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Scottish Court of Session Decisions >>
Mr Thomas Fraser & Mr John M'Kenzie v The Town of Inverness. [1708] Mor 8328 (9 June 1708)
URL: http://www.bailii.org/scot/cases/ScotCS/1708/Mor2008328-008.html Cite as:
[1708] Mor 8328
What understood to make a lis pendens. - Assignation granted pendente lite. - Marriage pendente lite. - Encroachments pendente lite. - Titles made up pendente lite.
Mr Thomas Fraser & Mr John M'Kenzie v. The Town of Inverness
Date: 9 June 1708 Case No. No 8.
Mutual declarators were raised by an heritor and a neighbouring burgh, about the property of a moss. The heritor craved interdict. The burgh pleaded uti possidetis. Found, that the possession could not be inverted or stopped, during the dependence.
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Mr Thomas Fraser of Drumballoch, and Mr John M'Kenzie, clerk, as proprietors of the mosses in the lands of Drumchardin and Mount Capaloch, pursue a declarator of property in these mosses against the Town of Inverness; and the Town repeating a declarator of property, a mutual probation was allowed, both as to right and possession, which was coming in, by the course of the roll, to be advised; but Mr Fraser alleging the townsmen are exhausting the moss medio tempore, by casting the double quantity of peats they were in use to cast in years preceding; therefore, he gives in a bill to the Lords, representing, That, if this be allowed, they will very soon exhaust the subject in controversy; and there being lawburrows served, they are sparing to use an interruption via facti, lest it be construed as a contravention; therefore, craved the Lords might discharge any farther casting, or the removing what is already casten, during the event of this plea, that they may not totally destroy the moss. Answered, They deny the inhabitants have casten up any more fuel this year than they were in use to do formerly; and it is a known maxim in law, that, lite pendente nihil est innovandum; and their possession cannot be stopped, seeing their right will clearly appear, when the probation comes to be advised; so the safest rule is, uti possidetis ita possideatis, till it be otherwise found. The Lords thought their possession could not be inverted or stopped medio tempore; but declared, when the cause came to be advised, if they found there was no right in the Town to these mosses, or a limited right, then they would consider the wase and damage made, and lay it on upon some other quarter of the moss belonging to the Town, to compensate and make it up.
Fol. Dic. v. 1. p. 552. Fountainhall, v. 2. p. 441.
