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The following circumstances were found sufficient to infer astriction, viz. 1st, 40 years use of coming to the mill, and paying in-town multure, though a very small matter more than was paid by the out-sucken; 2dly, A paction between the miller and the tenants, whereby the miller quitted his knaveship, upon the tenants' passing from meat, which they had been in use to get from the miller when they came to the mill, and from sieves which the miller had been in use to furnish them, neither of which the out-sucken ever got; 3dly, The tenants' paying for the multures of sold corns; and lastly, Two tacks, whereby the heritor took the tenants bound to carry their corns to the mill in question, thouglh of a late date, one being set in 1712, the other in 1721, and by a singular successor.
Kilkerran, No. 4. p. 573.
*** This case is reported by Lord Kames:
Fletcher having abstracted his corns from the mill of Glaswell, Brown, the proprietor of the mill, brought a declarator of astriction, with a separate conclusion against the tenants of Ballinsho for mill-services. A proof being admitted, before answer, the pursuer brought sufficient evidence, that the possessors of Ballinsho had, as far back as could be remembered, frequented the mill of Glaswell with all the corns they had occasion to grind, paying in-town multure; the mill-master, on the other hand, carrying their corns to the mill, and furnishing them sieve, riddle, and canvas, beside entertainment. There were also several tacks produced by the proprietors of Ballinsho, taking tenants bound to frequent the mill. But no evidence was brought of mill-services.
At advising this proof, the defender relied upon the opinion of Craig, Lib. 2. Dieg. 8. § 7.; of Stair, B. 2. Tit. 7. § 17.; and the authority of several decisions concurring, that the immemorial use of frequenting a mill, and of paying in-town multure, is not sufficient to constitute a servitude of thirlage. The pursuer did not controvert this principle; but observed, that what was sufficient to constitute a thirlage, and what was a sufficient presumptive evidence of such a constitution, were different points; that Craig and Stair, in the cited passages, treat only of the former; whereas the latter is the present case. The pursuer and his authors were all infeft in the mill, cum multuris usitatis et consuet. which is evidence that some lands have been thirled. And what better explanation can there be of a general clause, than immemorial possession of the multures of Ballinsho; which is presumptive evidence, of the strongest kind, that the lands of Ballinsho were meant in the several infeftments.
“The Lords found there is sufficient proof of the astriction of the grindable corns growing upon the defender's lands to the pursuer's mill, for payment of the multure and knaveship therein specified; upon the mill-master's carrying the tenants' corns to the mill, and giving them sieve, riddle, and canvas, and entertainment during the time they are labouring their corns. But that the tenants are not liable to bring home the millstones, clean the mill-dam, repair the mill nor mill-houses, nor to perform any other service.”
