he does not injure the Dominant tenement by preventing the rain from dropping from it.1

3. Light, Prospect, and Freedom from being overlooked.Where any one of these is entered in the titles of the property, it is a separate obligation, the extent of which will depend on its terms.2 A Servitude of light does not infer prospect, or prevent the owner of the servient tenement from building where he pleases, if he leave room for a proper supply of light.3 The object of these servitudes is at once and fully accomplished by a prohibition to build, or to build above a certain height. A shed consisting of a flat roof, supported by cast iron pillars, was held to be an infringement of an obligation "not to erect any building whatever."4 Even where there is no obligation, certain restrictions exist on the principle on which the law of nuisance is founded, that no one is entitled wantonly to use his property to the prejudice of his neighbours.

SECT. 3.-Rural Servitudes.

These have reference to land, and are chiefly as follows:1. Passage, by which the occupants of one piece of land have the privilege of passing through another. It is divided by lawyers into three grades,-Foot road; Horse road; and Cart or Carriage road. A fourth class has sometimes been added, called Loanings for cattle.5 The right to public pathways, which belongs to the department of public law, has its foundation generally in this species of servitude.

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2. Aqueduct, or the right of carrying water through a neighbouring tenement for the purpose of driving mills, irrigation, &c. Of the same nature is the right to have the water accumulated in a dam or reservoir on a neighbour's property. It seems to be a principle that neither party can be bound to renew or repair such a work, farther than to the extent of keeping the bulwarks in order, which it would appear that the person deriving advantage should do. Either party may repair it if he feel it for his interest, and the dominant proprietor may at all times have access to it for the purpose of keeping it in repair.7

3. Watering of Cattle, consisting in the simple right of

Scouller v. Pollock, 24th January 1832.-2 E. ii. 9, 10.- Ogilvie v. Donaldson, 5th February 1678, M. 14534.- Magistrates of Edinburgh v. Brown, 17th January 1833.-5 E. ii. 9, 12.— Ibid. 13.-7 Gray v. Maxwell, 30th July 1762, M. 12800. Carlyle v. Douglas, November 1731, M. 14524. Weir v. Glennie, 4th February 1832.

the proprietor of lands to water his cattle in streams belonging to another person. The latter is entitled to cover his stream, if he leave space sufficient for a reasonable exercise of the privilege.2

4. Common Pasturage " is a right by which the owner of the dominant tenement is entitled to the use of the grassgrounds of the servient, for pasturing a determinate number of cattle proper to the dominant."3 Where the right is not limited by writ, its extent may be ascertained by an action of Souming and Rouming; and the rule seems to be, that the servient tenement must receive as many cattle for pasturage in summer as the dominant provides fodder for in winter.5 It confers no right to make hay of the grass.6 5. Feal and Divot, or 66 the right one has of turning up feals or divots from the surface of the servient tenement, and carrying them off for thatch to his house, or for the other uses of the dominant tenement."7

For Thirlage, see this head in Index.

SECT. 4.-Constitution of Servitudes.

There is a distinction of servitudes into Positive and Negative. The former are those which allow the Dominant party to make use of the property of the Servient. The latter merely prohibit the Servient from doing certain acts to the disadvantage of the Dominant. The application of the division to the above cases will be easily perceived. A positive servitude cannot be constituted without possession or exercise, however it may be granted; a negative, not being capable of possession, can. A negative servitude from the same cause cannot be acquired by prescription alone; a positive can.8

A servitude does not require to be feudally incorporated with the title, by being entered in all infeftments, &c. (See above, Chap. II. Sect. 4.) It is sufficient that it appear in some writ or title. (See above, Chap. II. Sect. 3.) This is law, only however in the case of the common and received servitudes enumerated in the law-books. It was found that a servitude could not attach to the proprietors of floors in a house to repair the roof, without being entered in the latest titles.10 No

E. ii. 9, 13.-2 Beveridge v. Marshall, 18th November 1808.-3 E. ii. 9, 14.- Ibid. 15.-5 Breadalbane v. Menzies, 15th June 1741, 18th November 1742. 5 Br. Sup. 710-724.-6 Cuninghame v. Dunlop, 20th December 1836.-7 E. ii. 9, 17.- Ibid. 9, 3, 35.-9 Ibid. 3. Gray v. Ferguson, 31st January 1792, M. 14513.-10 Nicolson v. Melvill, 19th February 1708, M. 14516.

servitude can be acquired unless with respect to a dominant and servient tenement, and it is said that the public in general cannot acquire a servitude. A corporation, however, in respect of its landed property, may acquire a servitude for its members, by prescription, as it was found where a royal burgh claimed the right of bleaching on private property for the inhabitants. It has been decided, in an old case, that a similar right cannot be so acquired by a burgh of barony.3

Where the dominant and servient tenements come into the possession of the same person, the servitude is extinguished, and is not tacitly revived by their subsequent separation. It appears, however, that if the one tenement be held in absolute property, and the other by a limited title -as an entail, the mere union in the same person will not extinguish the servitude.*

CHAPTER IV.

PROPERTY IN BRITISH VESSELS.

SECT. 1.—Requisites of British Privileged Vessels.

