Prompted, no doubt, by Scottish Green Party MSP Patrick Harvie’s proposed amendment to the Land Reform Bill to repeal the Division of Commonties Act 1695, the Scottish Government (SG) announced on 27 January that it would be referring “the issue of Common Land” for review by the new Scottish Land Commission being set up by the bill. This review would also cover common good land owned by local authorities. At the same time, the SG also said it was asking the Scottish Law Commission to “review the Division of Commonties Act 1695 with a view to its repeal.”
There’s a lot of confusion about common land in Scottish law and in this note I’m going to try and bust some of the myths.
Common good, common grazings and commonties
First, “common land” is not a term of art in Scottish law so what is it that the Land Commission is going to be reviewing?
As the SG announcement hints, there’s a sub-set of it called “common good”. This isn’t “common” land in the sense of belonging to everybody (or nobody). It belongs to local authorities in exactly the same way as schools, libraries etc. do except that, in administering common good, the LA must “have regard to the interests of” the inhabitants of the former (pre-1975) burgh the CG used to belong to.[1] And in the case of what’s misleadingly known as “inalienable” common good, the LA needs the permission of the courts to sell it or change its use.[2] I’ve written about common good before (here) and am not going to say anymore about it in this article.
Then there are crofters’ common grazings (areas of land over which neighbouring crofters have the right to graze their stock in common). I doubt they’ll be included in the review because they’re already heavily regulated and anyway fall under the remit of the Crofting Commission.[3] So, apart from local authority owned common good, the focus of the Land Commission’s review can only be commonties. These are what the Division of Commonties Act 1695 applies to.
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| Dunbar Common, East Lothian as seen on 1878 OS 1 inch map |
Commonties were areas of land – often, though by no means invariably, upland and quite extensive (sometimes thousands of acres) – which were not cultivated but used in common by local farmers, principally as summer grazing for their livestock but also as a source of fuel (peat) and resources such as wood and stone for building. Note that, although “commonty” is the legal term of art, the areas of land concerned were usually called “commons”, e.g. Dunbar Common (above). Anyway, it’s often said that commonties were held in common by the ordinary folk of a locality and that the 1695 Act was passed to enable them to be expropriated and divided up between neighbouring landowners; and that such commonties as remain undivided (only very small areas now) remain the common property of the general public in their locality.
This is not true. Historically, commonties were owned jointly by neighbouring landowners. The term of art for the owners sharing a commonty is “commoner” but as that word is apt to provoke confusion with expressions such as “common folk” etc., I’m going to call them co-owners. They owned their commonty as adjuncts to their estates rather as the owners of flats in a tenement own the back green in common. What the 1695 Act did was create a procedure whereby any co-owner could apply for a commonty to be physically divided such that, after the division, each would have exclusive ownership of a discrete portion of it. Continuing the tenement analogy, imagine if there were a procedure whereby the back green could be divided such that each flat owner had his own exclusive portion as opposed to a share of the whole.
Thus, the 1695 Act did not transfer ownership of commonties to landowners: landowners already owned commonties and the Act merely rearranged their rights in them. If you’ll excuse the somewhat artless graphic below, the upper image below shows three estates, A, B & C, sharing a commonty which they surround. After the division, the lower image shows how each estate has its own part of the former commonty.
Don’t take my word for it.
So – at the risk of labouring the point – commonties were common only in the sense of being shared in common by neighbouring landowners: they were not owned by (or for the benefit of) the general public.[4] But because this appears to be controversial in some quarters, I had been going to illustrate the point by quotations from the institutional writers.[5] Except I couldn’t find any. At least I’m not alone in this as the opinion of the Lord Justice-Clerk (Alness) in what I believe to be the last case in which anybody attempted to invoke the Division of Commonties Act 1695, Macandrew v Crerar in 1929[6] shows:-
"It is difficult to find, in the institutional writers or in the early cases, a clear and comprehensive definition of commonty. Probably its features were familiar then, though they are archaic now." [7]
Lord Anderson, however, was a bit more explicit:-
"The text-writers distinguish the three cognate rights of common property, common interest, and commonty (Bell's Prin., sections 1071—97; Bell's Dict., sub vocibus; Rankine, Land-Ownership (4th ed.), pp. 585-609). These authorities and the others to which we were referred at the debate seem to establish that a commonty is a piece of ground belonging to one or more proprietors which is merely an accessory—an accessory both as regards title (“cum communio,” “with commonty,” etc.) and user— to a neighbouring estate or estates held in severalty."
