Henry Blair of Newtounmill, v. David Edgar of Kethick
Date: 26 July 1712 Case No. No. 7.
A bond of thirlage found a real servitude, good against singular successors, though no other possession was proved than that the granter sometimes went to that mill, and as often to others.
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Henry Blair having pursued a declarator of thirlage against David Edgar of Kethick, upon an old contract in the year 1633, betwixt John Edgar, then heritor of Kethick, and Patrick Blair, the pursuer's author, whereby the said John Edgar “obliged himself, his heirs, successors, and tenants of his lands, to haunt and repair to Patrick Blair's mill with their grindable corns to serve their houses and families for free multure, and good services, viz. a peck of six firlots, used and wont,” it was found relevant for the defender to free his lands of thirlage by the contract, that he was a singular successor to the said John Edgar, and the obligation never clothed with possession. The pursuer produced some witnesses for proving possession conform; who deponed, that the defender came to the pursuer's mill when he pleased, and went to other mills when he pleased, without being challenged; and when he came to the pursuer's mill, never paid knaveship, and the mill horses brought the corns to the mill, and carried home the meal.
The Lords found a thirlage constituted by the contract 1633, and possession thereupon proved by the above voluntary acts of coming sometimes to the pursuer's mill, though the defender was never interpelled or hindered to go to other mills, when he pleased, nor paid dry multure when he went by the pursuer's mill, in respect of his author's anterior obligation to come to the mill. But because the pursuer did found upon the depositions aforesaid, to instruct possession upon the bond of thirlage, and that bond mentions good services as the conditional terms of coming to his mill, the Lords explained these good services by the depositions, viz. that the defender should not be liable to knaveship, and that his loads should be carried to and from the mill upon the mill-horses.
