house Craig, and others contained in the original rights of the same, and my own right of superiority as accords of law."

Previously to 1794 Basil Stewart had succeeded to Townfoot, and had got a disposition from Robert Stewart of Townhead, and it was to facilitate the making up of his titles that this deed last mentioned was granted. In October 1794 the said Basil Stewart obtained a similar charter of confirmation, confirming him in both lands in the same terms, and with the same reservation as in the first deed of 1794 already narrated. From 1794 the reservation has remained the same in the investitures of the respondent Mr Stewart and his predecessors.

This alteration by the superior made upon the titles of 1794 and subsequent dates was not submitted to without a struggle. In 1807 William Stewart, nephew and heir of the Basil Stewart who had consolidated the two properties, raised an action of reduction and declarator, seeking to have reduced the deed of 1794, on the ground that it was granted to him at a time when he was fatuous and of imbecile mind, he having been very shortly thereafter cognosced insane, and that it contained clauses and expressions which were not warranted by the previous investitures, and which were to the hurt and prejudice of the said William Harvie, the then proprietor. This referred chiefly to the alteration which had been made upon the clause of reservation of the coal. After very lengthy proceedings, however, their Lordships held that, "in respect that the charter of confirmation challenged, granted by the defender William Harvie to the late Basil Stewart in 1794, was adjusted by the men of business of the parties in Edinburgh upon a production of the original titles, and after a very tedious discussion for years before them; and that by a missive subscribed by the said Basil Stewart upon the 5th June 1792 (at which time it is not proved that the said Basil Stewart was in a state of incapacity to manage his own affairs) he authorised one branch of the reservation contained in the said charter; and in respect that the said charter declares that the reservations therein contained are conform to the ancient right and infeftment, therefore, and upon the whole circumstances of the case, sustain the defences pled for the said William Harvie," &c.

This judgment of the Court, as determining that Mr Harvie was entitled to insert the reservation in the defender Stewart's titles in these altered terms, was of some importance in the present action.

In 1866 Lord Belhaven raised an action of reduction and declarator, seeking to establish his right to the coals under Townhead and Town foot in virtue of the reservation in favour of Hamilton of Garion, in whose right he asserted himself to be. The action was, however, compromised, and the judgment did not touch on this point. On Lord Belhaven obtaining a lease from Mr Stewart of the coal under these lands, and proceeding to work them, Mr Harvie found it necessary to bring this interdict, in which the question again came before the Court.

SOLICITOR-GENERAL and DEAS for the reclaimers. WATSON and LEE for the respondent.

At advising

LORD DEAS-The leading question in this case is whether the complainer Mr Harvie is entitled to have an interdict against the respondent Mr Stewart, to prevent him working all or any of the coal in the two fourteen and sevenpenny lands of

Brownlee, which have very conveniently been distinguished as Townhead and Townfoot. I say this is the leading question, because if he is not so entitled, any subsidiary question between Mr Harvie and Lord Belhaven does not arise. Lord Belhaven has a disposition from Mr Stewart, and what he is doing, or wishes to do, may be rested on Mr Stewart's right.

