Mr Thomas Nicolson v. Lairds of Bightie and Babirnie
Date: 14 November 1662 Case No. No 457.
What sufficient interruption of the servitude of common pasturage.
Click here to view a pdf copy of this documet : PDF Copy
There having been mutual molestations betwixt Mr Thomas Nicolson advovate, and the Lairds of Bightie and Babirnie, anent a common pasturage in the muir of Bighty, lying contiguous to all their lands; it was alleged for Babirny, That he ought to be preferred to Mr Thomas Nicolson, and the said Mr Thomas excluded from all commonty, because Babirny stands infeft in the lands of Babirny, which infeftment bears, with common pasturage in the muir of Bighty, and Mr Thomas had no express infeftment therein. It was answered for Mr Thomas, That the allegeance is not relevant to exclude him, because he, his predecessors and authors are, and have been infeft in his lands cum communi pastura, and by virtue of the said infeftments, in peaceable possession immemorial, or by the space of 40 years, which was sufficient to establish the right of community with Babirnie, notwithstanding his infeftment bears express. It was answered for Babirnie, That not only was his infeftment more express, but Mr Thomas's lands and his were holden of diverse superiors, viz. Babirnie's of the King, and Mr Thomas's were kirk-lands; and albeit the muir lies contiguous to Mr Thomas's lands, yet it is not of the same parish. The Lords repelled the reasons of preference for Babirnie in respect of the answer. It was further alleged for Babirnie, That the allegeance and answers for Mr Thomas Nicolson ought to be repelled; because he offers him to prove, that Nicolson was interrupted since the year 1610, and condescended, by yearly turning his cattle off the ground, and stoping him from casting peats; and therefore he must say 40 years possession, by virtue of an infeftment preceding that interruption. It was answered for Nicolson, non relevat, unless either a legal interruption by lawburrows or summons, or at least a complete and full interruptio facti, by debarring him one whole year from any deed of community; but for turning off his goods, which were presently put on again, and he enjoying all his profit, such were attempts, and incomplete interruptions, whereof he needed take no notice, seeing he continued in possession; otherways there would be great inconveniences by such interruptions, which would be noticed by the lieges, and yet would cut off the probation of the old possession before the same.
The Lords found, That whatsoever the interruption, 40 years, or immemoria possessione, before the interruption, behoved to be proved, for they thought that what servitudes were introduced only by possession, by the patience and presumed will of the other party, being either proprietor, or having right of community, any interruption was sufficient to show that the other party willed not, nor consented to the right; and if by such interruptions parties got wrong, it was their own fault, who did not either declare their right, or insist in a molestation debito tempore, or use mutual interruptions; but here it was considered, that possession before the year 1610 would be equivalent to immemorial possession, albeit the witnesses were not positive upon 20 years possession before, in respect the years were 50 years since.
