You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
The Magistrates of Aberdeen, and Others, v John Irvine of Kincaussie. [1707] Mor 11149 (9 December 1707)
URL: http://www.bailii.org/scot/cases/ScotCS/1707/Mor2611149-351.html Cite as:
[1707] Mor 11149
The Magistrates of Aberdeen, and Others, v. John Irvine of Kincaussie
Date: 9 December 1707 Case No. No 351.
Prescription found to run against a mortification for maintaining bursars.
Click here to view a pdf copy of this documet : PDF Copy
The Magistrates of Aberdeen, and Others, standing infeft as patrons and administrators of the salmon fishing of the barony of Murtle, on the north side of the Water Dee, mortified by Katharine Rolland, relict of Dr William Guild, to certain bursars and scholars, pursued an action of molestation and declarator against John Irvine of Kincaussie; for declaring the property, and that Kincaussie might be decerned to desist from molesting them therein, or drawing or drying his nets on a place called the Hollens.
Alleged for Kincaussie; That he had prescribed a right by 40 years possession of fishing along the Hollens, and drying his nets thereon.
Replied for the Magistrates; That prescription could not run against the right of mortification to pious uses; as was decided betwixt Heriot's Hospital and Hepburn of Beirfoord. Stair's Instit. lib. 2. tit. 12. § 18.
Duplied for Kincaussie; The interlocutor in favours of Heriot's Hospital, was recalled upon a hearing in presence, and the decreet went out in the 1695, in favours of Beirfoord, finding that prescription might run against the Hospital, the administrators and trustees being majors, (No 349.) But then, the pursuers are not in the case of Heriot's Hospital, which is founded in favours of minors; for, the bursars of their foundation may be, and often are majors; and the patrons being infeft in the fishing mortified, prescription runs against them, without regard to the design of the mortification; and June 30th 1671, the Beadmen of Magdalen's Chapel against Drysdale, No 347. p. 11148., prescription was found to run against pious mortifications.
The Lords repelled the objection against prescription, viz. that the fishing belonging to the pursuers is mortified for maintaining of bursars.
