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James Wright, Tacksman of Milntoun-mill, v Thomas Rannie, Tenant in Huntlaw, and James Pringle, Tenant in Limpuckwells. [1768] Mor 16057 (13 December 1768)
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[1768] Mor 16057
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[1768] Mor 16057
Subject_1 THIRLAGE.
James Wright, Tacksman of Milntoun-mill, v. Thomas Rannie, Tenant in Huntlaw, and James Pringle, Tenant in Limpuckwells
Date: 13 December 1768 Case No. No. 109.
Thirlage of victual in general does not comprehend wheat, where the mill is not properly constructed for grinding it.
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The defenders, by their leases, were bound to grind all their grindable corns at Milntoun-mill; and, for some time after the commencement of their tacks, manufactured their wheat, with their other grain, at that mill; but some mills with marble millstones for grinding wheat having been erected in the neighbourhood, and they having carried their wheat to these, the pursuer brought a process against them for abstraction.
Pleaded for the defenders: The mill being a common corn-mill, is not fit for grinding wheat, and therefore that species of grain cannot be understood to be comprehended under the astriction; so it was found, 16th July, 1760, Couston, contra Tenants of Pitreavie, No. 104. p. 16047.
Answered for the pursuer: Wheat was in use to be sown in the defenders farms prior to their tacks, and yet they became bound to grind all their grindable corns at this mill. As the words comprehend wheat, so the practice of the defenders in carrying their wheat to the mill for several years after their tack, shews their sense that they were bound to grind it there. This being the case, it ought not to exempt them from the thirlage, that mills were afterwards erected of a better construction for grinding wheat. Improvements may be made upon mills of every kind; but that ought not to defeat contracts of thirlage entered into when such improvements were unknown.
In the case of Pitreavie, though it appeared that wheat had been sown in the land about a century before, yet it had been discontinued for a considerable time previous to the commencement of the tacks.
