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right of servitude, constituted by use, though they cannot be de-prived of this right of use, by a division, yet they cannot claimany part of the land divided, and may be allocated on the por-tion of one of the sharers, who is allowed the more, in consider-ation of the burden.
Enclosure may be of advantage or disadvantage, according tocircumstances. And accordingly, the statute makes no provisionobliging those who divide commonties to enclose their several al-lotments. Permanent enclosure may be of indispensable use, incountries consisting of hill and dale, to defend the vales undercultivation, from the herds and flocks pasturing at large upon themountains, or to defend plantations of trees from injury; but inlevel arable districts, moveable enclosures of Jlakes, serve the pur-poses of appropriation of fields in crop for feeding, fully as wellas the permanent enclosure of hedges and stone walls. Andwhere these are not requisite for shelter, or to afford fuel, thosetemporary moveable enclosures are much preferable, in respect oftheir occupying no space, nor affording harbour to vermin, norshelter to weeds. Where enclosure, however, is found necessary,the statute of 1661, had previously given, to the proprietor en-closing, a right to compel the conterminous proprietor to bearthe one-half of the expense of the march fence, by a simple pro-cess before the Sheriff, or county Judge, who likewise is empower-*d to determine what kind of fence is proper. In some instances,where it glaringly appeared that the march fence was of no kind ofuse to the conterminous proprietor, our Supreme Court have freedWm from bearing his half of the expense. The general presump-tion of the law is, nevertheless, that enclosure is of equal advan-tage to the parties on both sides. And if the party exemptedwere afterwards to take advantage of the march-dike, in form-ing an enclosure, he would immediately be found liable in thathalf expense, from which he had formerly obtained exemption ;it being evident, from his own deed, that he has no longer a pleafor exemption, from his deriving no advantage. *
. Straighting of marches is also provided fqp by statute 1661, asimproved by statute 1669. The line of march, at the sight ofthe Sheriff, is fixed, so as to be most convenient for both parties;and if, for that purpose, it may be found absolutely necessary tonut off land from one side, that cannot be compensated by landbom the other side, the difference is compensated in money;which, if the land receiving it is under entail, must be entailed,n° difference of this kind making any difference as to the valua-tl0n jjf the land in the cess-books.
! Winter herding, as a protection for wood plantations, hedge en-
clos
mres, and winter crops, is provided for by statute 1669, which
c °nters right to the injured party to poind, or detain the trespass-
V0I„ n.
Ilutcbeson’s Justice of Peace.
R