Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Campbell of Kepock v. Tillichorlie and Others
Date: 24 June 1670
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There was a pursuit for a boat-mail against certain feuars; which servitude was imposed of old by the Abbot of Coupar upon the proper lands of the abbacy; after which thirlage, they were feued out to sundry vassals.
Alleged,—Absolvitor from that mail, because they have prescribed their freedom, they being free thereof by the space of forty years.
Answered,—Offers to prove, interrupted either by citation or possession within the forty years; as for the quantities, offers to prove they were used and wont to be paid by them and the other feuars of the abbacy.
Alleged farther,—The time of the imposing this servitude was before the lands were feued out, and when it was yet abbot's proper lands, at which time no servitude could be imposed, because res sua nemini servit. Item, the cause of it was that there being then no kirk at Cupar, the monks and tenants of the abbacy were forced to pass the water to the church of which stood on the other side.
This was repelled, seeing as a man may thirl his tenents to his own mill, so he may thirl them to a boat built by himself, and for the commodity of the inhabitants of his own ground; and this thirlage will affect the ground and pass with it, though it go through the hands of 1000 singular successors, and is most ordinary.
Act. Dinmuire.Alt. Falconer.
The parties were Campbell of Kepock against Tillichorlie and others.
Next day it being called, it was alleged for one of them, that they and their authors had their lands feued out to them for payment of such a feu-duty, without any mention of that servitude; and the same was imposed thereafter: which the abbot could not do, being then denuded, unless the heritor had consented.
