What Title requisite in the Positive Prescription.
Subject_3 SECT. VII.
What Title requisite for Thirlage?
Sir George Kinnaird v. Mr John Drummond of Meginch
Date: 22 July 1675 Case No. No 123.
Forty years payment of a dry multure, without interruption, infers a servitude, without any document.
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In a pursuit at John Hutton's instance, as having a tack of the mill of Auchmuir from Sir George Kinnaird of Rossie, against the Laird of Meginch, for payment of six firlots of ring bear yearly, whereof the defender's author, Sir Peter Hay of Meginch, had been ay in continual use of payment; it was alleged for the defender, That his author's use of payment could not infer a servitude upon his lands, to pay any multure to the pursuer's mill; because, he was noways astricted by infeftment, or act of Court; and a naked possession is not sufficient in law to constitute thirlage to any mill, unless it were within the King's property, which hath only that privilege, but not the mill of any subject. It was replied by the pursuer, That the defence ought to be repelled; because he held the said mill of Auchmuir of the King, and the said ring bear being constantly paid, which was a dry multure, continual possession, past 40 years, was a sufficient title.—The Lords did repel the defence; and found, that, albeit the use of going to mills, past memory of man, and paying multures for corns ground thereat, could not be a title to infer a servitude, except the mills were of the King's property, upon that ground, that the going to any other mill might be for convenience and voluntary, whereas, all servitude upon lands ought to have a title; yet continual payment of dry multure, where corns are not brought to mills, necessarily supposes a constitution of a servitude, and payment by the space of 40 years, with uninterruption, gives a legal title by prescription.
Fol. Dic. v. 2. p. 105. Gosford, MS. No 790. p. 497.*** Stair reports this case:
1675. July 23.—Sir George Kinnaird, and one Hutton his tacksman of his mill, pursue Mr John Drummond, and his Tenants of Meginch, for six firlots of ring bear, which is a dry or stocked multure for the bear, with a privilege of being first served, and which bear the pursuer and the millers had been in possession of above 40 years. The defender alleged, Absolvitor; because there is no astriction of his lands of Meginch libelled or instructed, and use of payment was never found sufficient to constitute thirlage, except in King's mills of the King's property. It was answered for the pursuer, That, albeit the use of payment doth not ordinarily infer astriction, because it is interpreted not to be necessitatis, but voluntatis; but where it is a dry multure, by which the multure of bear is liquidated and stocked to such a quantity, which is payable for the land, though there were no crop upon the land, and beyond which nothing can be demanded for the multure of the greatest crop of bear, 40 years possession of such a multure hath always imported thirlage, and not a coming to the mill, and payment at pleasure.
The Lords found, that 40 years possession of a dry multure was sufficient to constitute thirlage, without any other document or instruction.
