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Scottish Court of Session Decisions >>
James Peterkin, v The Earl of Moray. [1801] Mor 36_25 (20 May 1801)
URL: http://www.bailii.org/scot/cases/ScotCS/1801/Mor36TEINDS-011.html Cite as:
[1801] Mor 36_25
In a valuation of teinds the proprietor found not to be entitled to any deduction from the rental, on account of having communicated to his tenants the benefit of a servitude of digging peats for their own use, over the moss of a neighbouring heritor.
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THE estate of Grange, belonging to James Peterkin, and lying in the parishes of Forres and Kinloss, possessed a servitude over certain mosses in the parishes of Edinkillie and Rafford, by which the possessors of the estate of Grange have the privilege of digging peats for their own use.
Mr. Peterkin communicated the benefit of this servitude to his tenants; and in a valuation of the teinds of Grange, (of which the Earl of Moray is titular qua patron,) it was established by the proof, that if this servitude had been withheld from the tenants, their farms would have been less valuable, to the extent of £38 yearly.
In the scheme of valuation, this £38 was accordingly admitted as a deduction from the rental; and the scheme having been approved of by the Court, in absence of the titular, his Lordship, in a reclaiming petition,
Pleaded: That it is a point already fixed, that when the titular has not the right of digging peats for sale, the deduction claimed is inadmissible; 14th December 1796, Sir Hugh Munro, No. 166. p. 15711.
Mr. Peterkin, on the other hand, contended, That the judgment in the case of Sir Hugh Munro, could not govern the present one; 1st, Because here the servitude was given over a moss which did not belong to the heritor; and, 2dly, Because the Earl of Moray, although titular of the dominant, was not titular of the parishes in which the servient tenement was situated.
On advising the petition, with answers, it was
Observed on the Bench: Where tenants have not the right of digging peats for sale, the benefit derived by them is too indefinite to be a legal ground of deduction. On this principle, although the discovery of a coal mine,—the establishment of a manufacturing village,—of a public market,—or of a harbour, will have the effect of raising the rent of the adjacent lands, yet the heritor, when valuing his teinds, will get no deduction from his rent on any of those accounts.
The Court, by a great majority, repelled the claim of deduction.
Act. W. Robertson.Alt. Rae.
Fac. Coll. (App.) No. 15. p. 34.