Lord Anderson, however, was a bit more explicit:-
"The text-writers distinguish the three cognate rights of common property, common interest, and commonty (Bell's Prin., sections 1071—97; Bell's Dict., sub vocibus; Rankine, Land-Ownership (4th ed.), pp. 585-609). These authorities and the others to which we were referred at the debate seem to establish that a commonty is a piece of ground belonging to one or more proprietors which is merely an accessory—an accessory both as regards title (“cum communio,” “with commonty,” etc.) and user— to a neighbouring estate or estates held in severalty."
Servitude commonties
At this point, I can put off no longer muddying the waters so clearly elucidated in the foregoing with a complication: there also existed a different type of commonty. In what I’m going to call a “servitude commonty” (to distinguish it from a “co-ownership commonty” belonging to multiple co-owners as described in the preceding paragraphs), the land belonged to one landowner but other neighbouring landowners had servitudes (Scottish equivalent of easements) of grazing and/or cutting peat on it. And just to make life even more complicated, it was possible (indeed very common) to have “hybrid commonties”, that is co-ownership commonties which were also subject to servitudes of grazing/peat cutting held by third parties.
A pure servitude commonty could not be divided under the 1695 Act. In a hybrid commonty, the holder of a servitude couldn't institute a process of division but if one of the co-owners did, the servitude holders would be awarded a share of exclusive ownership of the commonty in lieu of their servitude.[8]
From hereon in, I’m going to use the word “heritor” to apply to a landowner having the use of a commonty whether he be a co-owner of it or a third party holding a servitude over it.
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| Extract from the form of words for a Summons of Division of Commonty from Beveridge's "A Practical Treatise on the Forms of Process" 1826 |
Where did the expropriation myth come from?
It was the heritors’ tenants who used commonties on a day to day basis. And only their tenants – not anybody else’s tenants or other members of the public. Thus, when a person ceased to be a tenant of a particular heritor, his right to use that heritor’s commonty ceased: henceforth he would have to use the commonty attached to the estate of his new landlord.
It was the heritors’ tenants who used commonties on a day to day basis. And only their tenants – not anybody else’s tenants or other members of the public. Thus, when a person ceased to be a tenant of a particular heritor, his right to use that heritor’s commonty ceased: henceforth he would have to use the commonty attached to the estate of his new landlord.
Anyway, note that no tenant was deprived of anything by division of a commonty. Go back up to the diagram above and let’s imagine that each of the three estates, A, B & C, had four tenants, that the commonty was 1,200 acres and that, after the division, each estate’s part was 400 acres. The ratio of acres of commonty per tenant before the division was 100 (1,200/12) and the ratio of acres of former commonty per tenant after the division was also 100 (400/4). So where does the popular idea that common folk were dispossessed by division of commonties come from?
Well, if you look at the 1695 Act, you see it narrates it was passed “for preventing the discords that arise about commonties”. No doubt some discords were settled in the early years but the Act really came in to its own about a hundred years later in a totally different socio-economic context: the Agricultural Revolution of the late 18th/early 19th century.
The less well known flip side of the Industrial Revolution, this was the transformation of agriculture from subsistence (growing your own food) to commercial (growing food to sell to the new urban population not able to grow its own because it was working in factories). Revolutions seldom lend themselves to description in a couple of sentences but three themes of the agricultural one were, firstly, enclosure of land into the regular shaped fields and parks we associate with the today’s farming landscape: division of commonties fitted into that trend perfectly. Secondly, expansion of the land under cultivation involved commonties coming under the plough for the first time. So the 1695 Act passed for one purpose in a previous era (preventing discords) turned out to be of more use for an entirely different purpose in a later era (furthering the Agricultural Revolution).
The third theme of the Agricultural Revolution relevant here was that improved agriculture involved far fewer tenants as farms came to be worked by single tenants (as today) rather than communities of joint tenants as previously. In a process known in the north and west as “the Highland Clearances” but which affected the rest of the country just as much, many lost their foothold on the land and became landless labourers for the surviving tenants or emigrated to the cities or abroad. Thus, at the same time as commonties were being divided, people were being dispossessed. But the former did not cause the latter any more than any other feature of the Agricultural Revolution, whether Small’s improved plough or steam threshing machines.
