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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Charles Barclay Maitland v John Tait and Others. [1773] Hailes 546 (3 December 1773) URL: http://www.bailii.org/scot/cases/ScotCS/1773/Hailes010546-0304.html Cite as: [1773] Hailes 546 |
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[1773] Hailes 546
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 COMMONTY.
Date: Charles Barclay Maitland
v.
John Tait and Others
3 December 1773 Click here to view a pdf copy of this documet : PDF Copy
[Fac. Col. VI. 69; Dictionary, p. 2485.]
Coalston. If the proprietor had constituted a servitude for a certain number of cattle, he could not afterwards possess, so as to encroach upon a servitude so constituted; but that is not the case here.
Kennet. This is the only rule that can be followed, if possession goes as far back as the proof.
President. If the grant of servitude is according to use and wont, and the proprietor also possesses according to use and wont, his title is just as good as that of the person to whom he made the grant: this is agreeable to the decisions of the Court, particularly in the case of Moffat.
On the 3d December 1773, “The Lords found that the defender has a right to a servitude according to use and wont; but that the pursuer has a like right of possession, in so far as ascertained by immemorial possession; and remitted to the Ordinary to proceed accordingly.”
Act. R. M'Queen. Alt. Ilay Campbell. Reporter, Auchinleck.
The electronic version of the text was provided by the Scottish Council of Law Reporting