Mr Stewart is infeft in these lands of Townhead and Townfoot under a progress of titles, the earliest of which, as far as they are before us, is dated 1622. There is a pretty regular progress downwards from 1622 in both lands, and nobody doubts that as a general rule the property of the lands carries with it the property of the minerals, and that possession of the lands is possession of the minerals, if no adverse possession interferes. Consequently, Mr Stewart and his authors must be held to have been in possession of the coal from 1622, unless it can be shown that somebody else had such possession. It is admitted that Mr Harvie has had no such possession as can be founded on in this case. It is not necessary to quote authority for the proposition which I have stated, but I could not give it better than in the words of Ersk. Inst. ii, 6, 1 and 5. 1 In order, therefore, to entitle Mr Harvie to an interdict against Mr Stewart to prohibit him from working the coal in his own lands, Mr Harvie must show that he has the property of the coal. It will never entitle him to such interdict merely to show that he has some lesser right than that of property. The whole question of interdict is a possessory question, but at the same time, in a case like this, I am not disposed to go on the assumption that the question of interdict cannot be decided upon any other ground than that of possession. If Mr Harvie can show that there is in his vassal's titles a clear exception of the coal, and that he has had no active possession of it, I by no means say that the complainer in that state of matters might not be in a position to obtain interdict, though he himself had not, up to that time, worked the coal. But in order to this he must make it very clear that the property of the coal is vested in him. The burden of instructing this lies on him. The only way in which he proposes to do so here is by producing the exception, which he says is in the titles of his vassal, and the great question in the case comes therefore, to be, Whether that exception, be it in his favour or in favour of somebody else whose right is now vested in him, is one of the property of that coal or not? In order to see that, we must see what Mr Stewart's titles really contain. They commence in 1622 with a charter by which Mr Harvie's predecessor, Livingston of Jerviswoode, grants the fourteen and sevenpenny land of Brownlee therein mentioned to John Davidson, and then comes the reservation upon which the whole case of Mr Harvie rests. It does not say in so many words, reserving the coal in the lands of the vassal to Hamilton of Garion, but reserving the coal in the lands of Brownlee, and that I think is substantially the reservation that runs through the whole of Stewart's titles. It appears to me that by recurring to the exception the superior has only so far discharged the obligation upon him to show his title. (I may here add that in the subsequent titles there is a slight alteration in the reservation. It continues the same up to 1784. It is the same even in the renewal of the right granted by Mr Harvie's uncle in 1782. It is in the charter of confimation and precept of clare granted in 1794 that it first

comes to be expressed in the way in which it now stands. That charter narrates the previous right to the Davidsons as having been granted under reservation always to Claud Hamilton of Garion, his heirs and assignees, of the whole coal of the said lands of Brownlee, and lands called Peelhouse Craig, &c.; but itself confirms the right of Mr Stewart, the then proprietor, "reserving to me, my heirs and successors, as in right of the said Claud Hamilton of Garion, the coal and other minerals in the said lands of Brownlee," &c.) I have said that Mr Harvie has only partially discharged himself of the burden of proof. It remains for him to show what the reserved right was, by reference to the original charters confirming that right, and which are always referred to as defining it in all Mr Stewart's titles. Such a reference has the same effect in a question between superior and vassal as if the whole clause referred to had been engrossed in the deed. It is, therefore, in vain for the superior to point to the reservation without going back to show what the old titles themselves said. The onus of this lies unmistakeably on Mr Harvie and it may be when you go back to the original titles that, in the first place, he may be found to have no right to the original privilege which he claims; and, in the second, that, be that as it may, the privilege itself may not amount to a right of property.

Let us now, therefore, look back upon the old titles, in which the reserved right or privilege is said to have been constituted. The first charter is dated 1530, and is a grant of the lands of Cobblehaugh and Peelhouse, with as many coals in the coalheughs belonging to the grantee as will suffice for certain purposes. That this is a grant exclusively for the use and behoof of the dominant tenement therein mentioned becomes still more clear by looking at the clause of warrandice in the same deed. Now, I do not suppose it can be doubted that, in so far as there is a grant of coal contained in this deed, it is a servitude, or of the nature of a servitude. If it is a good and valid right at all, it is of the nature of a servitude, and of a servitude in favour of a dominant tenement, consisting of Coblehaugh, Peelhouse, and whatever "lies on the west side of the burn of Garion." If a servitude of coal is granted anywhere, it is granted here, but everybody knows that you can't have a positive servitude without a dominant tenement, and that "heirs and successors" in the grant of the servitude mean heirs and successors in the dominant tenement. I am not disposed to lay down that there cannot be a servitude of coal like this; a servitude of fuel we are all well acquainted with; and though to constitute a good servitude it must be one known to the law, yet I think it is open to argue that this is practically a servitude of fuel, adapted in its terms to the nature of the property. But the natural thing here is that this, if a good grant at all, is a grant of servitude and not of property. In its origin, therefore, the right which the superior now says is vested in him was not a right of property. This is very much against its becoming so by variation, where the charters are only charters by progress. The first variation

