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

WOODS AND GRAZINGS : CORRIEVOUIE. 13 1
" The Defender likeways hopes to make the second Pohit equally
clear to your Lordships, that even when he has Birch upon his own Lands
he is not thereby excluded from the Use of the Servitude granted him
upon the Pursuer's Fir Woods ; and this he will also endeavour to show
from the Nature of the Right granted him, the Intention of Parties, and
the Use of Possession.
" As to the first, this Servitude is plainly granted for the Use of
Bigging, atid Labouring of the Grounds, as the Words of the several
Clauses hereby referred to plainly express it. But though it be granted
for both Purposes, it has been chiefly, if not singly used, for the Purpose
of building ; for this plain Reason, that the Birch is by far the most
proper for the Utensils of Husbandry, the Fir being of very little Use in
that Way. But for the same Reason that the Birch is so fit for making
Ploughs and other Instruments of Tillage, it is extremely unfit for making
the Roofs of Houses, because, by its Crookedness, which renders it so fit
for the Uses of Agriculture, it makes the Roofs uneven, and full of
Hollows, and therefore not water-tight ; besides, that it is of no Duration ;
and therefore Fir is generally used in this Countr}-, both for the large and
small Timbers, unless when either Laziness, or the Difficulty of obtaining
it from the Pursuer's Factors, hinders the Tenants from getting it. It is
plain therefore, that if the Pursuer were to prevail in this Plea, he would
defeat the chief Use and Design of the Servitude, which, your Lordships
will observe, is most fully and liberally given, not only over the Fir
Woods growing on the Feuer's own Lands, but, if these are not sufficient,
over the whole reserved Fir Woods in the Bounds of Mar ; so that this
restricted Interpretation of the Pursuer's is noways suitable to the Manner
in which the Servitude is granted. Nor,
" 2do, To the plain Intention and Meaning of the Parties. This is
evident, lino. For that although there be Plenty of Birch Wood upon
most of the Feuers Lands, to which they have Right by Dispositions
from the Family of Alar for a Price paid, yet nevertheless they got this
Servitude upon the reserv-ed Fir Woods, without any Mention of their
own Birch Woods, though the Fir Woods growing upon their Lands are
particularly mentioned as the Wood that is to be first employed for the
Uses of the Servitude ; and particularly there are the Lands of Castktozvn,
upon which there are no Fir Woods at all, and for that Reason the
Servitude to these Lands is given directly and immediately over the
other reserved Fir Woods in Mar. Now upon these Lands your
Lordships will be informed, that when the Defender's Father, the late
Invercauld, purchased them, there were two of the greatest Birch Woods
in all the Country, one of them called the Wood of Coriplierige, and the
other the Wood of Tornrmv, the last of which was just ready for cutting
at the Time of Invercauhfs Purchase ; and it was on that account, and
for the sake of the other Wood, which, though not so far advanced, was a