James Bruce, Multurer of the Mills of Alloa, v. Robert Stein, and Others, Brewers in Alloa
Date: 10 March 1769 Case No. No. 112.
Thirlage acquired by prescription, upon a grant of the “mill and pertinents.”
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Charles Earl of Mar, in 1677, obtained a charter under the Great Seal of the lordship, barony, and regality of Alloa,”with the mill and pertinents thereof;” and another charter of like nature, and containing the same clauses, was afterwards expede by his successor, John Earl of Mar, in 1699.
These lands having come into the person of Lady Frances Erskine, an action of abstracted multures was brought by the tacksman of the mill against Robert Stein, and other brewers in Alloa, before the court of the barony.
The cause having been advocated by the defenders, it came out, upon evidence, that, for more than forty years, the brewers of Alloa had been in the use of grinding their malt at the mill of the barony, and of paying in-sucken multures; that sundry decrees had, in the course of that time, been recovered against the feuers for abstractions; that they had been in use of performing mill-services.
Pleaded for the defenders: Except in the case of mills of the King's property, or those belonging to churchmen, the mere use of grinding is not sufficient to establish an astriction; and the clause of “the mill and pertinents,” contained in the charters, can import no more than a conveyance of whatever thirlage might have been, ab ante, imposed.
The feu-charters granted in favour of the vassals uniformly bear the reddendo of a particular duty, pro omni alio onere: Which clause, however little it may imply liberation from a prior astriction, wilt at least be a strong circumstance to show, that it was not the intention of parties to introduce a subsequent thirlage.
Answered, for the pursuer: It is a point agreed by all our lawyers, that payment of dry multure continued for more than forty years is, per se, sufficient to establish a thirlage, since use of payment cannot be explained but upon the footing of a servitude.
Payment of in-town multures continued for the same period must receive the like construction; more particularly, where the lands of a barony are the servient tenement, and the mill of the barony the dominant; for such and so intimate is the connection of the lands of the barony with the mill of the barony, that the servitude is understood to have been actually reserved, unless the vassal have taken care to obtain an express immunity from it.
In this argument the pursuer is supported by the opinion of Lord Bankton, which is confirmed by an after decision in the case of the Earl of Hopeton against the Feuers of Bathgate, 21st November, 1753, No. 97. p 16029. Nor can any solid objection be founded upon the clause, pro omni alio onere, in the charters of some of the vassals, confined as it is, by the sense of the court, and the reason of the thing, to the feu-duty, nor ever extended farther.
The Lords, moved, not so much by the use of coming to the mill, which might have arisen from motives of conveniency, as by the decrees which had been taken in the baron-court for abstractions, and the presumptions in favour of the mill of a barony, found, “That the defenders are astricted to the mills of Alloa, and that they cannot erect steel-mills within the thirle.”