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| Glenearnhill - a new farm established on a division of Forgandenny Commonty and since abandoned |
Legacy commonties: peat mosses, bleaching greens and limestone quarries
Practically all commonties had been divided by the third quarter of the 19th century. In the words of Professor Rankine (quoted with approval by Lords Ormidale and Hunter in Macandrew): “the process of division instituted at the end of the seventeenth century has gone so far as to leave few traces of commonable land in any part of the country.” [9]
Practically all commonties had been divided by the third quarter of the 19th century. In the words of Professor Rankine (quoted with approval by Lords Ormidale and Hunter in Macandrew): “the process of division instituted at the end of the seventeenth century has gone so far as to leave few traces of commonable land in any part of the country.” [9]
Such patches of commonty as remain today are almost invariably areas deliberately left undivided during processes of division for particular purposes. The most common was as a moss (area for cutting peat for fuel: the 1695 Act specifically refers to this) but other examples are occasionally found such as ground left in commonty for use as a bleaching green (an area where laundry was spread out on the ground, not just to dry but – in the days before chemical detergents – to be bleached white by the action of the sun) or a quarry [10]. It’s worth reminding ourselves again that the only people entitled to use these legacy commonties (as I’m going to call them although it’s not a term of art) were the heritors who shared them and their tenants, not anybody else or the public at large. Anyway, what is their legal status today considering that bleaching and (outside the west highlands and islands where there never have been commonties) cutting peat has long since ceased to be practiced?
First principles suggest that rights held in a legacy commonty by servitude holders will have prescribed (been extinguished) after 20 years non-use while the rights of the co-owners will remain unimpaired due to the fact that, in contrast to a right of servitude, the right of ownership never prescribes.[11] In the case of a pure servitude commonty, the owner’s rights will have re-surfaced, unimpaired by the servitudes which are now prescribed. And in the case of a co-ownership or hybrid commonty, it ought to be possible for one of the co-owners now to tidy up the loose end of the unused legacy commonty by raising a new process of division. But does the case law bear this out?
The Red Moss of Balerno
I don’t pretend to have read every single case on commonties and within the limits of a not very scientific enquiry, I’ve only been able to find two concerning legacy commonties.
The first is Johnson v Johnston in 1831.[12] It concerned Balerno and Harlaw Common which had been divided in 1767 but with 45 acres called the Red Moss declared to “remain common, for the use and benefit of the forenamed several parties concerned [i.e. the heritors], as formerly, but decerned them not to break in or encroach on each other's haggs [i.e. peat banks]”. Despite that injunction, however, the tenants of some of the heritors had “dug peats in any part of the moss promiscuously, without regard to the haggs originally marked off for each heritor … every one digging, or pitting for peats, or other purposes, on any part of the said Red Moss, which he thinks proper to appropriate to himself,”. This looked like exactly the sort of “discord” the 1695 Act was passed to obviate so one of the heritors, Johnson of Muirbank, raised an action of division of the moss.
The Lord Ordinary (judge of first instance in the Court of Session) rejected the application. His reasoning was that you could only divide a commonty once: after one process of division, the 1695 Act was “exhausted” so far as that commonty was concerned. Muirbank appealed to the Inner House (appellate division of the Court of Session) where four judges adhered to the Lord Ordinary’s decision to refuse division of the moss. Three of them, however, reached this conclusion for a different reason, namely, that, as the Red Moss was still a peat moss in active use as such, there was no reason to interfere with the original decree of division decerning it to remain in commonty: breach of the condition of the decree (no encroachment on others’ haggs) was not reason enough to overturn it completely. Crucially, however, two of these three judges agreed that, if and when the moss ceased to be used as such, a division would then become competent. The fourth judge, Lord Gillies, on the other hand, agreed entirely with the Lord Ordinary that no future division of the moss could ever be competent.[13]
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| The Red Moss of Balerno - you can make a virtual visit to a legacy commonty here |
The second case on legacy commonties is Milne v Inveresk Parish Council [14]. Inveresk Haugh was a small hybrid commonty of 29.5 acres by the River Esk co-owned by eight heritors and also subject to servitudes of bleaching held by feuars [15] in the village of Inveresk. In 1824 it was divided between the co-owning heritors in terms of a decree which also confirmed an arrangement whereby, to satisfy the claims of the servitude holders, an area of 2,025 square yards at the foot of Windy Wynd was left in commonty for the purposes of a bleaching green “for the use … of the inhabitants of the village of Inveresk in all time coming”.
