Mutual Duties betwixt the Proprietors of the servient and dominant Tenements.
Bruce v. Wardlaw
Date: 25 June 1748 Case No. No. 28.
A kirk-road allowed to be altered for one equally commodious.
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Upon advising the prepared state in the process, at the instance of Bruce of New Grange and others, for declaring their right to a road to the kirk of King-horn, through Wardlaw of Abden's close, it being argued for the defender, that where a kirk-road is ever so much established by possession, yet still it is no high-way; it is but a predial servitude; and as other predial servitudes may be restricted, provided the prædium dominans be equally well accommodated, so a kirk-road may, by the heritor of the servient tenement, be changed to another place, equally commodious for the heritor of the dominant tenement;
The Lords found, “That Bruce of New Grange, his family, and tenants, and the heritor of Innerteil, his family, and tenants, and the parishioners residing in the north and east parts of the parish of Kinghorn, have been in use of a foot-way and passage, to the kirk of Kinghorn, through the defender's close of Easter Abden, on Sundays and other days of divine service; but nevertheless found, That, upon the defender's making a foot-road to the pursuer's, as commodious as that through the defender's close, at the sight of the deputy-sheriff, or any two justices of the peace of the district of Kinghorn, the defender is entitled to, and may shut up the foot-road through the said close.”
And this, notwithstanding it was argued for the pursuer, That although, where an indefinite servitude is constituted upon a man's ground, such indefinite servitude may be restricted to a particular part of the ground, sufficient to answer the end of the servitude; yet, where a servitude is not indefinite, but constituted upon a particular spot, no such restriction can take place; here the road in question is fixed to a particular line, and the pursuer has right to that individual road, or to no road at all.
Whether or not this decision shall be held as laying down a general rule with respect to all private roads, one cannot positively say, as this case had some specialties in it; for, not to mention the particular hardship on a gentleman in having a road go through his court, between his house and his stable, which may have had some involuntary influence; in fact, this road had been in a course of being varied; for at one time, it appeared by the proof to have been set about a little, by Abden's building his gardener's house upon the spot through which it had been in use to run, at another time, by building a garden wall: True, notwithstanding these changes, the road still went through the close, which was the ground of the present dispute. But these circumstances may have been thought to bring it a little nearer to the case of an indefinite servitude; and in the preceding case, June 25, 1747, Urie contra Stewart, No. 28. p. 14524. though there was no judgment given, the Lords argued very differently from the general principles upon which the present judgment would appear to stand.
Fol. Dic. v. 4. p. 280. Kilkerran, (Servitude), No. 2. p. 516.
