What Title requisite in the Positive Prescription.
Subject_3 SECT. X.
Servitus Itineris.
The Laird of Fardell v. Mr Robert Wemyss of Cutlehill
Date: 20 June 1673 Case No. No 139.
Found in conformity with the above.
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In a declarator pursued at Fardell's instance for having the liberty of a passage and highway for carrying of coals from the coal-hill to the port of Aberdour, through the lands of Cutlehill, it was alleged for the defender, that the declarator could not be sustained, because, there being no highway through his lands, but a private road, which the pursuer and his predecessors have only bruiked by tolerance from the defender's authors, and they having often interrupted the pursuer's, by casting down their roads and making them pay a duty for their passage, the pursuer having no special constitution of servitude in writ, nor founded upon prescription, there was no ground in law for this declarator. It was replied, That the pursuer was not well founded in law, notwithstanding of these allegeances; because the port of Aberdour being a free and public port, where not only the pursuer, but several other neighbours who had coalworks, did carry the same to be loaded thereat, and their corns, to be sold at Leith and other places, by exportation, and that they have been in possession of the said way through the defender's lands, without interruption, past memory of man, which in law was sufficient to constitute their right by prescription, without any writ. The Lords, before answer, having granted commission to two of their number to visit and to examine witnesses, for both parties, upon the place, concerning the possession, or deeds of interruption, by casting off of loads; and having perused all the depositions, did find, That the continued possession for the space of 40 years and above, without interruption, was proven by several witnesses, some past 100, 80, and 70 years, and several others under that age, and that there was only one witness who proved interruption during that time; and as to all deeds of interruption, by casting off of loads or exacting money, they were only of late, and done to servants, notwithstanding whereof their masters did continue to pass that way: In respect whereof, the Lords did sustain the declarator for passage to a horse and a load to the port of Aberdour, conform to use and wont, but not to make it a king's highway; especially considering, that albeit there be no constitution in writ of a servitude, but by permission and tolerance, heritors have been in use to carry corns to a public market, or to harbours and ports, or to go to church, by a private road through their neighbours lands, prescription by possession is a sufficient title in law, and it concerns the public good that it should be so, seeing otherways all trade and commerce of native commodities, which cannot be vended at home, would be obstructed.