In 1899 Inveresk Parish Council [16] put up two park benches on the green. One of the eight co-owning heritors, Sir Archibald Milne, objected to this and raised an action to have the offending benches removed. Despite the fact that no bleaching had been carried out on the green for more than forty years, Sir Archibald did not fight the case on the basis that the servitudes had prescribed and that the green had therefore reverted to the co-owners as their unencumbered common property: rather, he accepted that the villagers’ bleaching rights still existed but argued that the setting up of park benches was not a necessary incident of them. The Lord Ordinary reluctantly agreed whereupon the Parish Council appealed to the Inner House. The three judges there took a different view and held the benches were a reasonable incident of the bleaching servitude and thus unobjectionable – in the words of Lord Trayner: “I fancy people get tired washing sometimes, and may sit down …”
That was enough for the decision of the case but of more interest here were some of the judges’ obiter dicta (remarks not essential to the decision and therefore not legally binding). Lord Trayner tentatively suggested that, after the division, the co-owning heritors no longer owned the bleaching green as legacy commonty. But the other two judges expressly dissented from that and not even Lord Trayner went so far as to suggest it was owned instead by the inhabitants of Inveresk. Of more significance, however, was Lord Moncreiff’s remark:-
In 1899 Inveresk Parish Council [16] put up two park benches on the green. One of the eight co-owning heritors, Sir Archibald Milne, objected to this and raised an action to have the offending benches removed. Despite the fact that no bleaching had been carried out on the green for more than forty years, Sir Archibald did not fight the case on the basis that the servitudes had prescribed and that the green had therefore reverted to the co-owners as their unencumbered common property: rather, he accepted that the villagers’ bleaching rights still existed but argued that the setting up of park benches was not a necessary incident of them. The Lord Ordinary reluctantly agreed whereupon the Parish Council appealed to the Inner House. The three judges there took a different view and held the benches were a reasonable incident of the bleaching servitude and thus unobjectionable – in the words of Lord Trayner: “I fancy people get tired washing sometimes, and may sit down …”
That was enough for the decision of the case but of more interest here were some of the judges’ obiter dicta (remarks not essential to the decision and therefore not legally binding). Lord Trayner tentatively suggested that, after the division, the co-owning heritors no longer owned the bleaching green as legacy commonty. But the other two judges expressly dissented from that and not even Lord Trayner went so far as to suggest it was owned instead by the inhabitants of Inveresk. Of more significance, however, was Lord Moncreiff’s remark:-
"... the ground in question was absolutely dedicated to the public."
He can’t have meant the public generally but rather the inhabitants of Inveresk. Lord Young was careful to make the distinction, adding:-
"This washing and bleaching-green is irrevocably dedicated to the use of the inhabitants of Inveresk in all time coming, and that dedication will remain in force although the green may not have been used as a washing and bleaching-green for some time; the inhabitants are entitled to resume the use if they please."
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| A bleaching green in Ireland - picture from National Library of Ireland |
Conclusions from the cases
What conclusions can we draw from these two cases about legacy commonties?
What conclusions can we draw from these two cases about legacy commonties?
The Balerno case appears to be authority, albeit obiter of a majority, that a legacy co-ownership commonty can be divided under the 1695 Act once the use for which it was reserved from the original division has ceased. But is the Inveresk case authority, albeit also obiter of a majority, for the proposition that, after division, the rights of servitude holders in legacy commonties are no longer servitudes vulnerable to negative prescription (extinction through 20 years’ non-use) but rather are elevated to some alternative, innominate and apparently imprescriptable right?
I don’t think so. The possibility of the inhabitants’ rights having been servitudes which had prescribed wasn’t argued in court [17] and the case proceeded on the concession that these rights, whatever they were, remained intact so the court wasn’t making a ruling on their status.[18] I think the most that can be said for the Inveresk case is that it implicitly recognised that the original decree of division of the commonty, which didn’t mention servitudes of bleaching specifically but rather use as a bleaching green in all time coming, may not have been apt to create an imprescriptable real right but was nevertheless res judicata between the parties involved and would remain so until someone explicitly asked a court: “Does it literally mean all time coming or only for as long as not lost by negative prescription?”.[19] In other words, the Inveresk case is a decision on its own peculiar facts rather than establishing a general principle.
So a reasonable conclusion from these two cases is that, subject to looking carefully at the wording of the decree of division in order to avoid being trapped by a plea of res judicata, there’s nothing in them to cause one to depart from what first principles would suggest, namely, that the rights of servitude holders in legacy commonties will prescribe (be extinguished) after 20 years’ non-use and co-owners can pursue a division after the use for which the land was retained in commonty has ceased. And the converse seems to be that division of a legacy commonty is precluded so long as any communal use continues.
