Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION. 1684 and 1687.
Sir Patrick Home v. Home of Linthill
Click here to view a pdf copy of this documet : PDF Copy
See the prior parts of the Report of this case in the Index to the Decisions.
1684. November 21.—Sir Patrick Home and Linthill's case, mentioned 24th November 1683, was debated and decided; and Linthill alleging that Sir Patrick could not lay his dam upon his ground:—Answered,—The ground on the other side was the commonty of Eyemouth, wherein Sir Patrick had also interest. 2do, Thir mills being built super flumine publico, usus riparum in such rivers is public.
But this is only for unloading goods, but not for a permanent burden: § 4, Institut. de Rer. Divis. et l. 5, de eodem tit. And Craig, lib. 2 feud. dieg. 8, asserts, that, even in flumine privato, pro reparando aquæductu vel clusa molendini, licet imponere ligna vel lapides in fundo vicinorum, iis invitis.
Yet the Lords found Linthill had proven his interruption, tarn via facti quam juris, of Sir Patrick's forty years' possession of that mill; and that Sir Patrick's mill makes Linthill's restagnate; and therefore assoilyied Linthill from his declarator, and found Sir Patrick could not impose a servitude of laying over his dam-head on Linthill's side of the water.
But Sir Patrick now thinks that his mill will go, though he do not build his dam-head close to the other side of the water, but mid-stream and more.
The words of the interlocutor were:—The Lords sustain Linthill's interruptions via facti, notwithstanding the agreement in 1625 produced, betwixt the Laird of Ayton and the Laird of Wedderburn; both because it is not instructed that Ayton was Linthill's author in thir lands, and that the said contract is only a personal deed, and Linthill is a singular successor; and therefore assoilyie Linthill from that point, whereby Sir Patrick craved power to affix the land-staill of his dam-head on the other side of the river, whereof Linthill has either right of property or commonty.
That reason of its being personal seems not good; for, in servitudes, (v. g. a bond of thirlage, &c.) a personal right is sufficient to constitute them without infeftment, even against a singular successor, where the bond is clad with possession. See Dury, 18th January 1622, Turnbull against Blanerne; and 12th March 1630, Town of Edinburgh against Leith, where an old servitude of girnelling is declared.
Vol. I. Page 313.
1687. January 22. —Sir Patrick Home, advocate, against Home of Linthill, anent the mill at Eyemouth, mentioned 21st November 1684. The Lords, having considered the report of the probation, found this mill occasioned no restagnation to Linthill's mill; but, the land on the other side being Linthill's, they would not suffer Sir Patrick to lay his dam-head on that land, but to keep it on the trough of the water, and so in alveo as that it be not in the dead water, but in the middle of the current or stream.
