Scottish Court of Session Decisions

Subject_1 POSSESSORY JUDGMENT.
Subject_2 SECT. I.

What title requisite. - What time requisite. - Connection of possession.

Anthony and Zerobabel Haigues, Elder and Younger of Bemmerslde,
v.
Mr Thomas Halyburton of Newmains, and Margaret Rutherford His Mother

Date: 5 July 1705
Case No. No 10.

A possessory judgment and seven years possession of a thirls mill not sustained to hinder the building of a new mill upon the astricted lands, in respect the thirlage was constituted with this express quality, that the same should cease upon the building of such a new mill.

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Robert Haigue of Bemmerside having, in his daughter's contract of marriage with James Halyburton, heritor of the Abbey-Mill of Dryburgh, astricted his lands of Bemmerside to the said Mill till such time as there should be a mill built upon these lands; which was not to be done till after the death of the parties contractors; and all of them being now dead of a long time, Anthony Haigue present heritor of Bemmerside, and Zerobabel his son, proceeded lately to the building of a mill upon their ground, but were stopped by a suspension at the instance of Thomas Halyburton of Newmains present heritor of the Mill of Dryburgh.

At the calling whereof, compearance was made for Margaret Rutherford, the old Lady Newmains, and a liferent sasine produced, whereby she stood infeft in the mill of Dryburgh, and astricted multures and sequels thereof. Upon which it was contended that she being, by virtue of that infeftment, upwards of seven years in possession, had the benefit of a possessory judgment; and her possession could not be overturned summarily by building of a mill within the lands of Bemmerside, but the right of building should be declared via ordi-naria.

Answered; A possessory judgment is a privilege competent only to proprietors of lands, that they may not be put summarily to produce their rights and debate their interests in possessory actions, and not competent to pretenders to servitudes; 2do, The astriction in the foresaid contract of marriage being constituted with that express quality, that the same should cease upon Bemmerside's building a mill within his own bounds, the liferenter could not enjoy the servitude but qualified as her authors had it, and therefore could not stop the building.

Replied; The Lady Newmains being seven years in possession upon an infeftment in the mill and thirlemultures, has eo ipso a possessory privilege; and the exception in the original constitution of the thirlage being never to this hour declared, it cannot be summarily applied via facti in prejudice of her right and possessory judgment.

The Lords found no possessory judgment in the person of the Lady, in respect of the clear quality of the right.

Forbes, p. 24.