Scottish Court of Session Decisions

Subject_1 PART and PERTINENT.

Andrew Forsyth
v.
Durie

Date: 1 March 1632
Case No. No 7.

In a dispute about a ridge of land as pertinent, it was found that discontiguity was no competent exception where the excipient showed no right.

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In a removing from a rigg of land, as part and pertinent of two acres of land in Dalkeith, wherein viz. the said two acres, the pursuer was infeft, the defender alleging, That he was in possession of the rigg libelled these ten years bypast, without interruption peaceably, and this pursuer cannot by virtue of this title, which is acquired lately since his possession, and only of two acres of land, and not of this rigg specially, have interest to remove him upon this pretext, as that the rigg libelled were part and pertinent of the said two acres, seeing he offered to prove that the said rigg lyes discontigue from the said two acres, and there are other lands, pertaining to other heritors, interjected betwixt the same; and the pursuer replying, that the discontiguity could not be found relevant, to make the rigg cease to be pertinent of the said two acres, seeing, albeit it might thereby appear not to be a part thereof, yet it remained a pertinent thereof, for there are many other heritors and possessors of acres in Dalkeith, who have their acres lying in sundry portions discontigue, as these libelled do; and he offers to prove, that the pursuer's author hath been many years before the defenders possession, in possession of the said rigg libelled, as a part and pertinent of the said two acres, neither hath the defender, nor is he able to shew any right or title to the said rigg: The Lords repelled the exception, in respect of the reply, which they admitted to probation, and found that discontiguity made not the rigg to cease to be part and pertinent of the said acres, especially where there was no right alleged to the rigg, in the person of the excipient.

Clerk, Gibson. Fol. Dic. v. 2. p. 26. Durie, p. 626.