Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.

Stott
v.
Maxwell

Date: 22 January 1740

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[Kilk.; No. 3, Thirlage.]

The question here was, Whether use and wont for forty years, of paying insucken multures, and performing services to the mill, will, of itself, infer an astriction of thirlage, without any title or evidence of the constitution of the thirlage? The Lords found that it did; in respect the mill was a church mill, and the lands, said to be thirled, church lands; and churchmen nan tenentur docere de titulo, for which reason, with respect to them, long possession hath been sustained as sufficient to instruct even the property. This is the opinion of Stair, p. 291, but contrary to the opinion of Craig, and an express decision, 17th July 1677. Ross against M'Kenzie, reported by Lord Stair. It was objected, that there was no evidence of any possession while the mill was in the hands of churchmen; but that the forty years’ possession was after both mill and lands were in the hands of private persons. To which it was answered, That the possession was presumed retro to have been the same while the lands were in the hands of churchmen: Which the Lords sustained.

N.B.—It seems yet to be pretty much undetermined, what title is requisite in prescription of thirlage.