Finding the owners of legacy commonties
There’s a purely practical problem with most legacy commonties in the 21st century given they’re mostly abandoned: identifying the co-owners.
Back when they were still in use as mosses (or bleaching greens or whatever), identifying the co-owners of a legacy commonty was, in principle, easy: ownership was established by possession. Thus, if only the tenants of the estates of A, B & C had cut peats in a moss during the last 40 years, then the owners of these estates were the co-owners.[20] But without possession (i.e. use) as a pointer, identifying the co-owners is more difficult. Title deeds are unlikely to be of any help because they seldom name commonties associated with estates. Indeed, in my almost 20 years experience as a rural property lawyer, I can only ever remember seeing one commonty named in present day title deeds: by coincidence it was the Red Moss of Balerno!
Assuming there’s no clue in the deeds, then, one has to look for evidence of past ownership. Absent any more recent local historical knowledge, the most cogent evidence is likely to be the decree of division. Many are retained in the National Archives of Scotland and that will give you the co-owners at the point of division. From there, it should be relatively easy to find their title deeds in the Register of Sasines and trace the ownership down to the present day.
The principal difficulty that will inevitably be encountered in this exercise is that these owners’ estates will since have been divided up: which of the successor properties will carry the right(s) to the legacy commonty? First principles suggests the following guidelines: any property split off will carry a share of the commonty if it has a Latin clause in its deeds cum communis (“with commons”) or an English equivalent such as “with a share of the commonty [or moss or bleaching green or whatever the legacy commonty is] …” (whether or not named). Such clauses in deeds effecting sales off from larger properties after the third quarter of the 19th century (which is when the big estates began to be divided up in earnest) are, I would suggest, rare: I can’t remember ever having seen one in my time as a practising rural lawyer. And remember the possibility that a property which started off with a share in a commonty could lose it if possession is yielded to other properties.[21]
Any split-off without a reference to commonties in its deeds will not have any right to a legacy commonty unless the owners and/or tenants of the land sold off have possessed – i.e. actually used – the commonty for the prescriptive period.[22] The likelihood of that having happened can be judged from the date and nature of the split-off: it’s conceivable that a farm in East Lothian sold off from an estate in, say, 1880 may have acquired a title to a share of a legacy commonty consisting of a peat moss by prescriptive possession but it’s almost inconceivable in the case of land sold off for forestry in the 1940s or housing in the 1970s.
Note that, although I've made the exercise of tracing the present day owners of legacy commonties sound easy, I’ve never attempted it and I’m sure it’s not at all easy in practice! But the preceding paragraphs show the approach to be essayed. In other words, one shouldn’t immediately default to the assumption that a legacy commonty has fallen to the Crown as bona vacantia (abandoned or ownerless property) just because nobody locally can remember who owned or used it.
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| Latin clauses and predations by the English brought to bear in Haining v Selkirk |
Should the 1695 Act be repealed?
The Act is perceived in some quarters as a means whereby property that is in some sense public can be abstracted into private hands. But as I’ve attempted to show, it’s no such thing: it was originally only a means whereby rights in property which was already private were rearranged amongst its owners. And latterly, in relation to legacy commonties, the case law seems clear that the Act can’t be invoked while the use for which land was left in commonty continues. Once properly understood, therefore, it’s hard to see the public policy impetus for repeal.
The Act is perceived in some quarters as a means whereby property that is in some sense public can be abstracted into private hands. But as I’ve attempted to show, it’s no such thing: it was originally only a means whereby rights in property which was already private were rearranged amongst its owners. And latterly, in relation to legacy commonties, the case law seems clear that the Act can’t be invoked while the use for which land was left in commonty continues. Once properly understood, therefore, it’s hard to see the public policy impetus for repeal.
Given that the last time anybody attempted to invoke the Act is believed to have been in 1929[23], it’s fair to say there’s no great demand for its services. But a situation highlighted a few years back by veteran land reform campaigner turned Scottish Green Party parliamentary hopeful Andy Wightman demonstrates how the 1695 Act could conceivably have a role to play in the 21st century.