we have occurs in a sasine of 21st June 1597. Though this is the first produced to us, it is clearly not the first deed in which the variation was made. The next deed, however, a precept of Clare of 20th November 1597, superseded the precept upon which the last-mentioned sasine proceeded. The terms of this second precept are ap

nees

parently quite the same as those of that which it superseded. We have no infeftment upon it, however, and we have no continuation of this series of titles. It is, however, important to observe that the only lands granted are those to which the servitude was originally attached; so that, although the right granted is in words here more extensive than before, it is granted to the proprietor of the same lands, and to no one else. No doubt it was given to him, his heirs and assignees," but that, as I have already said, means "heirs and assigin these lands. Now, such a right might be constituted as a personal privilege to a certain person, but if it were so, it could not possibly be a heritable right, so as to descend to heirs and assignees as a separate subject. It is impossible to look upon it as a right separate from the lands; without them it is no right at all. The important result of all this is, that the privilege, be it what it may, is in the party who is in right of the land, and it is not disputed that the right to the lands is not in Mr Harvie at all, but in the heir of Lord Belhaven, who undoubtedly now holds these lands of Peelhouse, &c., with the coal under them, as has been found by a decree of this Court in 1866. The material fact, therefore, is that the only dominant tenement, not only in those old titles of 1530, but also in that, to which I am now coming, of 1605, belongs entirely to Lord Belhaven and his heirs. When you come to the charter of 1605, what is granted there is, "Necnon tantos carbones cum carbonariis de Brownlie qui possunt sufficere dicto Jacobo Hamiltoun hæredibus suis et assignatis pro necessariis et vendere vel dare ad eorum voluntatem." This is the same in substance with what was contained in the precept of 1597 above mentioned. There is no right or privilege of the coal given to any one except in connection with these lands now vested in Lord Belhaven. If I am right in this, the privilege, whatever it was, is not in Mr Harvie. Now, what Mr Harvie says is this, that though his predecessors gave the privilege to Hamilton of Garion in these charters which I have just alluded to, they got it back again by a resignation in the year 1708. It is very important, therefore, to see what took place in that year. First, Daniel Carmichael of Mauldslie granted a charter of apprising to William Hamilton of Wishaw of the lands of Brownlee, &c. Hamilton was not heir to Hamilton of Garion; he did not even himself apprise, but got right to the apprisings which had been led by singular title. Hamilton of Wishaw then resigned into his superior's hands. But it was only what he got by his assignation to these apprisings that he either did or could resign. Now observe that what is given by the charter of apprising is the whole five pound lands of Brownlee, excepting always the feu farm rights granted to the Davidsons, "and my right to the coals of the said parts." The lands belonging to the Davidson's, and which are now Mr Stewart's, are not in the charter, and therefore could not be in the resignation which followed, and neither could the reserved right to the coal under these lands. There is nothing to show how Claud Hamilton acquired the five pound lands of Brownlee; but what was apprised from him was these lands with certain exceptions. Any right which Carmichael of Mauldslie had, or asserted that he had, to the coal in Townhead and Townfoot of Brownlee, was not included in the apprisings, or in the charter of apprising to Hamilton of Wishaw, or in the resignation, or the charter of resignation, which followed

