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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mrs Agnes Ferguson v James Cheap of Strathtyrum, and Others. [1785] Hailes 972 (1 July 1785) URL: http://www.bailii.org/scot/cases/ScotCS/1785/Hailes020972-0638.html Cite as: [1785] Hailes 972 |
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[1785] Hailes 972
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 SERVITUDE
Subject_3 Of pasturage preserved to one part of a barony, notwithstanding the lapse of the years of prescription, by the possession of the other parts.
Date: Mrs Agnes Ferguson
v.
James Cheap of Strathtyrum, and Others
1 July 1785 Click here to view a pdf copy of this documet : PDF Copy
[Faculty Collection, IX. 376; Dictionary, 14,520.]
Braxfield. The judgment of the Court, in the case Moncrieff against Balfour, December 1752, runs counter to the judgment of the Ordinary in this case.
Eskgrove. In that case there was a question of property as part and pertinent; a right of servitude once constituted is not lost by a neglect of possessing the whole.
Gardenston. I thought it established law, that when there is once a constitution of a right in a barony, the possession of a part saves the whole right.
Rockville. There would arise this inconveniency from the contrary doctrine, that the proprietor would be prevented from improving his ground, by laying sheep aside. [The only inconveniency would be to deprive the party of a right which he did not think worth preserving.]
On the 1st July 1785, “The Lords found that Agnes Ferguson had a right of pasturage, feal and divot, on the commonty of Leggiemuir.”
Act. Ilay Campbell. Alt. A. Rolland. Diss. Henderland, Braxfield, Hailes, President.
The electronic version of the text was provided by the Scottish Council of Law Reporting