Andy publicised the case of a 33 acre (13ha) legacy commonty in the middle of Scottish Power’s Black Law windfarm near Carluke - see here. It appeared SP had deliberately avoided planting turbines on the commonty because it was not known who owned it. But supposing it did have known co-owners (which is not impossible: after all at least one person knows he's a present day co-owner of the Red Moss of Balerno). And suppose a majority of the co-owners were in favour of siting a turbine on it with just one against? It’s a principle of Scottish law, equally applicable to commonties as to other species of jointly owned property, that majority rule doesn’t apply: any change in management requires the unanimous consent of all the owners. Special rules apply to property jointly owned by married couples but in the case of property belonging to, for example, siblings, the remedy in the event of dispute between co-owners is division and sale – that is that the property be physically divided between them or, if that’s not practicable (as in the case of a house, for example), that it be sold and the proceeds divided. In the case of a commonty, the remedy is division under the 1695 Act so one of the co-owners of the commonty in the windfarm in favour of a turbine on it could have pursued a division so as, in effect, to isolate the dissenter.
And thus 17th century legislation facilitates a socially desirable 21st century green energy development.
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| Carluke Commonty among the turbines of King's Hill Windfarm |
Footnotes
[1] Local Government (Scotland) Act 1973, s.222(2)
[2] Ibid, s.75 as amended by Land Reform (Scotland) Bill, cl.68.
[3] Crofters (Scotland) Act 1993, s.1(2)(a)(iv)
[4] The same is true, incidentally, of commons in England (where similar misunderstandings also prevail) except for the most famous common of all, Wimbledon, which is explicitly managed for public recreation under its own special legislation.
[5] 17th-19th century writers on Scottish law whose works are held to be authoritative statements of the law.
[6] 1929 SLT 540
[7] A similar sentiment was expressed by the sheriff-substitute who was upheld in the Inner House on appeal (“The institutional writers are rather vague in their definitions of commonty. This may be due to its nature being at the time they wrote more the subject of general knowledge than it is nowadays.”) and echoed by Lord Hunter (“Perhaps he [the sheriff-substitute] might have gone further and said that a definition was not attempted, as it was probably assumed that people were familiar with the nature of subjects that were described and understood as commonties.”)
[8] For authorities for the statements in this paragraph see Stewart v Feuars of Tillicoultry (1739) Mor. 2469 and Lord Wigton v Proprietors of the Muir of Biggar (1739) 5 Bro. Sup. 662.
[9] Rankine "Landownership" p.600. As well as by proceedings under the 1695 Act, commonties might be divided by arbitration or agreement amongst the heritors involved.
[10] As in Trustees of Bonshaw v Duke of Queensberry (1764) M 2481
[11] Prescription and Limitation (Scotland) Act 1973, s.8 & Sch. 3, para (a)
[12] (1831) 10S 70
[1] Local Government (Scotland) Act 1973, s.222(2)
[2] Ibid, s.75 as amended by Land Reform (Scotland) Bill, cl.68.
[3] Crofters (Scotland) Act 1993, s.1(2)(a)(iv)
[4] The same is true, incidentally, of commons in England (where similar misunderstandings also prevail) except for the most famous common of all, Wimbledon, which is explicitly managed for public recreation under its own special legislation.
[5] 17th-19th century writers on Scottish law whose works are held to be authoritative statements of the law.
[6] 1929 SLT 540
[7] A similar sentiment was expressed by the sheriff-substitute who was upheld in the Inner House on appeal (“The institutional writers are rather vague in their definitions of commonty. This may be due to its nature being at the time they wrote more the subject of general knowledge than it is nowadays.”) and echoed by Lord Hunter (“Perhaps he [the sheriff-substitute] might have gone further and said that a definition was not attempted, as it was probably assumed that people were familiar with the nature of subjects that were described and understood as commonties.”)
[8] For authorities for the statements in this paragraph see Stewart v Feuars of Tillicoultry (1739) Mor. 2469 and Lord Wigton v Proprietors of the Muir of Biggar (1739) 5 Bro. Sup. 662.
[9] Rankine "Landownership" p.600. As well as by proceedings under the 1695 Act, commonties might be divided by arbitration or agreement amongst the heritors involved.
[10] As in Trustees of Bonshaw v Duke of Queensberry (1764) M 2481
[11] Prescription and Limitation (Scotland) Act 1973, s.8 & Sch. 3, para (a)
[12] (1831) 10S 70
[13] Though no longer worked, today the Red Moss is a Site of Special Scientific Interest and Scottish Wildlife Trust Reserve due to the importance of its peat resource - see here.
[14] (1900) 2F 283
[15] A feu is, in effect, a lease which exists in perpetuity and has its own terminology: landlord = superior; tenant = feuar; rent = feuduty. Despite the analogy with leases presented here to aid understanding, Scottish law treats a feuar as a proprietor (freeholder) rather than a tenant.
