New Spalding Club > Records of Invercauld MDXLVII - MDCCCXXVIII [1547- 1828]

I30 RECORDS OF INVERCAULD.
also formerly in the Rights to the Glens of Corrivou and Gleticalader, till it
was discharged in the new Right to these Glens by the Earl of Mar, in
the 1705, to the late Invetcmild (as may be seen in the Copies of these
Writs hereto annexed ;) and for the same Reason, namely, that these
Glens, as well as the Grazings of Beacliin, were Parts of the Forests of the
ancient Earls. Therefore, when they feued them out, they very properly
restrained the Vassals from ploughing them, both for the Preservation of
the Wood and Game, and also because they were really by Nature unfit
for Cultivation. But as they adjected no such Prohibition to the Feus of
the lower Grounds, which were no Parts of the Forest, and were proper
for Culture, it is a Demonstration that they intended no such Prohibition,
but, on the contrary, meant to allow these Feuers the free and natural
Use of their Grounds.
" And, lastly, this is further confirmed by the Use of Possession that
hath been in consequence of these Feus. For it is most certain that the
Cultivation is greatly increased in this Country within the Memory of
Man, and many Tacks and Possessions have in that Time been either
newly set down, or greatly enlarged. On this very Moor where Calder's
Possession is situated, there is a pretty considerable Tack belonging to
the Defender, called Auchichness, which is likeways the Name of the
Moor. This Tack no doubt was at first what Calder?, Possession is now,
and not only within the Memory of Man, but within these ten Years,
great Additions have been made to it out of the Moor ; and even this
very Possession of Calders was within the Memory of Man begun to be
cultivated, but afterwards deserted, and let lie waste for many Years.
Now when all this was done without any Challenge, and not vi, clam, ant
precario, but openly, avowedly, and without any Leave asked or given, it
plainly shows, that it was not understood by either Party that this
Reservation of the Fir Woods to the Superior hindered the Vassal from
using his Property, in the natural Way. And, lastly, the large Tract of
Ground, even of such as is not proper for Culture, but only for bearing
Firs inclosed and planted by the Defender himself, and to the Trees, of
which it is finally determined by the Lord Ordinary's Interlocutor, that
the Pursuer has no Right, is likeways a Declaration, rebus, ipsis & factis,
that it was not understood, that the Feuers, upon whose Grounds the F'ir
Woods are reserved, were thereby debarred from using their Property,
even by planting the Grounds not fit for Tillage, which is more than what
the Defender claims at present.
" In this Manner the Defender hopes he has shown your Lordships
that this Plea of the Pursuer's is not only extremely unfavourable, but
without any Foundation, either in the Nature of the Right, the Meaning
and Intention of Parties, or the U.se of Possession had upon it ; which
two last, if there were any Ambiguity in the Right itself, would be
sufficient to explain it.