Scottish Court of Session Decisions

Subject_1 SERVITUDE.

Mr Alexander Ross
v.
Ross

1751, Jan. 18.
Case No. No. 5.

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Alexander Ross purchased the lands of Little Dean, and was making improvements by inclosing, which were stopped by Priesthill as heritor of Meikle Dean, lying on the north, who claimed a servitude of a road through these inclosures for carrying turf, &c. from a muir south of Little Dean, belonging to the estate of Balnagowan. On a proof allowed to either party, it appeared that the heritors and possessors of Meikle Dean had been past memory of man in the uninterrupted possession of that road, and of casting turf in that muir, till Mr Ross began to make these inclosures, which the defender immediately interrupted, and it also appeared that he had no other road that with any tolerable conveniency he could use to that muir. On the other hand, Mr Ross proved by documents in writing, that the heritors of Meikle Dean had also got a wadset of Little Dean as old as 1645, which was not redeemed till 1610, that Balnagowan sold the reversion, and the reverser redeemed; and that after redemption the heritors of Meikle Dean got a tack of Little Dean till 1726, after which for some years the heritor of Little Dean possessed it himself; but thereafter till 1744 either the heritor or tenant in Meikle Dean had a lease of that part of Little Dean where the road was. It also appeared that Meikle Dean now holds of Munro of Foulis, and it did not appear from whom he purchased it; and although the pursuer admitted in the act that it also was once part of the estate of Balnagowan, yet now he disputed it. The question at advising was, Whether the possession by the heritor and possessors of Meikle Dean of a road through Little Dean, was sufficient to constitute a servitude, notwithstanding the rights they had all that time either of wadsets or of tacks to Little Dean? The Court thought that 40 years possession in that case would not be sufficient when the beginning of the possession did appear; but that immemorial possession whereof the beginning neither did nor could appear was sufficient, and that their possession must be presumed retro; because though the possession had been more than 500 years, it must be impossible to prove more than immemorial possession; and in this case were the dispute with Balnagowan, Little Dean could bring no other proof to support their right to cast turf in that muir than the defender has brought for Meikle Dean, since possession can no other way be proven than by parole evidence Therefore the Court found that the defender had sufficiently proved his right to the road in question; and assoilzied the defender from a reduction Mr Boss had raised of the Sheriff's decreet against him, and a declarator of immunity from that servitude,—the President alone differing. But we all agreed that if the pursuer could give the defender another road as convenient, though it were a good many yards longer, he could not use his servitude emulously. 19th February, we adhered, the defender making the new road as good, and not above 300 yards about.