[16] Parish Councils were a tier of local government which was abolished in 1929.
[17] Apart from an oblique reference in the Parish Council’s arguments to the Inner House which I find hard to put in context: “Authorities [presumably referring to authorities being relied by Sir Archibald Milne] drawn from the law of servitudes acquired [note, not “extinguished”] by prescription had no place in a case like the present, where the solum was dedicated expressly to the uses of the community of Inveresk for the purposes specified.”
[18] Just as in Portobello Park Action Group v Edinburgh Council ([2012] CSIH 69) the court did not decide that Portobello Park where the Council wanted to build a new school is inalienable common good: the case proceeded on the assumption that it was because the Council (wrongly in the opinion of some including myself) conceded that it was. Courts do not second guess concessions made by the parties.
[19] Res judicata is Latin for “the thing is decided”, i.e. the matter having been decided in one litigation, it cannot be revisited in a subsequent litigation between the same parties (or between people in the same position, for example subsequent owners of the original parties’ properties). I claim no expertise on the limits of the plea of res judicata but the Haugh of Inveresk case reminds me strongly of the Forest of Birse cases. These concerned hunting rights in the Forest of Birse in Aberdeenshire (by coincidence, a servitude commonty). The Forest belonged to the Earl of Aboyne but the owner of the neighbouring Ballogie Estate, Mr Innes, claimed to own the right of wildfowling over it. In Scottish law, hunting rights can’t be owned by anyone other than the owner of the ground over which they are exercised but in a litigation in 1808 Lord Aboyne was unwise enough to concede that Ballogie did own the wildfowling rights in the Forest and the case was eventually decided on that basis by the House of Lords in 1819. (1819 6 Pat App 444 - see here and scroll down to page 447. Regretting his father’s folly, the next owner of the Forest, the Marquis of Huntly, in 1855 raised a new case against the then owner of Ballogie, Mr Nicol. But the Inner House of the Court of Session sustained Nicol’s plea of res judicata due to the earlier proceedings and thus Huntly’s case was thrown out. ((1858) 20D 374) Undaunted, the next Marquis of Huntly tried again in 1896. This time, he realised that any attempt to deny the existence of Ballogie’s right to wildfowling in the Forest would once again be trumped by a plea of res judicata so he conceded its existence but tried to have it restricted instead. Ballogie entered a plea of res judicata all the same. As it turned out, Huntly failed in his attempt to have Ballogie’s right restricted but in the Inner House, Lord MacLaren, referring to the fact that a right of ownership of hunting over another person’s land doesn’t exist in Scottish law, remarked “I am at a loss to understand what species of right the Court [of Session] and the House of Lords [in the original 1819 case] intended to award to Mr Nicol’s predecessor.” He also remarked that res judicata doesn’t prevent a later court acting as “interpreters of the original decree”. ((1896) 23R 610 - see here). Now, relating all that to the Haugh of Inveresk, one can imagine a judge expressing himself to be at a loss to understand what species of right the original decree of division intended to award to the inhabitants of Inveresk but, acting as interpreter of the decree (which the plea of res judicata doesn’t preclude), going on to decide either that there was implicit in the expression “in all time coming” the additional words “so long as not lost by negative prescription (i.e. 20 years non-use)” or that that expression had to be taken at face value.
[20] Provided there was nothing in the title deeds of A, B & C inconsistent with them owning a share in the commonty such as, for example, the Latin phrase cum pascuis et pasturis which is held to be consistent only with a servitude of grazing a commonty rather than ownership of a share of it: Rankine sup. cit. 601-02; Haining v Selkirk, 1668 M 2459
[21] Thus, suppose property A with a share of a legacy commonty moss is split up into A1, A2 & A3, each with a clause cum communis (or English equivalent) in its deeds. Then suppose that, for whatever reason, the owner and tenants of A1 give up using the moss and their share is absorbed by the owners/tenants of A2 & A3. A1’s share of the moss will be lost after 40 years (after 1879, 20 years) as a result of A2 & A3’s adverse possession.
[22] 40 years until 1879, thereafter 20 years until 1976, since when 10 years.
[23] Macandrew v Crerar, 1929 SLT 540, in which an attempt by a Mr Macandrew to invoke the Act to divide land he owned a share of by Loch Tay failed because the land was held not to be a commonty.
