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

144 RECORDS OF INVERCAULD.
by Accident ; that, under the Colour of this Tack, Calder had pulled up
many Thousands of young Trees, growing upon said Area, then in a
thriving Way, built Houses upon it, and plowed up Part of the Ground ;
and that having thereby Access to the Woods all around him, he pillaged
and pilfered at pleasure, without any Possibility of Prevention or Redress,
which no Vigilance of the Forester's, in so large a Tract, could prevent
or restrain.
" 2dly, And as the same Thing might be practised in other Parts,
particularly in these circumjacent to the old Wood, where the young
Growth was springing, or in Places where the Wood had been cleared,
and where the young Growth had again sprung up ; or, if not prevented,
would again grow, he therefore insisted, that some proper Regulation
should also be established, for preventing any Abuse of this kind.
" Z^ly, He insisted, that this Servitude upon his, the Pursuer's Woods,
could only be claimed in siibsidium of the Timber growing upon the
Defender's Property-lands, when there was not at the time Sufficiency of
Timber belonging to the Defender himself, such as Birch, Aller, &■€. fit
and proper for the Use of the Servitude.
" The Defender made Answer to the aforesaid Condescendence ;
Parties were repeatedly heard thereon before the Lord Ordinary, and
most of the Articles have received his Lordship's Judgment, by very
distinct and articulate Interlocutors, which are so equitable and just, that
both Parties seem disposed to acquiesce therein.
"By the last of these Interlocutors, which bears Date the 19th
January 1760, the Lord Ordinary made Avisandum to your Lordships
with the following Particulars : \st, How far the Defender has Right to
plow or plant any, and what Part of the Grounds ? 2dly, How far he is
intitled to take Fir-timber from the Pursuer's other Woods in the
Earldom oi Mai; when he has Sufficiency of Birch and other Timber up-
upon his own Lands proper for the Purposes of the Servitude ?
" And in the Entry, the Pursuer will be allowed to observe, that as
these Lands, which now belong in Property to the Defender, did
originally belong to the Family of Mai; and were feued out, under the
express Reservation of the Fir-woods growing, or to grow thereon ; this
is not to be considered as a Servitude upon the Vassal's Property, or as
such, subjected to these rigid Rules, which are generally contended for
in all Questions respecting Servitudes, considered as contrary to natural
Liberty. These Woods were the Earl's Property ; so that when he feued
out the Lands, reserving the Woods, it was a Reservation of so much of
his original Property, and a proportional Abatement would be given of
the Price, corresponding to the Value of these Woods. And where that
is the Case, the Earl submits it to your Lordships, that this Reservation
ought to be most liberally construed ; and more particularly, that nothing