Magistrates of Dundee v Hunter. [Court of Session—1st Division.]
| Jurisdiction | Scotland |
| Judgment Date | 14 November 1843 |
| Date | 14 November 1843 |
| Year | 1843 |
| Docket Number | No. 6 |
| Court | Court of Session (Inner House - First Division) |
Ld. Cockburn. N
Res Judicata—Property—Servitude.—
UPON the banks of the Tay, in the immediate vicinity of Dundee, there is a piece of ground about half a mile in length, called the Magdalen Yard. The lands of Blackness surround it on three sides, and on the fourth it is bounded by the Tay, an open beach varying in breadth from one hundred to fifty yards, and composed of shingle, interspersed with rocks intervening.
Nearly two hundred years ago, this piece of ground was the subject of dispute between the proprietor of Blackness and the inhabitants of Dundee. Both parties claimed the property of the ground, and mutual actions of declarator were brought. The former founded his claim upon the infeftment of himself and his predecessors in the said lands of Blackness, as part and portion whereof he alleged the said Magdalen Yard had been possessed past the memory of man; and specially on the acts of proprietorship performed by him and his predecessors in pasturing on the said green or yard, and debarring all others from pasturing on the same,—this having been the chief act of proprietorship competent to them, in consequence of a servitude of walking and taking air and exercise on the said green or yard, enjoyed by the inhabitants of Dundee, and under reservation, of which he claimed the property. The latter alleged, that the yard had been marked and set off from the lands of Blackness, as the property of the burgh, by certain march-stones set up in the year 1619, some of which, they alleged, had the burgh of Dundee's arms thereon. These actions were conjoined, and a proof allowed to both parties of the acts of proprietorship alleged by them respectively.
On advising this proof, the Court ‘found it proved that John Wedderburn of Blackness, and his predecessors and authors, heritors of Blackness, and their tenants, have been these forty years in possession of pasturage in said Magdalen Yard, without interruption; and found the Magistrates and inhabitants of the said burgh of Dundee their possession of pasturage in the same not proven; and found that the town of Dundee has no common good marching with the said Magdalen Yard, but that the same has the lands of Blackness upon the east, north, and west parts, and the river lay on the south; and found it proven that the march-stones standing betwixt the lands of Blackness and the Magdalen Yard were set down for keeping the Magdalen Yard from tillage.’
Thereafter, (19th January 1678,) the Court pronounced their final decree in these terms:—‘Find and declare, that the said Magdalen Yard lies contigue to the pursuer's lands of Blackness upon the east, north, and west parts thereof, within the meiths and marches thereof above specified; and that the said John Wedderburn, pursuer in the first action above written, and defender in the last, his predecessors and authors, had, and has, the sole good and undoubted right of pasturing thereon, conform to their rights and infeftments thereof, and possession had by them, by virtue of the...
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