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What Title requisite in the Positive Prescription.
Subject_3 SECT. IV.
Title of Part and Pertinent.
Earl of Leven v. James Findlay of Balchristie
Date: 22 February 1711 Case No. No 94.
Forty years uninterrupted possession of land, as part and pertinent of that expressed in the possessor's infeftment, relevant to declare the property to belong to him, even in competition with one specially infeft in the same land.
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In the process of declarator at the Earl of Leven's instance, against James Findlay, the Lords sustained it relevant for the pursuer, to declare the Links of Balchristie to pertain in property to him as heretor of the lands of Drummeldrie, that he prove forty years uninterrupted possession of the said links, as part and pertinent of his lands of Drummeldrie; notwithstanding that the defender produced a special infeftment of the lands of Balchristie and links thereof, in favours of his authors in anno 1601; unless he offer to prove possession, or other interruption, conform to the decisions November 17th 1671, Young against Carmichael, No 14. 9636.; and 20th February 1675, Countess of Murray against Weems, No 15. p. 9636.; and Stair, Instit. B. 2. T. 3. § 73. Because, seeing it is not to be supposed that any person could be infeft in every part of his lands per expressum, it is sufficient to instruct forty years possession of lands reputed part and pertinent of those specially named in his infeftment. For otherwise, it were easy for any man to pro cure, upon his resignation of his own lands, infeftment in a neighbouring heritor's lands, under a new or special name, which would unsettle all property.
