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What Title requisite in the Positive Prescription.
Subject_3 SECT. VII.
What Title requisite for Thirlage?
Buntein v. Boyd
1682.
January Case No. No 130.
Coming to mills belonging to subjects, without title in the master of the mill, does not infer thirlage.
Where a party has a charter with a clause cum molendinis, payment of insucken duty does not infer thirlage.
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Major Buntein, as having right to the lands of Kilbraid, having pursued Robert Boyd of Pittincross for astricted multures, as being thirled to the mill of Kilbraid; alleged for the defender, That the pursuer produces no title to instruct the constitution of the servitude of coming to a mill, albeit immemorial; being actus meræ facultatis will not infer a servitude, except in the case of the King's mills; albeit the servitude had been constituted, yet the defender cannot be liable, because he had obtained a charter from the Earl of Kilmarnock the pursuer's author, containing a novodamus, and bearing in the tenendas the clause cum molendinis et multuris, which is sufficient to liberate the defender from any such astriction, Craig, lib. 2. dieg. 8, § 12. Answered, That the lands of Pittencross being a part of the barony of Kilbraid, the defender and his predecessors have been in constant use to grind their corns at the mill of Kilbraid, and paid the insucken multures past all memory; and the charter bearing the novodamus cannot liberate the defender from the astriction, seeing the clause cum molendinis et multuris is only in the tenendas, and not in the dispositive part of the charter; as also, since that charter, the defender and his tenants did grind the corns at that mill, and paid the insucken multures as formerly. The Lords found, that the defender having a charter of novodamus, with the clause in the tenendas cum molendinis et multuris, and a certain duty pro omni alio onere, prior to the pursuer's right to the mill, and there being no constitution of the thirlage in writ, the paying of the insucken duty doth not presume thirlage; and therefore suspends the letters, and finds the defender free of thirlage.
Fol. Dic. v. 2. 105. Sir P. Home, MS. v. 1. No 111.
*** A similar decision was pronounced, 14th March 1635, M'Kay against Menzies, No 5. 1815., voce Brevi Manu.
