Earl of Airlle v Rattray

Subject_ Commonty.— Titles “with parts and pertinents used and wont,” and “with the privilege of sheiling,” held not to import a right of property in a common, unless so explained by the possession had thereupon.

The lands contained in this charter were, in 1699, conveyed to Patrick Ogilvy of Balfour, who was infeft therein, and who, of date 5th June, 1702, feued out to Ogilvy younger of Wester Pearsie, part of them consisting of Tulloch, and the Miltown, mill and mill-lands of Freuchie, now called Eastmill, and thus described in the feu-charter:—

The trustees under this deed thereafter conveyed the lands therein contained in two separate lots of Eastmill and Tulloch to different parties; the latter being disponed, in 1767, to Mercer of Aldie, and the former, in 1769, to James Rattray.

In like manner, Eastmill was, in the disposition thereto, conveyed “With all and sundry houses, biggings, yards, tofts, glennings, grazings, shealings, mosses, muirs, pasturages, privileges, liberties, and pertinents, used and wont, pertaining to the same, and particularly to the priviledge of shealing in the Glen called Finlet.”

Infeftment followed on these dispositions, and the two properties ultimately came by progress into the person of the respondent, Rattray of Kirkhillocks, the terms of the titles being retained as in the dispositions last mentioned. Mean while, in 1714, Patrick Ogilvy of Balfour conveyed to the then Earl of Airlie the whole lands as contained in the charter of 1685, under reservation of the feu-right as to Tulloch and Eastmill constituted in 1702, the description in the conveyance being as follows:—