Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Murray of Polmais v. Stirling of Carden
Date: 26 November 1684
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The Lords advised the report of the visitation made between Murray of Polmais, and Stirling of Carden, upon this point, How far Carden's new built mill, half a mile below Polmais's old Carse-mill, on Bannockburn water, did prejudge the said old mill, by making it restagnate; or did undermine his banks, or spoil his fishing or grass-bleaching: and found this new mill having gone this twelve months only, no measures could be taken of the prejudice it does to the superior old mill, the last winter being extraordinary through the long frost, and the last summer by drought; and so these, being de raro contingentibus, could make no rule; l. 3. D. de Legib. Therefore, they ordained the same visitors to go again upon the ground, and take the height and the declivity of both grounds, and of the two mills, and the prejudice arising from the restagnating, or otherwise, and if it results by Carden's dam-head: for it was alleged for him, that this was fallacia non causæ pro causa; seeing, before the erecting of Carden's mill, the Carse-mill and its tail-dam used, by spring tides of the sea, or inundations, to be put in back-water: and witnesses might indeed depone on the effect, for that was obvious and visible, falling under the senses; but the true cause of it did not always appear, and might be very latent.
But the parties were ordained to wait on the Chancellor first, to see if he could agree them. Drumcairn was declined, because the young Lady Polmais, Durie's daughter, was his niece.
