Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Sir Patrick Hume
v.
Hume of Linthill, &c

1684. February.

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Sir Patrick Hume, claiming right to fix a dam-head upon a piece of land belonging to Linthill and others, in community, as prescribed by the possession of those persons who pretended [right] to the property of a mill belonging to the pursuer;—Alleged for the defender, The pursuer cannot found upon the possession of the defender and his authors, by virtue of rights reduced by the pursuer, seeing he derives no right from them, but from others having better right: and whatever might be pretended for the pursuer's right, to make use of the defender's and his author's possession, in order to prescribe against third parties, that cannot be obtruded in prejudice of the defender's rights of other lands, seeing he and his authors cannot be said to have been negligent; which is the reason for prescription. Answered, Though the distinction may hold in personal servitudes, yet real servitudes, quæ acquiruntur fundo, accresce and pertain to those having right to the land. Now the servitude in question is a real one: and as, if the defender and his authors had built the mill upon the land, it would have belonged to the pursuer; so the right to the dam must belong to him, whether constituted by persons having right to grant the servitude, or by prescription. Replied, Inædificatum cedit solo, upon a special ground of law, which cannot be extended in this case to what relates to other men's lands. 2. Prescription was interrupted by a declarator for demolishing the pursuer's dam, raised at the instance of the defender's authors, who were heritors of the superior mill, and of the land in which the dam-head was craved to be fixed. Duplied, The citation not being renewed within seven years, it is prescribed by the late Act of Parliament quoad the effect of interruption. 2. The declarator did not conclude that the dam should be simply demolished, but to the effect it might not occasion the superior mill to stand a-back-water; and the pursuer is content to be so regulated. Triplied, The late Act of Parliament concerns only interruptions by citation posterior thereto, and not interruption by citation anterior to the act; for, had such an extension been, it would have been expressed, as was done in the preceding Act about arrestments; especially considering, that, by the former law, there was a jus quæsitum to the party. And laws are not always to be extended upon parity of reason; nor did the Lords of Session find a year's duty due to a superior by an adjudger, though the Act of Parliament subjected apprisers to such a duty, and such an extension of the law had been rational. 2. Albeit the declarator mention expressly, in the conclusion, to be free of the inconvenience of standing a-back-water, yet it imports a reluctancy; and no acquiescence ought to be sufficient to interrupt as to all other effects: besides, interruption being favourable for maintaining of rights, and taking off negligence, any indication should suffice. The Lords found, That citations before the late Act of Parliament needed not to be renewed within seven years; but that the declarator was not a simple interruption, but only to the effect that the defender's superior mill might not stand a-back-water.

Page 216, No. 766.