A miln once set a going for 48 hours, cannot be demolished brevi manu. A proprietor may hinder the building of a miln-dam on his ground, without necessity to allege detriment.
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Hay of Strowy being infeft in the miln of Strowy, and having lately built a waulk-miln, and made a new dam-head therefor over that burn, which is the march betwixt him and the feuers; thereupon the feuers demolished the miln and the dam. He now pursues the feuers to hear and see it found and declared, that he has right to enjoy the wauk-miln and dam, and that they did wrong at their own hand to demolish the same. It was alleged for the feuers, and the Laird of Keir their superior, absolvitor; because the building of this miln being novum opus, they might lawfully stop the same, and might demolish the dam, the end thereof being fixed upon their ground, without their consent. The pursuer answered, 1st, Albeit the defenders might have impeded while the work was doing, yet they could not, after the waulk-miln was a going miln, demolish the miln, or dam thereof, via facti, albeit they might have used civil interruption, and stopped it, via juris; because it is a known and competent custom, that a going miln cannot be stopt summarily, being an instrument of service for common good. 2dly, The defenders could have no detriment by putting over the dam, because it was a precipice at their side to which the dam was joined, so that they had no detriment, either as to the inundation of their ground, or watering. The defenders answered, That cui-libet licet uti re sua ad libitum, and they were not obliged to dispute whether they had damage or not, but might cast down the dam built on their ground unless their consent had been obtained; and that there is no law nor decision for such a privilege of milns, neither was it ever extended to waulk-milns.
The Lords found the defenders might hinder the building of a dam upon their ground, without necessity to allege detriment; but they found, if the waulk-miln was a going miln forty-eight hours, that the defenders could not brevi manu, without the authority of a judge, demolish the dam or miln.
Fol. Dic. v. 1. p. 116. Stair, v. 1. p. 464.*** Lord Dirleton reports the same case:
It was found, That a miln-dam could not be drawn from one side of a burn to another, without a servitude or consent of the heritor having lands on the other side; and that the heritor is not obliged to debate, whether he had prejudice or not; the lands on the other side being his, and the burn medio-tenus. 2do, It was also found, That he might lawfully demolish the dam; unless it were alleged, that the miln had gone the space of forty-eight hours; so that it might have come to his knowledge that it was a going miln.
