Scottish Court of Session Decisions

The Lord Ordinary ( Barcaple) after a proof, pronounced this interlocutor:—

“Finds, as matter of fact, first, that for time immemorial, or at least for forty years prior to the year 1845, the authors of the Reverend James Meiklem, defender and pursuer, in the lands or farm of Dukehouse, possessed and enjoyed a servitude road as an access between the public turnpike road, known as the Gartness Road, and the said farm of Dukehouse, in the line second described in the conclusions of the action at the instance of the said James Meiklem, passing through a field forming part of the farm of Drummore, belonging to the pursuer and defender, Peter Blackburn, and thence by a ford across the river Endrick into the said lands of Dukehouse, and that for horses, carts, cattle, and sheep, as well as foot passengers; second, that in or soon after the said year 1845, when the public turnpike road from Glasgow to Aberfoyle was opened, the line of said servitude road was, by mutual consent of the former proprietor of said lands of Dukehouse and the said Peter Blackburn, changed to the line first described in the conclusions of the action at the in stance of the said Reverend James Meiklem, leading from a gate near Killearn Bridge, in the fence of the said Glasgow and Aberfoyle turnpike road, which communicates with the said Gartness turnpike road, and thence along or near to the bank of the river Endrick, and through the said field belonging to the said Peter Blackburn, and forming part of the said farm of Drummore, and thence by said ford across the Endrick to the said lands of Dukehouse; third, that from that time the said new line of servitude road was possessed by the said James Meiklem's authors and the said James Meiklem himself, for the use of the said lands of Dukehouse, without interruption, until the year 1866; fourth, that after the line of said servitude road was changed as aforesaid, the said Peter Blackburn ploughed up, or otherwise obliterated, the former line of road, and a quarry has been wrought across the same by the road trustees of the district, and that the said old line is not now available as a servitude road: Finds, as matter of law, that the said Reverend James Meiklem is entitled to the free use and enjoyment of said servitude road in said new line thereof, as an access to and from the said lands of Dukehouse: Therefore sustains the defences for the said James Meiklem and William Henderson, the other defender in the action at the instance of the said Peter Blackburn, and assoilzies the said James Meiklam and William Henderson from the conclusions of said action, and decerns; and, in the action at the instance of the said James Meiklem and William Henderson, repels the defences, and finds, decerns, and declares that the pursuer, the said Reverend James Meiklem, as proprietor of the said lands of Dukehouse, and the pursuer, William Henderson, as the tenant thereof, and all others residing upon or occupying the said lands, and their successors, as proprietors, tenants, or occupants of said lands respectively, have a good and undoubted right and title, at all times and on all occasions, to the free use and enjoyment of a servitude road leading from the public turnpike road known as the Gartness Road, or from the public turnpike road leading from Glasgow to Aberfoyle, through the defender's lands of Killearn to the said lands of Dukehouse, and that they are entitled to resort to said road, and to exercise and enjoy a free passage along the same, and to drive horses and carts, cattle, sheep, and bestial along it: And finds, decerns, and declares that the line of said servitude

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