Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND.
Subject_2 Such of the following Decision as are of a Date prior to about the year 1620, must have been taken by Spotiswoode from some of the more early Reporters. The Cases which immediately follow have no Date affixed to them by Spotiswoode.

Sir James Scott of Rossie
v.
Lindsay of Kilquhisse

Date: 22 July 1635

Click here to view a pdf copy of this documet : PDF Copy

Sir James Scott of Rossie pursued a declarator of the property of the loch of Rossie, against Lindsay of Kilquhisse. Alleged by the defender, The property of the loch cannot be decerned to appertain to the pursuer, because the defender and his predecessors are infeft, 200 years since, in the lands of Kilquhisse cum lacubus, and, conform thereunto, in possession of fishing in the said loch of Rossie, past memory of man. Replied, That ought to be repelled, in respect the pursuer and his authors are infeft, per expressum, in the loch of Rossie, and, conform thereunto, in possession of fishing therein, and debarring of all others, and that past memory of man. Duplied, The defender's infeftment, long before the pursuer's authors, being cum lacubus, is as good as if it had been expressly cum lacu de Rossie, since there is not another loch in the bounds but that of Rossie; likeas the defender's lands of Kilquhisse, and the pursuer's lands of Rossie, being both holden of the Earl of Crawfurd, and he having disponed Kilquhisse to the defender's predecessors, before ever he disponed Rossie to the pursuer's author, and that cum lacubus, in regard there is no other loch in the bounds, and of the defender's possession of fishing past memory, the desire of the pursuer's libel cannot be granted. Triplied, It must be granted, in respect of his express infeftment and possession, with the use of debarring all others, and the defender and his predecessors, per expressum. The Lords repelled the exception in respect of the reply.

Page 86.