Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 THIRLAGE - PRESCRIPTION.
Subject_3 The plea of the Negative Prescription, founded upon only a partial possession having been had by the dominant tenement, not admissible to limit the extent of a thirlage of omnia grana crescentia constituted by writ, where the obligation of thirlage, as originally constituted, has been repeated in the successive investitures of the servient tenement, the latest whereof, in favour of the defender himself, was much within the years of Prescription.

James Simpson of Man
v.
Colonel Rorert Skene

Date: 25 January 1774

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[Faculty Collection, VI. 262; Dict., 10,746.]

Coalston. The investitures imply an astriction as to omnia grana crescentia, but the practice is for liberty. The defence is, that the clause of omnia grana crescentia has been limited by means of the negative prescription: the negative prescription cannot operate against the superior; but whenever the superior dispones the mill, the thirlage becomes the subject of a prestation to a third party, and may be the subject of negative prescription. The case of Grahame of Dougalston, in 1735, is as strong as any thing can be.

Justice-Clerk. When a superior stipulates a certain multure as the reddendo of the vassal, there can be no negative prescription. When a thirlage is constituted by acts of Court, or by possession, as in king's mills or church mills; this may be lost by negative prescription. There is a third case where a thirlage is established by covenant. Even in that case a contrary usage may derogate from the written obligation: but my difficulty is this: Here is not only an obligation in writing once expressed, but a series of feudal titles all uniform. Every renewal of the title was a fresh acknowledgment of the thirlage. Suppose Colonel Skene should admit a disuse of an hundred years, what can be said against the precept of clare in 1760? After a disuse of a hundred years, the parties may agree anew for a thirlage; how can the negative prescription operate against the feudal obligation in 1760?

Pitfour. The expression, all grain in growing on the land, may be limited by use to grain consumed in the family.

[This is inconsistent with the precept 1760, which expressly excepts teinds and horse corn.]

Gardenston. We have here not only an ancient astriction, but this repeated down to 1760: were this a new astriction, it would be good by the precept 1760. I thought that it was an established law, that a right provided in such writing could not be cut off by disuse in whole or in part.

Justice-Clerk. The family of Kinross is superior of the mill as well as of the lands, and is liable to Colonel Skene in warrandice.

On the 25th January 1774, “The Lords found that the defender was astricted as to omnia grana crescentia,” excepting teind, seed, and horse-corn; adhering to Lord Gardenston's interlocutor.

Act. A. Abercromby. Alt. A. Rolland.

Diss. Kaimes, Coalston, Pitfour, Alva, who were for a farther explanation of facts.