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Scottish Court of Session Decisions >>
Liviston of Pantaskin v The Earl of Lithgow and Calander. [1699] 4 Brn 431 (11 January 1699)
URL: http://www.bailii.org/scot/cases/ScotCS/1699/Brn040431-0855.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
Liviston of Pantaskin v. The Earl of Lithgow and Calander
Date: 11 January 1699
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Rankeilor reported Michael Liviston of Pantaskin, against the Earl of Lithgow and Calander, anent the right of winning coals in the muir of Falkirk. Pantaskin founded his right on this ground, That, by his predecessor's charter from the Earl of Calander, superior, in 1644, he had these lands feued to him, cum carbonibus et carbonariis; and he offered to prove this part of the muir, where he had put down his sinks, was part and pertinent of these lands.
Answered,—By an old contract in 1695, between the then Lord Liviston and Pantaskin's author, the muir was divided betwixt them by fixed meiths and marks, with an express reservation of the coal to the Lord Liviston; and so, being separatum tenementum, it cannot be part and pertinent.
Replied,—This being only a personal contract, whereunto neither party can connect a progress, it is now prescribed, and nothing followed on it; and nothing but a charter and seasine can prove it to be a separate tenement.
Duplied,—’Tis at least a predial servitude, conform to which, their possessions in the muir having been ever since regulated, it must yet be the rule; and offers to prove Calander's predecessors have been in use to win coals in this very ground.
The Lords, before answer, ordained both parties to produce their writs, to instruct the progress, and to prove what deeds of possession, as to working the coal, and the acts of interruption; that it might appear whether this controverted muir was a separate tenement, or a part and pertinent of Pantaskin.
