Scottish Court of Session Decisions

Subject_1 SERVITUDE.

Kincaid
v.
Sir James Stirling

1750, Jan. 12.
Case No. No. 4.

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Sir James built a lint-mill with a dam quite across a river, betwixt his lands and Kincaid's, and rested the end of it on Kincaid's land, who sued him to remove it. His defence was, that he did it with Kincaid's consent; and on a proof allowed, proved that he said to Kincaid, that if he would not build a lint-mill, he Sir James would; to which the other answered, well well; that he built the mill and dam without objection from Kincaid, though within sight of his house, but who was confined with the gout, and who lent him tools when at the work, and afterwards sent lint to dress at the mill, which seemed to amount to a non repugnantia; therefore the question was, Whether he could now oblige him to take away the dam? Kincaid insisted that this was no consent, and that he had other places to build on. 2dly, That servitudes cannot be constituted without writ, nor proveable by witnesses. 3dly, That if he had consented, yet till writ there is locus pænitentiæ. On the other hand it was contended, that Kincaid was barred personali exceptione. But it carried to oblige Sir James to take away the dam, 23d November last; and this day after long debate we adhered, renit. President, Milton, Drummore, &c.