What Title requisite in the Positive Prescription.
Subject_3 SECT. VII.
What Title requisite for Thirlage?
Gordon of Midstreath v. Ross of Tillisnaught
1682.
December. Case No. No 131.
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A baron having feued a piece of land cum molendinis et multuris, and thereafter feued a mill, with the express astriction of the multures of these lands; and the heritor of the mill having possessed the astricted multures of these lands for the space of 40 years and upwards, he pursued the feuar of the lands for abstracted multures.
Alleged for the defender; That his right to the lands cum molendinis, was anterior to the pursuer's right to the null.
Answered for the pursuer; That he hath prescribed a right to the astriction, by 40 years uninterrupted possession,
Replied for the defender; The feuar of the land having granted a temporary bond of thirlage to the pursuer's author, obliging himself to bring his corns to the mill during his life, these years ought not to come in computo to make up prescription, seeing, during that space, the feuar of the land was not at liberty to go elsewhere, and so could not be understood to have voluntarily acquiesced to, or acknowledged the pursuer's posterior right of thirlage. Again, the possession ought to be ascribed to the bond as the proper title, and not to the infeftment in the mill: Besides, it is offered to be proved, that the pursuer's author had made use of the bond; and the bond being only a temporary right, could not be a title of prescription.
Duplied for the pursuer; That he denied any such bond was made use of; and esto it had, his possession ought to be ascribed to his infeftment, which was the more sovereign title; 2do, The pursuer being a singular successor to the receiver of the bond, and the bond not being transmitted or made over to the pursuer, he had no other title but his infeftment to ascribe his possession to.
The Lords, before answer, ordained trial to be taken in what way and manner the bond was used, and by which of the pursuer's authors.
