What Subjects may be carried by the Positive Prescription.
His Matesty's Advocate v. The Heritors near to Dunfermline Muir
1686.
February. Case No. No 73.
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Found, That neighbouring heritors to Dunfermline muir, which belongs to the King, being infeft with the general clause of common pasturage, and parts and pertinents, they might prescribe the right of a common pasturage in the said muir, and also might prescribe the properties of some parts of the muir, by 40 years peaceable possession of the same, as part and pertinent of their properties, although there was no special mention of the said muir in their rights.
Fol. Dic. v. 2. p. 102. Harcarse, (Servitudes.) No 852. p. 243.*** Fountainhall reports this case:
The King's reduction against Murray of Livingston, the Lord Torphichen, Mr John Elies, and other heritors adjacent to Dunfermline muir, was reported by Pitmedden; and the Lords find not only those heritors, whose charters bear the muir of Dunfermline per expressum, but even those which only carry the common clause, cum communi pastura, have a right of servitude on it, if they can prove prescription by 40 years possession; though it was alleged to be imprescriptible, as a part of the King's patrimony, though unannexed.
