The Laird of Cockburn v. The Feuers of the Tenements of Dunse
1686.
December.
Case No. No. 49.
An obligation to grind at a certain mill the corn needed for Family use, infers no prohibition from buying meal.
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The charters of the little feuers about Dunse, and the charters of the heritors of tenements within the town, containing a clause obliging them to grind so much of their corns at Sir James Cockburn their superior's mill, as should suffice for the sustentation of their families, Sir James pursued both for abstracted multures.
Alleged for the feuers of the out-town lands: That if they grind corns at any mill, they were content to grind so much thereof at the pursuer's mill as should sustain their families; but they thought not themselves hindered, by the clause in their charters, to sell their own corns and buy meal. And as an astriction of grana crescentia et invecta (which is a larger servitude) doth not hinder selling, but only comprehends what tholes fire and water; far less can selling in this case of a lesser servitude be understood a contravention of the clause.
Answered: If it were allowed to humorous persons to sell their own corns and buy meal, this would take off the whole effect of thirlage; and here the astriction is considerable, being of the sixteenth corn.
Alleged for the feuers of the town tenements, That the clause could not oblige them, who had no corns growing, to buy corns and grind; but the meaning must be, that if they bought corns, they should prefer their superior's mill to another.
Answered: The clause astricting the sixteenth part, which is more than insucken multure, must import an obligement to grind.
The Lords found, That if the feuers who had no corns growing, bought corns, they ought to prefer their master's mill; but that they might buy meal as they thought fit.
