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One having disponed a tenement, with a servitude altius non tollendi, and the heritor of the said tenement having offered to build it higher, he was interrupted. Alleged for the builder, That the servitude was prescribed non utendo for the space of 40 years. Answered, Negative servitudes do not prescribe, but after the contrary positive acts are done, just as warrandice; till then, the parties being non valentes agere. 2do, Predial servitudes are constituted by personal rights, and need not be included in infeftments. Replied, It would be an invincible inconvenience, if predial servitudes should not be notified, especially negative servitudes; for positive servitudes, with possession, is a sufficient notification, whether they be included in the infeftment or not.
The Lords found, The servitude did not prescribe from the date of the writ, but from the time the party acted contrary to the servitude, by building, or obtaining a declarator of immunity from the servitude.
Harcarse, (Prescription) No 780. p. 220.*** Fountainhall reports this case:
John Wilkie, Taylor in Edinburgh, and George Scot, pursue mutual declarators. The first pursued actione confessoria, That Scot's tenement owed him and his tenement the servitude altius non tollendi, conform to an obligement contained in the disposition made 1607 by Mr William Adamson, then heritor of both dominant and servient tenements, to James Heriot. Scot, actione negatoria, contended his tenement was free; 1mo, Because the said clause was not in the charter and sasine; 2do, That he derived no right from Adamson; 3tio, That he and his authors had possessed it 40 years, without any acclaiming that servitude, or its being mentioned in their writs. Answered to the 1st, Servitudes were real without infeftments; for which see 26th Jan. 1622, Turnbull, voce Servitude, 2do, The bounding of his own lands demonstrates that it came from Adamson and James Heriot. 3tio, In negative servitudes (such as this of altius non tollendi) there is no prescription, being actus meræ facultatis, until there can be an attempt or contravention. The Lords in præsentia assoilzied from Scot's declarator of immunity, and found his tenement liable in a servitude altius non tolendi to John Wilkie's land; and therefore decerned in his favours.
