A servitude of a road was so far restricted, as that an other path not unreasonably distant was substituted.
Click here to view a pdf copy of this documet : PDF Copy
Ross of Priesthill, proprietor of the lands of Meikle-daan, claimed a servitude of road over the lands of Little-daan, for carrying turf from the muir of Sleeve-kyle, part of the estate of Balnagowan, to his said lands.
Alexander Ross of Little-daan, intending to inclose his estate, insisted in a declarator negatory of the servitude.
The defender alleged, and proved a possession of the servitude, past memory of man.
Pleaded for the pursuer: Little-daan is a feu of the estate of Balnagowan; but the defender holds Meikle-daan of another superior; so there is the less probability of his having a servitude on the muir, without which he has no use for the road. His possession is thus accounted for. The proprietor of Meikle-daan obtained from Balnagowan, in 1645, a wadset of Little-daan. Captain Ross, the pursuer's predecessor, purchased the reversion; and, in the year 1710, redeemed the wadset; but set the estate to Meikle-daan, which he possessed till the year 1723; and a part of it called Little-Gleich for some time longer. While the wadset subsisted, and during the tack, he passed through the lands; but this cannot establish to him a servitude, seeing no man has any servitude over his own property.
Pleaded for the defender: He has possessed past memory of man, which affords a presumption backward, of his having possessed from the date of his right. He might have a servitude on the muir of Balnagowan, notwithstanding he does not hold of that estate; and as he has possessed a servitude past memory, he has one, to which no such objection can be made, as that now made to his servitude of road. The presumption carries this servitude backward, and the road must have been of equal age with it.
Replied: Since the memory of his possession cannot be carried back beyond the commencement of the wadset, it cannot be presumed to have begun sooner; and the pursuer knows not what objections Balnagowan might make to his servitude of turf. Possibly it was a servitude due to Little-daan, the use of which the defender communicated to his tenants of Meikle-daan; and the abuse was not adverted to.
“The Lords, 17th January, found it proved, that the defender and his authors, heritors of Meikle-daan, had been in the immemorial possession of casting turf in the muir of Sleevekyle, and of leading them home to Meikle-daan by the road in question; and therefore, in respect of the said immemorial possession, found the defender entitled to the use of the said road.”
On a bill, wherein it was urged, That at least the defender ought not to use his right inciviliter; and though the pursuer could not furnish him a road, without encroaching something on the estate of Balnagowan, yet he procured him a tolerance from the Lord Ross, the heritor thereof, for that purpose;—and answers,
The Lords adhered; but found, that if the pursuer furnished the defender with another road, without going any unreasonable length of way about, he behoved to use it.
Act. Boswell.Alt. H. Home.
D. Falconer, v.2. No. 198. p. 240.
