Sir Robert Dunbar of Northfield v. Sinclair of Dun and Sinclair of Lyth
Date: 2 July 1714 Case No. No 18.
In a declarator of right in a commonty, the pursuer was required to produce a progress of rights for 40 years, as a warrant of his author's possession.
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In the action at the instance of Sir Robert Dunbar against Sinclair of Dun and Lyth, for declaring his right of commonty in a muir lying betwixt his lands of Gilloch and those possessed by the defenders; the pursuer founded upon his charter and sasine in the said lands, with their parts and pertinents in the year 1708, and offered to prove, that the muir in question was always reputed to pertain in commonty to the said lands, and was possessed as such by him and his authors time out of mind.
The Lords found no process at the pursuer's instance, unless he could produce a progress 40 years backward as a warrand of his authors' possession; and ordained him to produce his authors' rights.
Albeit it was alleged for the pursuer, That he standing possessed of the undoubted property of the lands of Gilloch by virtue of the charter and sasine produced, his authors præsumptione juris are understood to have had the same right which was a title as sufficient for their possession, as his infeftment is for his, unless his title be reduced. 2do, In the present question, he does not pretend to have acquired right by possession as of a separate tenement, in which case, he should certainly have been obliged to produce a prior title; he only pleads that the commonty of that muir is part and pertinent of those lands, which are and have been his author's unquestionable property, and alleges possession as a proof, not as a title of prescription.
