Scottish Court of Session Decisions

Subject_1 PRESCRIPTION.
Subject_2 DIVISION III.

What Title requisite in the Positive Prescription.
Subject_3 SECT. X.

Servitus Itineris.

Mr Robert White of Bennochy
v.
J Wemyss of Bogie-Bennochy.

Date: 21 February 1700
Case No. No 140.

An heritor sold lands, through which his road lay to church, neglecting to reserve it. He continued to possess it 28 years without challenge. The prior possession allowed to connect with this, to secure his light.

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Phesdo reported Mr Robert White of Bennochy, advocate, against J. Wemyss of Bogie-Bennochy: Being about inclosing some ground, he did take in a passage and road, by which Bogie used to go to his parish church of Abbotshall, and the next market-town of Kirkaldy; and Bogie having complained of it to the Privy Council, they did stop the work. Whereupon Bennochy raised a declarator of immunity, that these lands being sold to him by Bogie's predecessor prout optimum maximum, they behoved to be free of all servitudes; and consequently Bogie could make no roads through his corn, but behoved to go through his own ground, though it did cost him somewhat about. Alleged, Bogie and his authors have immemorially past that way; and it is a natural servitude on the property of the earth to afford passages to neighbours through the same, it being done with as little damage and inconvenience to others as may be; and as to such cases, the ancient community of the earth reconvalesces; and it is both invidious and unneighbourly to deny him a way to the parish kirk and nearest town: And suppose Bogie had sold the ground adjacent to his dwelling-house, without reserving ways, can any rational man think that he must be cooped up and confined? will not common sense tell us, that free ish and entry is reserved, and that such an alienation is to be understood not stricte et judaice, but civiliter? What if he had his water to bring beyond Bennochy's land, or had an acqueduct or mill-lead running through his ground, could Bennochy, by this actio negatioria of immunity, debar him in these cases? Answered, The land through which the road controverted lies belonged formerly to Bogie; and, in 1671, was sold to Bennochy's father. While it was Bogie's own, he could have no servitude on it; for res sua nemini servit, and it is only 28 years since the alienation; and though he had possessed all that time, it is not sufficient to infer prescription: And Dury observes, 27th June 1623, Neilson of Craigcathy against the Sheriff of Galloway, No 138. p. 10880. that 30 years possession was not sustained to constitute a road to the church. The Lords considered, if this were done in order to inclosing a park, Bennochy has liberty to cast the way about (even though it were the King's highway) 200 ells; but seeing he insisted in his declarator abstract from that effect, some of the Lords thought a way through another man's corn could only be introduced and established, either by 40 years precription, or consent of the heritor of the servient tenement, or such a necessity as did cast him intolerably far about, or gave him a way very bad and uneasy; in which case, malitiis non est indulgentum on either hand; and there appearing humour in this cause, they declared they would hear the parties in their own presence; and, in the mean time, recommended to some of their number to endeavour a settlement betwixt them.

1700. July 17.—The declarator at Bennochy's instance against Bogie, mentioned 21st February 1700, being this day debated in presence, and advised, the Lords found a via vicinalis et privata, through another heritov's ground to the church or market, if not constituted by paction or consent, required prescription by 40 years possession. But the difficulty here was, there were only 28 years run since Bogie had sold this off to Bennochy; and to take in 12 years preceding the said alienation, to make up the 40 years, were to give an heritor a servitude of a highway in his own ground contra naturam domini, cum res sua nemini servit. Yet the Lords considered, if these two were not conjoined, how many pleas this might awaken where heritors had sold off some of their baronies, and though they had not reserved their ways and passages in their dispostions, yet these servitudes being innoxiæ utilitatis, it must be presumed, if they had been mentioned at the time of the sale, they would have been presently granted and yielded to. As to the thirlage, and other more onerous servitudes of pasturage, &c. it may be otherwise, unless they were specially reserved. And therefore the Lords found Bogie had right to this road, he proving immemorial possession, by conjoining his use and custom of going that way either before or after the alienation of the lands of Bennochy.

Fountainhall, v. 2. p. 91. & 104.