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Scottish Court of Session Decisions >>
Graham of Douglaston v Douglas of Barloch. [1735] Mor 10745 (7 February 1735)
URL: http://www.bailii.org/scot/cases/ScotCS/1735/Mor2510745-052.html Cite as:
[1735] Mor 10745
Negative Prescription of Immunity from Servitudes.
Graham of Douglaston v. Douglas of Barloch
Date: 7 February 1735 Case No. No 52.
A servitude of pasturage, though engrossed in the rights both of the dominant and of the servient tenement, was found liable to the negative prescription.
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A Proprietor of two adjacent tenements, sold the one, granting the purchaser a servitude of pasturage upon the other tenement. Having thereafter fened out that other tenement, the said servitude of pasturage was mentioned in the disposition, and excepted out of the warrandice; by which it came, that this servitude was ingrossed in the rights of both dominant and servient tenements. The proprietor of the dominant tenement having neglected to use this servitude for 40 years, the question occurred, If it fell by the negative prescription. That it could not fall, was argued from this consideration, That in feuing out the second tenement, it behoved to be the same, whether the superior reserved the pastuarage in favour of himself, or of the purchaser of the first tenement; that in the one case it is a branch of the superiority, and can no more suffer the negative prescription than the right of superiority itself; that in the other, it is a branch of the purchaser's property, which must preserve it equally from the negative prescription; 2do, The servitude being established in the right the vassal has to his lands, he can prescribe no right or immunity contrary to the tenor thereof. Answered to the 1st, There is a wide difference betwixt the cases; a right to pasturage, reserved by a superior, is considered in law as a reservation of the property pro tanto, which therefore cannot be discharged nor fall non utendo; but where the servitude is reserved in favour of a third party, as in the present case, it becomes indeed an accessory of his property, but by no means a part or branch of it. 'Tis an accession the property once subsisted without, and may so subsist again; thereby it is, that a real servitude may be discharged, and of course may fall by the negative prescription. To the 2d answered, The reservation of a right in an infeftment will support the right against the positive prescription, because no man can acquire by prescription more than his title carries him to; but it will not save from the negative prescription, which is founded upon the negligence of the person to whom the reserved right belongs. The Lords sustained the defence of prescription.—See Appendix.