This

thereon. The resignation of 1708 contains the five pound lands of Brownlee, with certain exceptions, these exceptions being certain sixty-five acres, together with Coblehaugh and Peelhouse. The five pound lands of Brownlee here resigned do not seem to be given out again, except the excepted parts which were withheld from the resignation; but, at any rate, it is impossible that this can have been a resignation of Townhead and Townfoot, which had been feued out so far back as 1622. It is not a resignation of these lands, but of the five pound lands of Brownlee as they were in Claud Hamilton, with certain reservations, and it is these reservations which are given out again by the ensuing charter of novodamus. The five pound lands here mentioned cannot possibly have contained the lands of Town foot and Townhead. Neither do they contain Coblehaugh and Peelhouse, for they are reserved. If, then, the superiors got right to the privilege of coal granted to Hamilton of Garion's predecessors, and attached to Coblehaugh and Peelhouse, it is quite clear that he did not get it by this resignation. It was neither one of the things apprised nor one of the things resigned. If therefore he ever got it, he must have got it some other way. These facts are material in more ways than one, because the superior by that resignation had got right to whatever right Claud Hamilton had in the lands of Brownlee, and when we find that the superior in renewing the titles of Townhead and Townfoot reserves the right of Claud Hamilton and his heirs over the coal, we require an explanation, and we find it in this, that while the superior was in right of certain things through Claud Hamilton, he was not in right of this particular thing which he now claims. It shows how dangerous a thing it would be to decide a question like this without looking back into the old titles. The assertion of the superior's being in the right of Claud Hamilton does not make its appearance till 1794; and I rather think that when we come to Mr Hamilton's title-deed we shall find confirmation of the view which I have taken.

Mr Harvie's titles commence in 1750 with a Crown charter of resignation in favour of Mr Steel. Now, observe here the right which is given to coal and coalheughs. It is a right to those in the lands of Brownlee which belonged to Hamilton of Wishaw. Townhead and Townfoot never belonged to him; and no right is given of the coal lying under them. Look next to the Crown charter in favour of the first Harvie and the same thing is apparent, only still more distinctly. It is only when you come to the entail executed in 1791 by this Mr Harvie that you find the variation inserted. "Together with all right I have to coal within the said lands of Brownlee, pertaining in property to the said William Hamilton of Wishaw, and the heirs and successors of John Davidson of Town foot and Townhead of Brownlie." These latter words are introduced here for the first time, and are not in the two previous charters. James Harvie, the entailer's heir, goes to the Crown and gets the charter of resignation of 1820. He seems to have succeeded in getting this charter pretty much in terms of the entail; but when we come to the clause referring to the coal, we find that the Crown refused to insert the clause as in the deed of entail, and went back to the older deeds which were its warrants, and gave him only the coal in the lands pertaining to William Hamilton of Wishaw. The same is the case in the precept of Chancery of 1857 in favour of the present Mr Harvie him

self.

All this very much confirms the view which I take. Although Mr Harvie's predecessors had acquired the five-pound lands of Brownlee, and certain rights of coal, they never did acquire this special privilege, which Mr Harvie now claims and, as far as we can see, this special privilege, if it belongs to anyone, belongs to the heir of Lord Belhaven as in right of the lands to which it was attached, and this reservation of the rights of Claud Hamilton, or of his own as in right of Claud Hamilton, has not the meaning which Mr Harvie would give to it.

case.

But supposing Mr Harvie was in right of that privilege, the question still remains, is that a privilege which would entitle him to interdict. The servitude might continue good, so far as it was a definite right capable of being extricated, because it is not essential in order to make it definite that some judicial regulation has been resorted to-so long as it can be extricated consistently with the rights of the servient tenement, and with other servitudes if any. It is quite conceivable that some regulation might be applied successfully to this There are ways in which it might be done. But assuming that it was as good a right as ever it was, and that, moreover, it was vested in Mr Harvie, the observation is still just that it is not a right of property in the coal which would entitle him to interdict against the proprietor of the land and the coal. It is never in any writ the coal, it is always a right to a certain quantity of coal. I need not observe that coals may be separated from the lands, but they must be so by means of a regular charter, constituting a definite estate of a heritable nature. See Dallas' Styles, and Bell on Deeds, vol. 1, p. 39. Now, we have here neither a disposition of the coal nor any reservation in such terms as can legally carry the right to the coal. The more that we go into the old titles the more we see that the words are quite insufficient to create a feudal title to the coal; and more than that, we see that they were never intended to do so. All that we have, at least in the progress before us, is an enlargement of the right such as it was, and an alteration of the essence of the right. Such was not possible, nor do I think it intended. And if it is not a title to the coal, I do not see how it can be a title to interdict.

