Scottish Court of Session Decisions

Subject_1 MILL.

Captain Urquhart
v.
Tulloch

1752, Dec. 29.
Case No. No. 1.

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The town of Forres, and its territory, is thirled to Captain Urquhart's mill, (which anciently belonged to the Abbey of Pluscarden,) for all grains consumed within the town and liberties. Tannachie's estate of L.200 or L.300 sterling of rent lies in the neighbourhood, and has no mill, nor water for one, and therefore he purchased a small feu on the side of the rivulet that runs by the town, and is within its liberties, and holds of the town, in order to build a mill to serve his lands of Tannachie, which are not thirled. He began the building, and Captain Urquhart obtained suspension, and pursued declarator that he could not build a mill within the thirl; and the case was this day reported by Lord Dun. Both parties cited Craig's authority, and the pursuer cited Lord Stain's, and 28th February 1684, M'Dowal against M'Cuiloch; 28th February 1695, Crawfurd of Carsburn against Sir John Schaw of Greenock; Drummond of Megginch against the Earl of Northesk; 19th December 1710, Magistrates of Edinburgh against Jean Alexander; and 18th July 1746, Mackie against Maltsters of Falkirk, where we discharged steel malt mills within the thirl, even though we found the invecta et illata not thirled. We found that the defender could not build a mill within the pursuer's thirl, and declared accordingly. I observed that it seemed implied in the very nature of the contract. The question cannot occur but when there is both insucken and outsucken; therefore suppose a Baron, having a mill in his barony, and both insucken and outsucken grinding at his mill, there being none other in the neighbourhood, or so convenient, feus out a part of his lands, but that he may not prejudge his mill rent, astricts the lands feued to his mill; the parties could not possibly mean that the vassal should not be allowed to grind his own corns in prejudice of the mill, yet he might grind other people's corns who also frequented the mill but were not astricted; and the case was the same if he feued or sold his mill and astricted his own lands to it, or if for any other valuable consideration an astriction was purchased; 2dly, That concessa quovis jure omnia concedi videntur, &c. but it was impossible for him to have any check upon abstractions if such a mill were built, especially here, where all consumed in that thirl was astricted, and consequently every cake or bannock to be eaten by the miller or mill servants of the new mill; but surely it was impossible to keep him from eating the multure of his own mill. Kames (who when at the Bar had written the defender's information) agreed with my reasoning where lands were feued under an astriction, but differed in this case, because it was not clear that the town was anciently astricted, or before two contracts in 1674 and 1696; and Dun also differed from the interlocutor, because it was to serve his own estate that the defender wanted this mill.