The Ship.-A British privileged ship, which the owners are entitled to register as such, must be, 1st, of the build of the United Kingdom, or of the Isle of Man, or of Guernsey or Jersey, or some British possession; or, 2d, a lawful prize condemned, or a vessel forfeited for breach of the law for prevention of the slave-trade; owned by subjects of Great Britain in terms of the act.5 A ship repaired in a foreign port at an expense beyond twenty shillings per ton on the burthen, loses the character of a British ship, unless the repair be rendered necessary from damage on a voyage, and to enable the vessel to proceed on her voyage and return to the British dominions. To enforce these provisions, the master of a ship repaired abroad must report the circumstance to the collector and comptroller of customs at the port of arrival, who, by direction of the commissioners of the customs, on

1 Cochran v. Fairholm, 8th February 1759, M. 14518.- Sinclair v. Town of Dysart, 10th February 1779, M. 14519.-3 Feuars of Dunse v. Hay, 22d November 1732, M. 1824.- Donaldson's Trustees v. Forbes, 1st February 1839.5 8 & 9 Vict. c. 89, § 5.

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their being satisfied that the repairs were necessary, certify that the ship's privileges are not forfeited. A ship captured by or sold to foreigners loses her privileges, and can recover them only by the same capture or forfeiture, as above, which makes a foreign ship British.2 A ship declared to be stranded or unseaworthy, and condemned by any competent court, permanently forfeits her privileges as a British ship.3

Ownership.-The owners must be subjects of Britain, and inhabitants of the United Kingdom or of the colonies, or partners of houses carrying on trade in the United Kingdom, or members of British factories. The master and threefourths of the crew must be British seamen, but if there be one British seaman for every twenty tons burthen, it is not necessary that the number of foreigners shall be restricted to one-fourth. In the coasting and fishing trade, the crew must be entirely British. Ships under fifteen tons burthen employed in the coasting or inland trade, and ships not exceeding thirty tons burthen, and not having whole decks, employed in the Newfoundland fishery, are entitled to the privileges by the above qualifications, although not registered, if wholly owned and navigated by British subjects.6

The privileges so acquired consist of certain monopolies of the colonial and coasting trade, and of the unrestricted importation of certain enumerated articles for home consumption, which (besides other restrictions) cannot be so imported in foreign ships unless they be of the country of which the goods are the produce, or of the country from which they are imported.?

The rules by which a foreign ship is applied to its particular country are similar to those which characterize a British ship, viz. build or capture, three-fourths of crew natives or one for each twenty tons, &c., with an extension to British built ships, not prizes of war, so possessed and navigated, which may have the privileges capable of being enjoyed by any foreign vessels as above noticed.8

SECT. 2.-Register.

Before a ship is ready for sea, the property of it is in the same situation as that of any other moveable; but whenever it becomes fitted for its proper purposes, all rights connected

18 & 9 Vict. c. 89, § 7.-2 Ibid. § 9.-3 Ibid. § 8.- Ibid. § 12.-5 Ibid. c. 88, §§ 13, 17.- Ibid. § 14.-7 Ibid. § 2. See § 4.- Ibid. § 16.

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with it are, by a law extending over the whole of the British dominions, held under a system of registration, not very dissimilar to that which regulates landed property in Scotland. Where there is more than one owner of a vessel, the property is divided into sixty-four shares. There cannot be more than thirty-two shareholders; but there is an equitable exception in the case of legatees, heirs, trustees, creditors, &c. succeeding to or having the management of shares, and so increasing the number of persons interested in the property; and joint-stock companies may hold shares registered in name of the company, by trustees, who must in every case be three in number at least.2 Before registry, a declaration as to the build, burthen, master's name, ownership, &c. must be taken by the owner or owners, of whom no more than three are required to subscribe, and one is sufficient, if the others reside more than twenty miles from the port of registry.3 A full account of the build and first purchase, under the hand of the builder, must also, in the ordinary case, be supplied before a registration can take place; but, if circumstances render this impossible, it may, on a proof of the particulars in some other shape, be dispensed with. As a farther preliminary to registration, a survey is taken by persons appointed by the commissioners of the customs, in presence of the master, or any other person whom the owners may appoint to represent them. The tonnage is ascertained according to rules set forth in the latest registration act.5 The vessel is then entered, with a narrative of the particulars so collected, at the port to which she belongs,-viz. that nearest to which the owners making the declaration before registry reside. If these dispose of their shares, or if the vessel be altered so as not to correspond with the description, the vessel must be registered again.6

A Certificate narrating the registry, with an account of the shares held by the several owners, on the back, is given to the master of the vessel as a testimonial of its bearing the character of a British ship. Security is given by the master and owners that the certificate shall be carefully preserved, and returned on the occurrence of any event which may render it no longer applicable. If the certificate is lost, the commissioners may, on proof of such an event, cause it to be renewed, on security for the restoration of the lost one if recovered; and if it be impossible, from the absence of the

18 & 9 Vict. c. 89, § 35.—2 Ibid. § 36.—3 Ibid. § 13.—a Ibid. § 28.— 5 Ibid. § 15.- Ibid. §§ 11, 31.- Ibid. § 23.