Anonymous Case Summary

Factual and Procedural Background

The dispute concerns the forest of Birse in The State. In 1170 the forest was granted to the Bishop and See of Aberdeen, who thereafter issued a series of feu charters conveying neighbouring lands—sometimes with rights of pasturage or cultivation in the forest—to various vassals. Through a succession of such grants, the Appellant ultimately acquired several parcels, including Ennochies, Easter Cluny, Balfadye and Cragbeg. In the sixteenth-century charters for these lands, the tenendas clauses referred to hunting (venationes) and fowling (aucupationes).

The Respondent’s predecessors obtained a 1636 disposition described as “all and haill the forest of Brass (Birse)” and, in 1676, a Crown charter conveying to them the absolute property of the forest “cum officio et jurisdictione forestriæ.”

In 1755 both parties entered a submission that produced a decree-arbitral. It confirmed the Respondent’s property in the forest but preserved to the Appellant and other feuars extensive servitudes of pasturage, fuel gathering and sheal-building. The decree did not expressly mention hunting or fowling.

When the Respondent later sought to exclude the Appellant from hunting and fowling in the forest, the Appellant raised the present action claiming (1) an accessory right arising from his interest in the forest and (2) an express feudal grant of hunting and fowling. The Lord Ordinary and the Inner House of the Court of Session rejected the claim, finding the Appellant had only servitudes, not a franchise. The Appellant appealed to the House of Lords.

Legal Issues Presented

1. Whether a reference to hunting and fowling in the tenendas clause of the Appellant’s charters, unaccompanied by a corresponding grant in the dispositive clause, can create a valid right of hunting and fowling over the forest of Birse.
2. Whether, independently of the tenendas language, the decree-arbitral of 1755 curtailed any such right claimed by the Appellant.

Arguments of the Parties

Appellant's Arguments

• His titles confer either a co-proprietary interest or, at minimum, servitudes that exhaust the surface use of the forest; an accessory right to hunt and fowl necessarily follows.
• The sixteenth-century charters expressly grant hunting and fowling “per forestas de Birse.” Historically, important privileges were often conveyed in tenendas clauses, and such grants remain effective, especially where valuable consideration was given.
• Later charters “by progress” incorporate all privileges in the original charter unless expressly excluded; hence the hunting and fowling privilege persists.

Respondent's Arguments

• He holds both the property and the office of forestry, entitling him exclusively to hunt and fowl in the forest.
• The Appellant’s charters provide only servitudes of commonty; the words “cum venationibus, aucupationibus” relate to the grantee’s own lands, not to third-party property.
• The tenendas references are inept because (a) they are unsupported by the dispositive clauses and (b) they are disconform to the warrants of resignation; they were therefore omitted from later renewals.
• The decree-arbitral affirms Respondent’s ownership and lists the servitudes exhaustively; it contains no recognition of a hunting or fowling franchise.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

Delivering the leading opinion, Judge Eldon observed that in Scottish conveyancing the dispositive clause, not the tenendas clause, determines what subjects pass unless the additional matter naturally forms “pars ejusdem rei.” All judges of the Inner House—save one—accepted this “modern doctrine.” They concluded that mere mention of hunting and fowling in the tenendas clause could not enlarge the grant because:

• The dispositive clauses conveyed only specified lands; hunting and fowling were separate incorporeal rights not “pars ejusdem rei.”
• Such rights cannot be presumed to pass under the general phrase “cum pertinentibus” as they are not natural incidents of land ownership.
• Hunting and fowling do not constitute a prædial servitude in the sense of ubi prædium servit prædio; they are personal or franchise rights requiring explicit grant.

Judge Meadowbank questioned whether very ancient charters might be treated differently, noting examples where substantive rights appeared only in tenendas clauses. The House, however, saw no need for further inquiry, concluding that—even if ancient practice differed—the present instruments could not confer the claimed franchise.

The House also noted that the 1755 decree-arbitral, while not decisive, reinforced the conclusion by recognising only servitudes and leaving hunting and fowling unmentioned.

Holding and Implications

AFFIRMED: The House of Lords upheld the interlocutors of the Court of Session, ruling that the Appellant has no enforceable right of hunting or fowling in the forest of Birse.

Implications: The decision clarifies that, under Scots law, an incorporeal right such as hunting or fowling must appear in the dispositive clause of a charter or arise as a natural incident; mere reference in the tenendas clause or under “cum pertinentibus” is insufficient. The ruling affects only the parties’ respective rights and sets no new precedent beyond reinforcing established conveyancing principles.