Scottish Court of Session Decisions

Subject_1 SERVITUDE.
Subject_2 SECT. I.

Right of Servitude, how established.

Laird of Penniemuir, &c
v.
-

Date: 7 December 1632
Case No. No. 3.

In conformity with the above.

Click here to view a pdf copy of this documet : PDF Copy

The Laird of Penniemuir, and Sir Andrew Fletcher of Innerpeffer, pretending them to be infeft in a certain part of the lands of Doune, seek a declarator against sundry to hear and see it declared, that the common muir belongs only to the said barony, and portioners thereof, and to hear and see the defenders specially summoned to desist and cease from pasturing and casting within the said muir. It was excepted, for Mr. Alexander Wedderburn, heritor of ————, That no declaration can be granted against him, because he produced a writ granted to his father, in anno 1604, by the Earl of Crawfurd, then heritor of the said barony, and author to the pursuer, of liberty to him, his heirs and assignees, to have committed in the said muir of Doune, and, by virtue thereof, have been in possession since the granting of the said servitude. To which it was replied, That licence was personal, and wanted charter and sasine, and so was no real right against the singular successor; 2do, That the lands of Kinkene lie not contiguous. to the muir; 3tio, That the Earl of Crawfurd was rebel when he granted the servitude. The Lords found the exception relevant, notwithstanding of the reply.

Fol. Dic. v. 2. p. 373. Auchinleck MS. p. 213.