Lord Seaforth v. Hume [1814] UKHL 2_Dow_338
The possession of shealings very strong evidence of the right, in questions of Highland boundaries. The circumstance that the burying of charcoal is a common mode of marking Highland boundaries questioned, on account of its apparent inaptitude in a country of that description.This was a conjoined process of declarator and suspension, instituted by the Respondent, to have the proper boundaries in the island of Lewis ascertained between himself and the Appellant. On Lord Seaforth's part, there was evidence of an agreement between his ancestor and Hume's predecessor, that the march should be settled in the line contendedPage: 339 ↓
The possession by shealings strong evidence of the right, in questions of Highland boundaries.Lord Redesdale . In a country of this description, with which he was perhaps better acquainted than any noble Lord in the House, the possession of shealings was probably the strongest evidence of the right; and in the case of Fraser v. Chisholm , ( vide post ,) the judgment of the Court of Session was in a great measure founded on it: he himself knew that it must be a material circumstance.The burying of charcoal could hardly be a common mode of marking Highland boundaries, from its inaptitude for the purpose in such a situation.One circumstance had been much relied upon, which appeared extraordinary to some of their Lordships at the hearing of the cause; viz. that charcoal had been found in a certain spot in the line contended for by the Respondent, and Dr. M'Leod, one of the witnesses, stated that this was a common way of marking boundaries in the Highlands. ThePage: 340 ↓
There was great doubt to which of the parties the property belonged, and he could not assent to the proposition, that the Respondent had an undoubted right to all the lands in dispute (except the island of Mulag.) He was the Pursuer, and was bound clearly to make out his right. It had been found that the parties had an equal interest in the island of Mulag. That was founded on their intercom-moning, and on possession by both; and if the Court below had said that they had an equal interest in the other grounds in dispute, he could not have said that the judgment was wrong. But when theyPage: 341 ↓
Lord Eldon (Chancellor.) It was quite impossible adequately to represent the distress of mind which he suffered in endeavouring to form an accurate judgment upon such evidence as this. He was not acquainted with countries of this description, as his noble friend was, and when the question came to depend upon Scotch hills, and charcoal, and such matters, he was afraid that he might not sufficiently comprehend the proper import of the evidence. The inclination of his mind was, that Seaforth's was the better evidence. But at least, if this matter were to be tried by a jury, as it would have been here, he should think it reasonable in such a case to grant a new trial,—not because he was satisfied that the verdict ought to be different, but on account of the difficulty of collecting the true effect of the evidence; and the proposed mode of proceeding was as near this as any that could be adopted.June 15, 1814.Lord Redesdale . On reconsidering this case, it seemed a question attended with so much difficulty,Page: 342 ↓
Judgment.Judgment of remit accordingly, to review generally.Solicitors: Agent for Appellant, Mundell.Agent for Respondent, Campbell.