Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Sinclair of Haddows-mill v. Duff of Braco
Date: 13 November 1694
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Sinclair of Haddows-mill, against Alexander Duff of Braco, about a thirlage. Sinclair's active title was a charter of the mill, granted by Frendraught, bearing, per expressum, the multures of these lands of Turtrie, now belonging to Braco. His defence was,—My lands never belonged to Frendraught, nor lay within his barony, but are a part of the barony of Rothemay; and my authors, long prior to 1632, which is the date of that charter of thirlage, were infeft cum molendinis et multuris, and so not liable.
Answered for the pursuer,—That, as he had a title of prescription, (though it were a non domino,) so he had forty years' possession since, which, by the Act of Parliament 1617, was sufficient; unless they founded on interruptions, not of a few acts of withdrawing, but public and solemn.
The Lords found, That, in prescribing of property, any title, though never so null and invalid, was sufficient, if clad with forty years' uninterrupted possession; but, in thirlage, (where the lands are not a part of the barony,) any withdrawing was enough to interrupt, seeing it was actus merœ facultatis, and their own mill was then ruinous; whereas, in other cases, it must be a forbearance for a considerable tract of time together. But here, where the thirled lands are no part of the barony, and that it is not a King's mill, the same acts that constitute may also take it off. See June 29, 1665, Heritors of Keithock's Mill against The Feuars, where they are found thirled to the mill, because within the barony, and had paid insucken multure.
There were other acts of interruption proponed here, as also upon an agreement. But the Lords decided on the first point.
