Subject_1 POSSESSORY JUDGMENT. Subject_2 SECT. III.
Interruption of Possession.
Lady Glengarnock v. L Kilbirnie.
1626,
July18. Case No. No 21.
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In a removing from a lake, the defender excepted upon his special Infeftment, with forty years possession by deeds of property; and the pursuer replying upon her author's elder infeftment, and continual possession, and also debarring all others, and particularly the defender, by breaking his boats, &c. The defender's exception was not found relevant in this possessory judgment, and the pursuer's reply was admitted to probation, although it was alleged, that breaking of boats which of itself is an unlawful act, could not be looked upon as a lawful interruption.
Fol. Dic. v. 2. 89.*** The case is reported by Durie, p. 220, as follows:
1626. July 18.—In a removing pursued at the instance of the Lady Glengarnock contra Laird Kilbirnie, for removing from a loch; the defender compearing, and proponing an exception upon his particular infeftment of the same loch, clad with 40 years possession, by all deeds of property, as fishing by net, wands and cobil, and all other lawful manner; this exception was not found relevant in this possessory judgment, to defend the excipient, but the same was repelled, in respect that the pursuer replied, upon her author's elder infeftment of the loch libelled, long anterior to the excipient's right, and continual possession, not only by themselves, conform to their right thereof, but also that they were in use to debar all others from any fishing therein, and specially this same excipient, and also his father before him, in so far as the said pursuer's authors brake the boats which were put upon the said loch, by the excipient's father, and by himself sincesine, since his father's decease; which reply was admitted to probation, albeit the excipient alleged, that the breaking of boats, which of itself was an act unlawful, could not be respected as a lawful interruption, for which the doer might be convened for a wrong and insolent riot, which reply nevertheless was sustained, as said is.
