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The Countess of Moray pursued Mr Robert Wemyss to remove from two pieces of land, the one called Harroneas land, the other called Alexander's land. It was alleged for the defender, Absolvitor, because he bruiked these lands as part and pertinent of his lands of Cuthil Hill by the space of 40 years, and so not only hath the benefit of a possessory judgment, but an absolute right by prescription. The pursuer answered, That the Earl of Moray was infeft in these pieces of land per expressum, as serveral tenements, and so could not be pertinent of any other land, and produceth his charter, together with a tack set by the Earl of Moray in anno 1606 to Wemyss, then heritor of Cuthil Hill, for 19 years, expresly bearing the same designation, so that the defender's author having attained possession by a tack, his possession was the Earl of Moray's possession, and the lands are bruiked per tacitam relocationem ever since, and so cannot prescribe against the Earl's successors. It was replied for the defender, Non relevat, because that which was not ab initio part and pertinent, may by prescription of 40 years become part and pertinent, even though it had been of before a several tenement, neither will so ancient a tack exclude prescription, because there are more than 40 years since the issue thereof, during which time it cannot be continued by tacit relocation, because tacit relocation is a contract by mutual consent of parties tacitly inferred by the heritors not warning, and the tenants not renouncing, which therefore cannot reach to singular successors. Ita est, That it is more than 40 years since Wemyss was de nuded, after which the singular successors possessing only proprio jure, it cannot be said to be the Earl of Moray's possession, nor tacit relocation.
The Lords found that the prescription by possession of 40 years, as part and pertinent, was relevant, albeit before that time the lands so possessed had been a several tenement, unless there had been interruption, and that tacit relacation could not extend to singular successors.
