Coals found to be carried by the common clause of pertinents, against one expressly infeft in the coal-heughs of the lands.
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The Lord Burly pursues John Sime for intruding himself in a coal-heugh, wherein the pursuer's author was infeft severally, and not in the land, but only in the coal, with power to set down pits through all the bounds of the land. The defender alleged absolvitor, because he stood infeft in the lands libelled, with parts and pertinents, and by virtue thereof, was seven years in possession, which must defend him in possession, until his right be reduced. The pursuer answered, That the defender could have no benefit of a possessory judgment, not being expressly infeft with the benefit of the coal, in prejudice of the pursuer, who was expressly infeft, and seased in the coal, and in possession of the coals past memory. The defender answered, there was no necessity of an express infeftment of the coal, which is carried as part and pertinent, as Craig observes in dieg. de investituturis impropriis, to have been decided betwixt the Sheriff of Ayr and Chalmers of Gaithgirth, and so being infeft, and in possession seven years, he has the benefit of a possessory judgment.
The Lords found the defence relevant, but repelled the same, in respect of interruption within seven years, which was proponed.
