Edie v. Forsyth

Subject_1 Servitude Subject_2 Titles Subject_3 Access to Back Tenement. Facts: Circumstances in which held that a proprietor of an urban tenement had failed to prove a servitude of access to his back premises through the house of an adjoining proprietor.

It seems also important to observe that during this period of thirty-one years the eastern subject was sold in 1856 by John Forsyth, the heir of the person who shut up the passage, to the present defender, Alexander Forsyth, his younger brother, who appears to have paid a full price for the subject, and therefore to be a singular successor.

The deduction of £3, 3s. from the expenses is made in respect of the failure of the defender to appear to debate the appeal at the diet fixed on his own application.”

Lord Kinloch — The question raised by the present action is whether the pursuers are entitled to a servitude of passage, to certain background, through the house belonging to the defender, Alexander Forsyth? The Lord Ordinary has found that such a right of servitude once existed, but that the right has been abandoned and renounced rebus et factis .

The first point to be determined regards the constitution of the alleged right of servitude; because, until it is found that a right of servitude existed, it is unnecessary to consider whether it has been renounced. The main facts involved in this question are these:—Alexander Binny, the common author of the parties, conveyed, on 9th June 1794, to the predecessor of the pursuers, a dwelling-house and back-house in Whitburn, “ with the privilege of the present entry to the said backhouse.” At substantially the same time, though the disposition Page: 367 ↓