Bothwell of Glencorse v. Sir John Clerk of Pennycuick
Date: 25 November 1702 Case No. No 13.
Found that infeftment of a mill carried the ancient thirlage along with it, as a consequence, although the pursuer did not connect his right with the party who first acquired the thirlage.
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Bothwell of Glencorse, pursues a declarator against Sir John Clerk of Pennycuick, that his lands of Cooking are thirled to his mill; and craves the bygone abstractions since 1685. Alleged for Sir John, That the pursuer had not sufficient title to seek or declare this thirlage; for he produced nothing but a base infeftment in the mill, proceeding upon a disposition, contained in his contract of marriage in 1657: and, though he likewise produced a seu-charter in 1611, of his mill, from the Lord Salton to one Abernethy, yet he shewed no progress nor connection from that seuer, Abernethy; and, if he did not derive right from him, he could not claim the multures of the defender's lands of Cooking; unless he could, in the second place, say, that he prescribed it by forty years peaceable possession; any of which, either a connected progress, or immemorial prescription, he was willing to find relevant to infer the astriction of his lands to that mill; seeing, tantum præscriptum est quantum possessum, et non amplius.—Answered, Seeing you can pretend no right to the mill, I need produce no more than to shew your lands were once thirled to that mill, (which the charter and sasine in 1611 instructs,) and that I stand infeft therein; and I am not bound to produce a right from Abernethy, or a connected progress derived from him; as if I were pursued in a reduction and improbation; but my infeftment in the mill carries the ancient right of thirlage, in consequence, as a part and pertinent; and, unless the defender can say, he has prescribed liberation and immunity, by forty years going to other mills, and abstracting, and abstaining from coming to this, he says nothing.—Replied, Glencorse having no right, but what his father conveys to him, in his contract of marriage, whereon he is infeft base; this can never sustain his title to the multures of the defender's lands, unless he shew that his father had a, right; otherwise, it flows a non habente potestatem; and, by the decisions in Durie, particularly 12th July 1621, Douglas contra the Earl of Murray; 17th July 1629, Newliston contra Inglis; and 13th July 1632, Earl of Morton contra Feuers of Muckart;—the Lords found, that anciently astricted multures do not follow in consequence of a right that a party may acquire to a mill, unless these anciently astricted multures be likewise disponed, per expressum; and, that tenants going to a mill, can never oblige the master and heritor, without his own knowledge and consent, it being actus meræ facultatis, and free to go or not at their pleasure; unless there had been acts of courts, decreets, or other legal compulsitors forcing them.—The Lords sustained the purser's title; and found he needed not connect his right with Abernethy; and that his infeftment of the mill carried the ancient thirlage along with it as a consequence.—And I find this agrees with what my Lord Dirleton observes in his Doubts and Questions, p. 128. that vendita moletrina, licet non fiat mentio districtus, venit tamen, quia simplex rei alienatio pertinentias rei continet: And here the Lords declared the thirlage in favour of Glencorse, the pursuer. (See the cases above quoted, under Thirlage.)
