Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 SERVITUDE.
Subject_3 Import of a servitude of casting turf, feal and divot, constituted by possession.

John Brown of Glaswell
v.
John Kinloch of Kibrie

Date: 20 December 1775

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[Faculty Collection, VI. 157; Dictionary, 14,542.]

Alemore. I doubt as to extending the servitude of feal and divot to all who may hereafter possess the ground. What if a village should be erected? Would every inhabitant of a house in the village have as good and ample a right as the tenant now on the ground has? This would be increasing the burden beyond all measure, and beyond possession.

Coalston. A servitude is for the use of the dominant tenement. It is granted prædio, and is so acquired. If the number of houses is increased, so also must the right of using. In a case between Colonel Dalrymple and Bruce of Kennet, a servitude of a dam and water lead, constituted by usage, for draining a coal, was found to be increased when the coal had occasion for a dam of a greater height.

Alemore. That respected a service constituted for one particular purpose; but here a new sort of servitude may arise, and servitude of feal and divot for a village instead of a farm.

Hailes. I have some recollection that this question has been agitated in the Court. If this rural tenement should be converted into a village, I do not see how the villagers can have the right which the tenant now has. If the tenant of Bearford's Parks had a servitude of taking stones from a quarry, Can we say that the inhabitants of the New Town of Edinburgh will continue that right in the person of each individual among them?

Covington. Were we to adopt the principle that the servitude must be restricted to its original use, it would greatly reduce the extent of all servitudes in Scotland.

Gardenston. The nature of the right is fluctuating. The number of inhabitants may decrease as well as increase.

Kaimes. Upon the supposition of a servitude, constituted by writing, the servitude is acquired to the tenement; but when it is constituted by possession alone, I incline to be of another opinion. There is then a patientia usus; the possessor is entitled to continue, not to enlarge possession.

On the 20th December 1775, “The Lords found that the use of the servitude of feal and divot is not to be extended farther than what is sufficient to answer the purpose of those who possess, and have their actual residence upon the ground found entitled to the servitude;” adhering to Lord Coalston's interlocutor.

Act. D. Rae. Alt. W. Nairne.

N.B. There was no question put, though there seemed a considerable difference in opinion. The generality of the interlocutor was left to be explained, in case the nature of the farm should be totally changed.