Assum

All this is stated in Lord Kinloch's interlocutor in the previous case, in which the point came up in a somewhat different way. Lord Belhaven was then laying claim to this privilege of coal, not as proprietor of the dominant tenement, but as in right of those apprisings. To this the answer now is, that the apprisings were all of the lands of Brownlee, and that they went to William Hamilton, and through him to Mr Harvie. ing that Mr Harvie had right to these apprisings, was the privilege claimed worth anything? that was what Lord Kinloch then had to decide. He held that it was not, and gave his reasons most distinctly, and I quite concur in them. In the question of meaning and intention, as to whether it was intended to give a right of coal; it is a conclusive fact that the vassal not only gets the land but he gets the coal also, under an exception. If that exception were held to carry the whole coal, it would render the deed a perfect absurdity. His Lordship's opinion is, therefore, that the servitude attempted to be established could not be effectual, and if so, then, neither could the personal right.

It is not necessary for us to determine whether the right is here a right of property. I have answered

the question only because the parties have argued their whole case before us, and I have thought it just to give my opinion as to what their rights are. But this will not prevent Mr Harvie bringing a declarator, if so advised.

LORD ARDMILLAN-This is an action of suspension and interdict at the instance of Mr Harvie, superior of certain lands known as Townfoot and Townhead of Brownlee, against Mr Stewart, the proprietor of these lands, and against Lord Belhaven's trustees, and Mr Russell as his tenant. The complainer seeks interdict against all and each of the respondents, forbidding them to work any of the coals within the lands known as the lands of Town foot and Townhead of Brownlee.

The complainer alleges that he is superior of these lands, whereof the respondent Mr Stewart, the feuar, stands infeft in the dominium utile on a series of titles open to no objection; and he seeks interdict on the footing of a right in the coal reserved in the titles to the superior of the lands.

The first point to be considered is, whether the procedure by suspension and interdict is appropriate in this case. In the ninth article of the statement for the complainer he alleges long-continued possession of the coal. The words of this article are important

"The coals in the said lands of Townfoot of Brownlee and Townhead of Brownlee have for time immemorial been possessed peaceably and without interruption by the complainer and his authors and predecessors, the proprietors of the estate of Brownlee and superiors of the lands of Townfoot of Brownlee and Townhead of Brownlee. The vassals, in the said lands of Townfoot and Townhead of Brownlee never had any possession of the said coal."

And the relative plea in law for the complainer is the second plea

"The complainer and his authors and predecessors having uninterruptedly possessed the coal in dispute under habile titles for time immemorial, their right thereto cannot be disturbed by any of the respondents."

If this averment of possession has not been instructed, then the plea in law which I have read is not well founded, and ought to be repelled. The Lord Ordinary has expressed an opinion favourable to Mr Harvie on this question of possession. I am not able to concur in that opinion. I think that there is not sufficient evidence to support the plea of possession by the complainer. So far as I can perceive, there has been no possession at all of the coal in these lands by the complainer until a very recent date-so recent as to be of no importance in this question; and during that recent period it appears that both parties have been working the coal. I understood it to be substantially acknowledged at the bar that the complainer has not instructed any possession of the coal to support his action.

On the other hand, the lands of Townhead and Townfoot of Brownlee belong to, and have been long possessed by, the respondent Mr Stewart and his authors; and where there is no competing title to the land, and no adverse possession of the coal, I think that the possession of the land is equivalent to possession of the coal. On this point I agree with Lord Deas; and this possession must be recognised, at least to the effect of making it incumbent on the complainer to proceed by declarator, and not by interdict.

We are here in a possessory action in a process of suspension and interdict. There has been no declarator; and no action of declarator has been proposed. The very foundation of this action, as laid, is, that the complainer and his authors have had immemorial possession of the coal. Now, it is not enough to say that this averment has not been instructed. I think the averment is contrary to the fact, and I am under the impression that it was substantially abandoned in argument. We have, therefore, to consider the complainer's case apart from the plea of possession. Can he, in the absence of possession, demand interdict? I think it is well settled that where there is disputed title, and where the complainer has had no exclusive possession, the procedure by suspension and interdict is not appropriate. This was the opinion of Lord Corehouse in the case of M'Donald v. Farqu harson, 14th December 1886, 15 S. and D., 259, and has been repeatedly recognised as the true principle regulating the remedy of interdict. But, while I am of this opinion, I am not disposed to rest my decision on this ground.

