driving their cattle as aforesaid.” T heir negative depositions cannot, however, counterbalance the positive testimonies of the other witnesses; and the pursuers must observe, that Mr Claud Muir the carrier has shown himself rather too zeal­ ous in the defender’s service in that part of his oath above in- serted, where he says he is certain, that John Cochran of Struther, John Stewart of Kype, and Robert Meikle of Raws, have the sole privilege of travelling that road for the purpose of driving sheep and cattle. It is believed, that the other defenders who appear in this process will not subscribe to an opinion that is exclusive of their interest in that respect. These witnesses have likewise been made to describe the road in question; and as from their acount of the matter, it seems to be extremely narrow in some particular places, it is supposed that the defenders mean to infer, that it must be considered as a mere private road, and unfit to admit of droves of sheep passing alongst it. But however this road may have been narrowed of late years, by inclosures or other incroachments, it appears from the de­ creet-arbitral, that it was originally laid off of a very considerable breadth, no less than two falls or 36 feet, which must have been sufficient for every purpose of a public road; and it accordingly appears, that the inclosures by which it has now been narrowed have only been made of late years; at the same time your Lord- ships will observe, that these inclosures lie all below, or to the north of Laird Stewart’s; and although by tilling the ground to the south, the road laid off by the decreet-arbitral may at times be incroached upon, the defenders cannot avail themselves thereof; and as the road from the Struther yett southward through the muir was, by the decreet-arbitral, appointed to be of the breadth of 36 feet, it is from thence apparent, that the road going from the said Struther yett northward to Craigbridge could not be of less breadth. It is therefore of no moment that this part of the road may now be narrowed by inclosures, which, however, will pre­ vent vent the defenders from suffering any damage from the storema- sters being allowed to go that way with their sheep. The pursuers do therefore submit it to your Lordships, that this road neither was nor could be considered as a mere private road, in which the persons who had a right in the commonty were a- lone interested; but as a patent and common road to every person who had occasion to travel through Kype’s muir. And it is a cer­ tain fact, that none of the 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 opposi- tion they now maintain, or at least put into their heads that they had a right to maintain that opposition; and it accordingly ap­ pears that the defenders did lay great stress upon certain passages in the papers given in by the storemasters in the original process, in which they disputed, or at least doubted, their right to use this peat-road: but the defenders cannot avail themselves in the pre­ sent state of the question of any arguments that were mentioned on 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 possession whereof they alledged they had enjoyed for time immemorial. The storemasters 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 start difficulties, when the pursuers pointed 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 bellowed any right upon them. But to this a sufficientanswer has already been given. So far as the arbiters pitted off private roads for the use of individual parties to the submisio n, no other person can found upon the decreet-arbitral; but in laying off the road in question, through the new intake, the ar­ biters had clearly in view the interest of others besides these parties, viz. all thole who had liberty anti 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 di­ vided, because, by other parts of the decreet-arbitral, care was taken taken to give every one of them access to the remaining part of the muir that continued still in common, by pointing out roads for such of them whole lots were surrounded by the properties of the common assigned to their neighbours, and by declaring, that the others, to whom no such roads were particularly given, should make roads for themselves out of their own deals 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 parties-submitters so much as named, except John Cochran, upon the west side of whose deal the road was laid of. Besides, the pursuers predecessors or authors were parties to the submission, and of course they have an interest in this peat-road themselves, and are well intitled to insi st that it shall be subser- vient to the public use for which it was destined by the arbiters, and which, by being laid off of so great a breadth, must have made their proportions of the divided common less than they other- wise would have been. The defenders further founded upon the clause, ordaining all those interested in the reading and cartgate, from the Struther yett, to hing and uphold amongst them a sufficient yett in the new dike, at the upper end of the said reading and gate, as af­ fording satisfying evidence, that the road was designed to be con­ fined merely to the use of the proprietors, parties to the submis- sion, and which the arbiters could not have done if any persons had been interested in the road, who were not parties to that sub- mission, 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 arbi­ ters accordingly proportion 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 reading and cartgate; and it was most proper to order that to be done at the expence of those of the parties, whose divisions, or lots, lay upon the side of this road, or who were to have access to the muir by the Struther yett, which, from the decreet-arbitral, 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, seeing that it ends in the Kype muir, which is an uninclosed heath, where there is no road whatever. But here the defenders do not attend to that state of the que­ stion stion which has given occasion to the present action. The pur­ s uers do heartily agree with the defenders, that these storemasters have no ju st right to drive their sheep through this open muir- g round; and that, on the contrary, they ought to proceed im­ mediately from Cumberhead to the great road that leads from Douglas to Strathaven, by Logan bridge. But the storemasters consider matters in a different light: they insi st, that they have been in the constant use of driving their sheep through this muir- ground to the Three Dikeneuks; and that they have a right to do so: and if your Lordships are of opinion with the stone masters 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 the Three Dikeneuks to Raw’s yett where it joins the peat-road in question. ' ’ It was further said, That appearance has been made in this pro- cess for proprietors of grounds lying to the north of the Struther yett, from whence the road in question is pitted of southward by the decreet-arbitral, and that these persons have a right to prevent the sheep from being drove through their. grounds. But to this it is answered, That there is not a single proprie- tor of ground on the road betwixt Craigbridge and the top of Kypesridgehill, that was not a party to the submission 1663? on which the decreet-arbitral proceeded; and the reason why the road laid off by the decreet-arbitral was made to commence only at the Struther yett, or noth end of the new intake was, that there was formerly a suficient road northward to Craigbridge, and it was only necessary to extend it southward through the new intake to the common muir. It would therefore be absurd to suppose, that those who had a right to come from Kypesmuir to the Struther yett, could be prevented by the pro­ prietors of the grounds to the north thereof, from continuing their passage by the road formerly used on to Craigbridge; and your Lordships will accordingly see from the plan, that the road in question is not made to stop at the Struther yett, but is conti­ nued on all the way to the faid bridge, without the appearance of any interruption. The pursuers think it unnecessary to detain your Lordships longei rhey apprehend, that upon the supposition of the store­ masters being intitled to drive their sheep to the Three Dike­ neuks, it is by far more reasonable that they should proceed from thence to the haws yett, and so down the peat-road to Craig- bridge, than to go immediately down through the pursuers arable grounds to the Sheeling-road head; and are hopeful that you will have no difficulty of declaring and decerning accordingly. In respect whereof, &c. ALEX WIGHT