Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Patrick Nicoll v. Sir Alexander Hope
Date: 20 January 1663
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In a molestation pursued by Patrick Nicoll against Sir Alexander Hope, wherein he craved that he might demolish a dike bigged by Sir Alexander upon his property; Excepted, Grant it were bigged on your property, yet I offer me to prove, that by a condescendence betwixt your authors and me, it was agreed, the dike should be the march betwixt us, both having lands of Granton; by virtue whereof, that dike has stood as march betwixt [us] these 20 years past, till now.
Alleged, He behoved to condescend on the manner of probation of this agreement. He offered to prove it by witnesses; as being enough, after so long possession. Urged, Such a verbal condescendence betwixt the pursuer's author and this defender is not sufficient in law to take away any one's heritage, without writ; the pursuer standing infeft in the lands of Granton, specially condescended on and bounded in his infeftments. Then contended, a verbal condescendence on a dike to be the march betwixt the two Grantons, clad with 20 years possession but interruption, was probable prout de jure. The Lords found that condescendence not probable by witnesses, but only writ, unless it were alleged that the ground whereon the dike is bigged was contraverted before by the heritors of the two Grantons.
