Harvie v. Robertson [1903] ScotLR 40_855 (28 January 1903)

Harvie v. Robertson [1903] ScotLR 40_855 (28 January 1903)

The defender acquired a prescriptive right to carry on lime-burning, as it was conducted for over forty years without objection or increase in nuisance, and the pursuer's prior use of his property did not constitute a legal impediment to action; voluntary abstention from objecting does not prevent prescription running.

Citation
[1903] ScotLR 40_855
Parties
Pursuer: William Harvie; Defender: Archibald Robertson
Jurisdiction
Scotland
Judgment Date
28 January 1903
Procedural Posture
Action of Declarator and Interdict / Inner House Appeal, Reclaiming Motion
Outcome
Defender assoilzied; interlocutor adhered to; pursuer's reclaiming motion refused.
Legal Topics
Nuisance, Long Prescription, Non Valens Agere
Property Law Tort Law Prescription Nuisance Long Prescription Non Valens Agere

Case Brief

Summary, issues, holding and outcome

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Parties

William Harvie

Pursuer

Archibald Robertson

Defender

Procedural Posture

Action of Declarator and Interdict / Inner House Appeal, Reclaiming Motion

Legal Issues

  1. 1 Whether lime-burning constitutes a nuisance actionable by the pursuer
  2. 2 Whether the defender has acquired a prescriptive right to continue lime-burning
  3. 3 Whether the pursuer's prior use of his property as an oil-work excludes prescription

Ratio Decidendi

The defender acquired a prescriptive right to carry on lime-burning, as it was conducted for over forty years without objection or increase in nuisance, and the pursuer's prior use of his property did not constitute a legal impediment to action; voluntary abstention from objecting does not prevent prescription running.

Court Disposition

Defender assoilzied; interlocutor adhered to; pursuer's reclaiming motion refused.

Orders

  • Sustains third plea-in-law for defender
  • Assoilzies defender from conclusions of the summons