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Subject_1 Prescription Subject_2 Part and Pertinent Subject_3 Acquiescence. Facts: Two conterminous proprietors both claimed a piece of ground. The defender having had possession for upwards of forty years, without a title, pleaded that the pursuer was barred by prescription and also acquiescence. Pleas repelled (the Lord Justice-Clerk dissenting).
The Lord Ordinary allowed both parties, before answer, a proof of their respective averments on record Page: 180 ↓
The Lord Justice-Clerk —This is a case of great hardship to one of the parties, who has possessed without challenge for upwards of forty years. But the question must be decided on principles of law. We have here one party pursuing another to deprive him of his possession, and I think the pursuer must make out a very clear case. The pursuer has founded his case on possession prior to the possession of the defender, and I think that he was bound to prove his allegation of possession, and as he has failed to do so, I think the presumption is that the possession was in other hands.
The Court (the Lord Justice-Clerk dissenting) recalled the interlocutor of the Lord Ordinary, decerned in terms of the conclusions of the summons, and granted decree against the defender for removal.
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Common Room
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