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Scottish Court of Session Decisions >>
Purves v Miller and Crawford. [1696] 4 Brn 321 (18 June 1696)
URL: http://www.bailii.org/scot/cases/ScotCS/1696/Brn040321-0689.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Purves v. Miller and Crawford
Date: 18 June 1696
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Mersington reported Purves against Miller and Crawford, feuars in Dunse, being a suspension of a decreet of the baron-court of Dunse fining them in *£100 for the riotous throwing down of a dyke Purves had built on his own ground. Answered,—The decreet was null, being pronounced in vacance without a dispensation, and the fine beyond the baron-bailie's jurisdiction; and, as to the fact, it was warrantable, seeing thereby you closed up a door which, past memory of man, was a common passage to the crofts adjoining; replied,—While, the whole tenement of houses was in one heritor's hand it was then a passage; but coming now, by a contract of division, to be possessed by two, this door falls all to be within. Purves's share and proportion. Replied,—Though it were, it must be always with the burden of a servitude of passage to me for the conveniency of my land.
The Lords assoilyied from the fine, in respect the point of right was yet dubious; but turned the decreet to a libel, and allowed the Ordinary to hear them, who had hest right to this door, or if it was common to them both.
