Proprietor of thirled lands cannot build a mill within the thirle.
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M'Dougal of Logan pursues M'Culloch of ——, to demolish a mill he had built within his thirlage. Alleged, 1mo, A mill that has once gone 24 hours cannot be thrown down, ob favorem alimentorum. 2do, Though my lands be thirled to your mill, which is the mill of the barony, yet that cannot hinder me, unless my charter did expressly restrict me, to build a mill within my own lands, especially I having a clause ‘cum molendinis et multuris’ in the tenendas; seeing I am willing to declare that none within your thirlage should grind at my mill, but only others who voluntarily were pleased to come; and that Craig was clear of this opinion, L. 2. Dieg. 8. Answered, That the building a mill within his thirle could be interpreted to be done with no other design but in æmulationem vicini, and that it was tempting those within the sucken to abstract, and go away to that nearer mill; and whatever was Craig's opinion non refert: Yet he seems only to mean where one was thirled for a dry multure allenarly, ad annuam prestationem, that one so thirled might in suo molam edificare. The Lords on the report of Lord Boyne, find that the defender ought not to have built a mill upon the thirled lands, and that inest de jure, though he be not expressly restricted and prohibited in his charter; and therefore ordain the said mill to be demolished; but find that the defender is not obliged by the nature of his thirlage to go to the pursuer's wind-mill, but only to his water-mill to which he is thirled; and that notwithstanding of the alleged defects of the mill, find the defender liable for the multure of the abstracted corns, except those that are acknowledged by the pursuer; but find him liable for the hynd bolls; but declare that in case the time of the abstraction, the mill of the barony be not in condition to serve, then find the defender liable for the multure, but not for the small duties due for service.
M'Culloch having reclaimed against this interlocutor; and it being of new reported, how far one might build a mill within another's thirlage, they reviewed the affair, but still adhered to their former interlocutor, on the 13th March 1684. See Thirlage.
Fol. Dic. v. 1. p. 574. Fountainhall, v. 1. p. 276.*** Harcase reports this case:
In a declarator for demolishing of a mill, as newly built upon thirled lands, in prejudice and emulation of the thirlage,
Alleged for the defender; That he, as dominus of his lands, might build a mill thereon for grinding the corns of his other lands that were not thirled, and to serve for out-sucken multure, which is the opinion of Craig, lib. 2. dieg. 8. and the pursuer had no more prejudice by the building of the mill upon the thirled lands, than if it had been erected upon contiguous landsunthirled.
Answered; The thirled lands not being disponed to the defender cum molendinis, he ought not to build any mill thereon, to give a colour or occasion for abstracting of multures. And by the custom of baronies, house-mills and querns are always broke.
“The Lords sustained the answer, and decerned the mill to be demolished.”
