Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.

Auchindryne
v.
Invercauld

Date: 22 January 1740

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[Elch., No. 5, Property; Kilk., ibid. No. 1.]

The question here was, Whether an heritor upon one side of a river, can, in order to protect his lands, raise a bulwark upon the top of the bank, and so throw the water upon the lands of the heritor on the other side? The Lords did not determine the question, but remitted to the Ordinary to inquire about some facts. But they determined the point of form, viz. that a summary application, by way of petition and complaint, without the formality of a declarator, was competent in this case; though the work was finished, so that there could be no room for a suspension or interdictum prohibitorium; which was in effect introducing into our law an interdictum restitutorium, since the intent of the action was to have the work demolished and things restored to their former state.