JAMES LISTON, Advocator, v Miss ISABELLA GALLOWAY, Respondent (Court of Session)

The advocator reclaimed, and while he denied that the possession was otherwise than by tolerance, he argued principally, that esto there had been possession, the respondent was not entitled to a possessory judgment, in respect her title to the subject, from which she claimed right of access through the property of the advocator, was a bounding charter, and did not contain a clause of parts and pertinents, or of free ish and entry, as had been in terminis decided in the Second Division, in Saunders and others v. Hunter, 26th Feb. 1830, F. C. , 8. S. & D. 605.

Answered —The possession being undoubted, it is clear that a party may acquire a right of servitude over the property of another, though his own title be a bounding charter, and have no clause of parts and pertinents, or of ish and entry. The respondent has a sufficient ex facie title to insist in a declarator, if she can prove the requisite possession; and if so, has a right, by shewing possession for seven years, to obtain a possessory judgment.

The Court, being satisfied that seven years' possession had been proved, adhered.

Lord Gillies .—I doubt very much the decision of the Second Division, as reported. Free ish and entry is implied in every disposition.

Lord Ordinary, Fullerton, Act. Dean of Fac. (Hope,) A. M'Neill. Alt. Keay, J. Anderson. Isaac Anderson, S.S.C. Advocator's Agent. Tawse & Bonar, W. S. Respondent's Agents. B. Clerk.