[14] (1900) 2F 283
[15] A feu is, in effect, a lease which exists in perpetuity and has its own terminology: landlord = superior; tenant = feuar; rent = feuduty. Despite the analogy with leases presented here to aid understanding, Scottish law treats a feuar as a proprietor (freeholder) rather than a tenant.
[16] Parish Councils were a tier of local government which was abolished in 1929.
[17] Apart from an oblique reference in the Parish Council’s arguments to the Inner House which I find hard to put in context: “Authorities [presumably referring to authorities being relied by Sir Archibald Milne] drawn from the law of servitudes acquired [note, not “extinguished”] by prescription had no place in a case like the present, where the solum was dedicated expressly to the uses of the community of Inveresk for the purposes specified.”
[18] Just as in Portobello Park Action Group v Edinburgh Council ([2012] CSIH 69) the court did not decide that Portobello Park where the Council wanted to build a new school is inalienable common good: the case proceeded on the assumption that it was because the Council (wrongly in the opinion of some including myself) conceded that it was. Courts do not second guess concessions made by the parties.
[19] Res judicata is Latin for “the thing is decided”, i.e. the matter having been decided in one litigation, it cannot be revisited in a subsequent litigation between the same parties (or between people in the same position, for example subsequent owners of the original parties’ properties). I claim no expertise on the limits of the plea of res judicata but the Haugh of Inveresk case reminds me strongly of the Forest of Birse cases. These concerned hunting rights in the Forest of Birse in Aberdeenshire (by coincidence, a servitude commonty). The Forest belonged to the Earl of Aboyne but the owner of the neighbouring Ballogie Estate, Mr Innes, claimed to own the right of wildfowling over it. In Scottish law, hunting rights can’t be owned by anyone other than the owner of the ground over which they are exercised but in a litigation in 1808 Lord Aboyne was unwise enough to concede that Ballogie did own the wildfowling rights in the Forest and the case was eventually decided on that basis by the House of Lords in 1819. (1819 6 Pat App 444 - see here and scroll down to page 447. Regretting his father’s folly, the next owner of the Forest, the Marquis of Huntly, in 1855 raised a new case against the then owner of Ballogie, Mr Nicol. But the Inner House of the Court of Session sustained Nicol’s plea of res judicata due to the earlier proceedings and thus Huntly’s case was thrown out. ((1858) 20D 374) Undaunted, the next Marquis of Huntly tried again in 1896. This time, he realised that any attempt to deny the existence of Ballogie’s right to wildfowling in the Forest would once again be trumped by a plea of res judicata so he conceded its existence but tried to have it restricted instead. Ballogie entered a plea of res judicata all the same. As it turned out, Huntly failed in his attempt to have Ballogie’s right restricted but in the Inner House, Lord MacLaren, referring to the fact that a right of ownership of hunting over another person’s land doesn’t exist in Scottish law, remarked “I am at a loss to understand what species of right the Court [of Session] and the House of Lords [in the original 1819 case] intended to award to Mr Nicol’s predecessor.” He also remarked that res judicata doesn’t prevent a later court acting as “interpreters of the original decree”. ((1896) 23R 610 - see here). Now, relating all that to the Haugh of Inveresk, one can imagine a judge expressing himself to be at a loss to understand what species of right the original decree of division intended to award to the inhabitants of Inveresk but, acting as interpreter of the decree (which the plea of res judicata doesn’t preclude), going on to decide either that there was implicit in the expression “in all time coming” the additional words “so long as not lost by negative prescription (i.e. 20 years non-use)” or that that expression had to be taken at face value.
[20] Provided there was nothing in the title deeds of A, B & C inconsistent with them owning a share in the commonty such as, for example, the Latin phrase cum pascuis et pasturis which is held to be consistent only with a servitude of grazing a commonty rather than ownership of a share of it: Rankine sup. cit. 601-02; Haining v Selkirk, 1668 M 2459
[21] Thus, suppose property A with a share of a legacy commonty moss is split up into A1, A2 & A3, each with a clause cum communis (or English equivalent) in its deeds. Then suppose that, for whatever reason, the owner and tenants of A1 give up using the moss and their share is absorbed by the owners/tenants of A2 & A3. A1’s share of the moss will be lost after 40 years (after 1879, 20 years) as a result of A2 & A3’s adverse possession.
[22] 40 years until 1879, thereafter 20 years until 1976, since when 10 years.
[23] Macandrew v Crerar, 1929 SLT 540, in which an attempt by a Mr Macandrew to invoke the Act to divide land he owned a share of by Loch Tay failed because the land was held not to be a commonty.
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