Accordingly, I now proceed to consider the complainer's case on its merits. Here, again, it is necessary to observe the position which the complainer has taken as explained by himself on the record. In statement 8th he makes this averment, -and his case has been argued on the statement and plea which I now read:-"The coal in the said lands of Townfoot and Townhead of Brownlee was never feued out by the superior's authors to the vassals in the said lands, but remained as part of the lands and estate of Brownlee, and was expressly reserved to the superior of the lands in all the titles of the property." It is on this alleged reservation of the coal to the superior of the lands that Mr Harvie takes his stand. It is as superior, and under that reserved right to the superior, that he has brought this action. Accordingly, in the 3d plea in law for him, he puts his legal right thus—

The right to the coal in the said lands having been expressly reserved to the superior in the title of the respondent Mr Stewart and his predecessors, the said respondent cannot pretend a right to the said coal in competition with the complainer. his superior." Nothing can be clearer in point of statement and of pleading than this. The complainer is here maintaining and seeking to enforce a right which he alleges to be in him as superior, under a reservation of the coal to the superior of the lands in the titles of the vassal.

It is accordingly most important to ascertain whether the complainer's statement that the coal was in these titles "reserved to the superior of the lands" is correct in point of fact. If the coal in these lands was never feued out, but was reserved to the superior, then the complainer, who is the superior, would be entitled to succeed in a declarator. But if the coal in these lands was feued out with the lands with no other reservation than a special reservation (of the import and effect of which I shall afterwards speak) in favour of a third party, not the superior, then this complainer cannot succeed in this action, and would not even succeed in a declarator brought on the ground that he is in right of the coal under a reservation thereof to the superior of the lands.

I have applied my mind anxiously to the consideration of this question, which has been earnestly argued, and naturally and rightly felt to be essential to the complainer's case. Has the coal in these lands been reserved to the superior? The com

plainer is bound to instruct that reservation. I am of opinion that on these titles the coal in the lands was feued out with the lands; that there is no reservation of coal to the superior,-and that the only qualification or reservation affecting the coal is a reservation in favour of Claud Hamilton of Garion, who was not the superior of the lands. The feudal tenure, as originally created, under which the authors of Mr Stewart held these lands and coals, was not qualified by any reservation of coal in favour of the superior. Whatever reservation there was in the old titles was in favour of Claud Hamilton, a third party, and not the superior. It is maintained that the complainer is now in the right of Claud Hamilton; and perhaps it may be so. I am not satisfied that he is. I think it extremely doubtful, on the titles; and I feel the force of the learned argument of Lord Deas on this point. But if he is so, then, at least. it is on some separate title, and not as superior, The right reserved did not remain part of the estate of Brownlee retained by the superior, nor part of the superiority of the lands feued. It passed to the third party, Claud Hamilton, apart from the feudal tenure. Whatever may be its scope or effect, to which I shall next advert, it appears to me abundantly clear that it was not reserved to the superior in the old titles.

Then, in the more recent titles the reservation is expressed as in favour of Mr Harvie, as now in the right of Claud Hamilton of Garion." The respondent does not admit this; and, as I have already said, it is not free from serious doubt. But at least it is clear that even in these later titles the reservation was not taken to Mr Harvie as superior of the lands, but to him only as in right of, and so far as in right of, Claud Hamilton, who was not superior. This action is, however, brought by Mr Harvie as superior, and his plea and ground of action is, that the right to the coal "was expressly reserved to the superior in the title of the respondent," and that it is now in the complainer as superior.

