Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. Collected By James Burnett,Lord Monoboddo.

Sir Robert Gordon
v.
Dunbar of Newton,

Date: 10 December 1753

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In this case, the Lords found that it was a good defence against a plea of immemorial possession, to say that the possession had been interrupted, and that the possessor had been out of his possession for years together; because, as Lord Elchies said, though a single act of interruption would not take away the benefit of immemorial possession, however it might interrupt prescription, yet if the party so far gave up his right as to relinquish his possession for years together, he loses the benefit of immemorial possession, though he afterwards begin to possess again; for immemorial possession is a possession without discontinuance, past memory of man, from whence a right is presumed from the acquiescence of parties; but that presumption ceases if it appears that the party has at any time suffered himself to be turned out of possession.

This opinion was given in a question about a limestone quarry said to be acquired by immemorial possession.