What Title requisite in the Positive Prescription.
Subject_3 SECT. VII.
What Title requisite for Thirlage?
Dog v. Mushet
Date: 5 February 1635 Case No. No 117.
A party was infeft in a mill, the only mill of the barony, with the astricted and thirled multures of the whole barony. This found sufficient title to pursue for abstraction, if the lands are part of a barony which had been once the King's property.
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One Dog pursuing Mushet, for abstracting of his corns, growing upon his lands of——, which lands are of the Lordship of Cessintullie, in the mill of the which Lordship the pursuer is infeft, with the astricted and thirled multures of the said whole Lordship; and the defender alleging, That the pursuer's sasine of the mill foresaid, and thirled multures therein contained, cannot furnish this action, except that the pursuer could qualify and prove, that either the defender was thirled to the said mill, by some clause of his infeftment, which astricted his lands thereto, or else by some other act and constitution of thirlage, or other lawful writ, which might astrict him to the said mill; this exception was repelled, in respect of this reply, which the Lords sustained, and admitted to the pursuer's probation, viz. That the mill libelled is the sole and only mill of this barony belonging to the King's Majesty, and that the defender's lands libelled are a part of the said Lordship, and that the heritors thereof have been in use past memory of man, to come and grind their corns of the saids lands at the said mill, as thirled thereto, and to pay therefor the quantities of the multures acclaimed, and to cast the mill-dams, and to lead the mill-stones, and to repair the mill; which use and consuetude in the King's mill is sufficient, albeit more is required in mills pertaining to private persons; which reply being proved, the Lords found as sufficient to constitute a perpetual thirlage, as any writ or constitution, being in the mill of the King's barony.
Act. —.Alt. Dunlop.Clerk, Gibson.
Fol. Dic. v. p. 105. Durie, p. 749.*** Auchinleck reports this case:
John Dog infeft in the mill of Cessintullie, with the multures, pursues certain vassals of the barony of Cessintullie (which is a part of the King's property) for abstracted multures. It is alleged no process, except it were libelled per expressum, the defenders were astricted either by their infeftments, or by lawful acts of thirlage. To which it was replied, That it is sufficient that the pursuer was infeft by the King in the said mill, with the said multures, used and wont, and this is the mill of the barony whereunto the defenders have been in use to come in time bygone. The Lords repelled the exception, in respect of the reply, and this was the King's mill of the—, but in other private men's mills, astriction is requisite, either by infeftments, or acts of thirlage, as was found in the action pursued by James Crawford against the Feuars of Muckhart, No 108. 10853.
