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Scottish Court of Session Decisions >>
Mr John Sinclair of Balgreigie v Douglas of Strendry and Others. [1695] 4 Brn 244 (17 January 1695)
URL: http://www.bailii.org/scot/cases/ScotCS/1695/Brn040244-0551.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Mr John Sinclair of Balgreigie v. Douglas of Strendry and Others
Date: 17 January 1695
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This was a declarator of his right of servitude in a great adjacent commonty. The Lords found, the adjacent heritors, who had right there and possession, might debar him, unless he showed a constitution, either by forty years' possession, without interruption, or that Balmuto, who entered into that contract in 1588, was his author in these lands, and was then heritor undenuded, and that he derives right from him by progress; for the Lords did not think the presumption of his being then so designed, sufficient to prove he was heritor, unless it were otherwise instructed. And, though some argued, that contiguity to a muir, with the clause cum communi pastura, gave a sufficient right, the Lords thought this not effectual to begin a prescription as a title; but would not give it without possession.
