An ancient charter of lands, cum molendinis et multuris, sustained to inser immunity from thirlage, in favour of a succeeding heritor, who derived no right from the obtainer of the charter.
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The Lord St John, or preceptor of Torphichen, seus his mill, called the Breastmill, to one Dundas, in 1558, and thirls his whole barony of Oldliston thereto. James Dundas, now of Breastmill, pursues a declarator against Harry Sinclair of Carlourie, of thirlage and astriction, and for astricted multures.—Alleged, 1mo, That his lands of Over and Nether Carlourie, are no part of the lands astricited; in so far as their rights mention them only to lie within the barony of liston; which is different from Oldliston; which only is thirled by the orignal charter of the mill in 1558.—Answered, The designations are materially the same; and his lands are part of the barony of Oldliston —The Lords repelled the allegeance, unless Carlourie would prove, that liston was a separate distinct barony from Oldliston.—Alleged, 2do, That the Lord St John, superior of this mill, seued out the lands of Over Carlourie in 1543, to one Kincaid, cum molendis et multuris; which freed these lands of all thirlage, being 13 years before the mill was seued out; after which, the superior could not, by any subsequent deed, thirl or astrict these lands, by his charter of the mill to Dundas.—Answered, Harry Sinclair, now of Carlourie, cannot found on that exemption and immunity given to Kincaid; unless he can instruct a connected progress from him down to himself; for it is jus tertii for him, to found on charter whereto he shows no right.—Replied, if the deed were within these forty years, there might be some pretence to cause an heritor to show a connection, for establishing his right of property; but this charter of exemption being more than 150 years ago, it is impossible to demand a connected progress, only to exeem from a servitude; unless they will say, that Kincaid, or some in his right, had done some positive deed to astrict the lands, which they had got free, et tanquam optimum maximum. For, the superior being divested of the thirlage, by his charter in 1543, it was not in his power, by any subsequent deed, to resume the thirlage without Kincaid's consent.—Duplied, It was undeniable, but there might be two different progresses to the same land, with different holdings, reddendos and immunities; and yet the one cannot claim the privileges of the other. As, for instance, one holds lands in simple ward, another has taxed them; he who bruiks them by a simple ward-charter, cannot, for defending against his marriage, found on the taxing-charter of the other, from whom he derives no right.—Triplied, This case is not alike; for that is the privilege of the dominium directum and superiority; but this is an unfavourable servitude; the presumption lying for liberty and immunity.—The Lords at first found, That Carlourie could have no benefit of the charter of immunity, given to Kincaid; unless he instructed a connected title to these lands, from Kincaid. But afterwards, upon a bill and answers, and advising a probation, the Lords altered, and found it proven, That when Carlourie came to Breastmill, he paid a lesser duty than the in-town multures; and that the mill-horses, and not his own, carried the grain to the mill; and that they had not been in use, these forty years, of mending the mill-dams, carrying stones, or any such services: Therefore the Lords found, by a plurality of six against five, That the charter to Kincaid having extinguished any thirlage of these lands, it could not revive again without their own consent; and the lands were simply free, without the necessity of connecting a progress up to Kincaid, or down from him to the present heritor and possessor. Some thought the very paying of outten-town multure was a liberation from the thirlage; but others said, though there were sundry tacit implied ways to inser exemption from thirlage, as well as express discharge thereof; yet the paying a lesser duty than the rest of the astricted lands, was not such a presumption as could import a total liberation; but only a freedom pro tanto; these thirlages being regulated by use and wont of possession. In the point of connecting; some made a distinction, that if it was to a predecessor to whom they might succeed jure sanguinis, then a progress was necessary; but, if only an author, or singular successor, then it was not necessary, when he had another valid right to the lands without that*. (See Thirlage.)
Fol. Dic. v. 1. p. 1. Fountainhall, vol. 2. p. 342.
* Forbes reports the same case, thus:—In the declarator of thirlage, at the instance of James Dundas of Breastmill, against Henry Sinclair of Carloury, for declaring his lands of Over Carloury astricted to the pursuer's mill, which is the mill of the barony of Oldliston, whereof Over Carloury is a part:
Alleged for the defender: That the Lord Torphichen granted a, charter, in anno 1543, to Kincaid, of these lands of Over Carloury, cum molendinis et multuris, prior to the pursuer's charter of astriction; which must inser an immunity from thirlage, in favours of the defender, the present heritor.
Replied for the pursuer: The defender can have no benefit of immunity, by the charter granted to Kincaid, unless he can instruct a connected right from him. For, as there may be different progresses to the same land, with different holdings, reddendos, and immunities; as ost falls out, in the case of several adjudgers from a ward vassal, whereof one procures a charter, taxing the ward, and other casualities; while another's charter continues in the terms of simple ward: So the latter could not claim the privileges granted to the former, without deriving right from him.
Duplied for the defender: Though none can plead right to the lands, by virtue of any charter granted to a person he does not succeed to; the freedom and immunity of lands from thirlage, or any other servitude, may be conveyed without a connected progress: Because, liberty is presumed, and servitude must be proved, and cannot be inferred without a positive deed constituting the same; yea, even when constituted, is taken off and extinguished, by any discharge or renunciation, without farther solemnity, Stair's Instit. Tit. Servitudes Real, § 24. So that the lands becoming free thereby, are transmitted, with that freedom, to any succeeding heritor, without necessity of an express provision thereanent in his right. Nor can they ever be brought under the servitude again, but by the deed of the proprietor for the time. The parallel adduced, of a superior's taxing the ward-duties, in favours of one of several competing vassals, is no ways applicable to this case: For the casualities of superiority, remain with the superior; whose granting a taxing charter, can only be profitable to the person who has right to that charter; whereas a servitude being renounced or extinguished by the superior's deed, nothing remains with him to be given to any person by a subsequent grant; and the lands become and remain free for ever, unless a new servitude be imposed by the proprietor.
The Lords found, That the defender had the benefit of immunity from the thirlage, by the charter granted to Kincaid, of the lands of Over Carloury; albeit he instructed not a connection of his title from Kincaid; and therefore declared these lands free of the astriction. (See Thirlage.) Forbes, p. 120