I am of opinion that this ground of action is negatived by the titles in process. I entertain no doubt, taking the most favourable view of Mr Harvie's case, that, whatever may be the position of Mr Harvie in relation to Mr Hamilton, and whatever may be the nature of Mr Hamilton's right, or of Mr Harvie's right, in respect of that position and relation, and whatever may be the import and effect of the reservation in the old titles, still there is no support to the plea on which the action rests-viz., that the right of coal was in the titles reserved to the superior of the lands.

The next question for consideration is, what is the meaning and effect of the reservation itself?

In the later titles, which are steps in the progress, we do not find the words of original reservation, but we do find reference to the "original infeftments of the same;" and under these words we are naturally and legitimately carried back to the original titles to Mr Stewart's authors, and to the original titles of Hamilton of Garion. We have here a charter by Livingston of Jerviswoode in favour of John Davidson senior, one of Mr Stewart's authors, dated 14th September 1622. By that charter one portion of the respondent's lands of Brownlee is conveyed to John Davidson in feu "cum carbonibus et carbonariis," reserving to "Claud Hamilton of Garane carbones dictarum terrarum de Brownlee," &c., "secundum formam et tenorem

eorum originalis infeofamenti." This reference to the old infeftments is again repeated in a subsequent part of the charter.

From this title it appears (1st), that Livingston was the superior; and (2d), that the coal was conveyed to Davidson, the only reservation being in favour of Claud Hamilton; and (3d), that the reservation in his favour was according to the form and tenor of his original infeftments, to which we must revert. Now the first of these original titles, the oldest title in which the terms of Hamilton's right can be found, is a charter by Livingston of Jerviswoode to James Hamilton of Garion, dated 12th August 1530; and the words of that charter in reference to the coal of Brownlee are most important. They are as follows;-"Nec-non tantos carbones in carbonariis de brwnle qui possint et valeant sustinere ad ignem et usus domus et familie dicti Jacobi Hamilton heredum et assignatorum suorum." We next have an instrument of sasine, dated 21st July 1597, following on a precept of clare constat by Livingston to James Hamilton, dated 20th July 1597; and next, again, we have a precept of clare constat by Livingston in favour of James Hamilton, dated 20th November 1597. In both of these titles the terms of the grant of coal to James Hamilton are varied from the previous charter, and are more extensive than in the original title in 1530; but in none of these titles is there a conveyance of the property of the coal to Hamilton of Garion. In that original title of 1530 no more was given than sufficient coal for the house and family use of James Hamilton and his heirs. In the two succeeding titles in 1597, the words are 'unacum carbones et carbonariis (sic in origine) pro suis necessariis aut vendere vel dare Jacentes ex occidentali torrietio de Garin," &c. The next title we have which it is necessary to notice is a charter by James Livingston to James Hamilton of Garion, dated 22d March 1605, which had been lost, but of which the tenor was proved in February 1866. In that charter the clause in regard to coal is in the following terms:

"Nec non tantos Carbones cum Carbonarijis de Brounlie qui possunt sufficere dicto Jacobo Hamiltoun heredibus suis et assignatis pro necessarijs et Vendere vel dare ad eorum voluntatem jacen infra Vice Comitatum de Lanerk."

It is plain that, in this clause, the terms of the precepts in 1597 have been followed rather than the terms in the original charter of 1530; and I am disposed to think that the true intent and meaning of the grant is to be found in the earlier charter of 1530, and that nothing more was really meant to be conferred than a right to use coal for the household purposes of the family. If so, the subsequent reservation of the right in the charter of 1622 is the reservation of a privilege only, and not of a right of property. If the reservation be taken as in the charter of 1530, the right reserved may be a servitude of fuel, somewhat like a servitude of feal and divot. But if it be read as in the later charter, it is an innominate and anomalous privilege, not a known servitude, and not now effectual. Besides, if it be a servitude, there must be a dominant tenement, and that must be the mansion of Hamilton of Garion, which does not belong to Mr Harvie.

But, even if the clause in the charter of 1605 be read as more comprehensive than the clause in the old charter of 1530, even reading it as including a right to sell or give coal at pleasure, still there is, in my opinion, not the creation of a right