Objection, that a mill and multures making part of the valuation can have no share of the commonty, repelled.
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In the process of division of the commonty of Balmacruchie, it was objected to the claim of Patrick Small of Kindrogan, advocate, one of the proprietors of the barony, that the valued rent upon which he founded his claim to a proportion of the commonty, was partly composed of the mill of Pitkermuck, which, though valued in the cess-books, did not entitle him to any share of the commonty. The Lord Ordinary, “in respect it appears from the pursuer Mr. Small's title-deeds, that he is vested in the town and lands of Milltown and Pitkermuck, with the mill and mill-lands thereof, with multures, knaveship, and sequels of the same, and other pertinents therein mentioned, and also with the rest of the town and lands of Easter Pitkermuck; and that it is averred, and not denied, that he and his predecessors, being possessed of all these subjects, have regularly paid cess and public burdens on a valuation of £172. 13s. 4d. being the amount of three articles stated in the valuation books of the county, for the pursuer's father's property, though shortly entered under the names of Pitkermuck, mill of ditto, and Wester ditto, are properly ascribable to the said lands, the property of the pursuer; Therefore repels the objections, and sustains the pursuer's right and title to get a share in the division of the commonty in question, in proportion to the said sum of £172. 13s. 4d. being the amount of the said three articles of valuation stated to him in the cess or valuation books of the county.”
Neil Fergusson of Woodhill, and others having interest in the commonty, presented a f petition to the Court against this interlocutor; and
Pleaded: If the division is to be regulated by possession, a mill, which cannot exercise any act of possession, either by pasturage, or by casting feal and divot, has no title to a share of a commonty. The interest of parties is generally ascertained by the number of cattle that the dominant tenement can maintain in winter, but a mill is a tenement which cannot maintain cattle, and which has no occasion to cast feal and divot, those thirled to it being bound to keep it in repair. If, again, the division is to be regulated by the valuation of the mill, as stated in the cess-books, it will be entitled to a great proportion of the whole commonty belonging to a large tract of country. The mill is ah estate created by the sucken, and it would be most unjust to make this estate of their own creation for a particular purpose, the means of depriving the adjacent proprietors of part of their property. Suppose the proprietors had purchased their right of thirlage, it could never be maintained that the thirlage, so extinguished, could compete with all their own lands in the division of a commonty.
The statute for the abolition of thirlage, shews that a mill cannot be considered as having any interest in a commonty, both because nothing is appointed to be valued, except the multures, and because when the multures are sold, the valuation which arose from them does not remain attached to the mill, but is united with the valuation, of the lands from which the multures originally issued. A proprietor of a fishing is not entitled to a share of a commonty proportioned to the valuation of his fishing; and still less is the proprietor of a mill, independent of the lands attached to it. The cumulo valuation of the mill and mill lands ought therefore to be separated, and a portion of the common corresponding to the lands only, should be allotted.
Answered: The statute for the division of commonties declares, “That the interest of the heritors having right to the said commonties, shall be estimated according to the valuations of their respective lands and properties.” The object of the enactment was to preclude all such discussions as are here attempted, by establishing a positive rule to be applied in all cases and circumstances. But, if this was deemed expedient at the time of the enactment, so recently after the valuation of the lands in Scotland, and when the evidence on which they proceeded might have been extant, it is of much more consequence to adhere to the rule now; for the matter would be perfectly inextricable, if it were necessary to go into an inquiry, in every case, into the situation of lands at the time they were valued. Accordingly, the rule of dividing by the valuation, has, for the best reasons, been held fixed and unalterable.
But, supposing such a discussion were competent, there is every reason to think that no part of the valuation of the mill of Pitkermack was attached to the mill or multures, but that it ought to be ascribed to lands which must have been then possessed by the mill, and which at present belong to its proprietor. When the general valuation took place, it was intended to select those subjects only which could bear the burden of taxation at all time; and, as multures are merely an incumbrance on property, and might be extinguished by the negative prescription or otherwise, they were seldom included in the valuation, except when they were very considerable, but in this case, they must at that time have been very insignificant. The valuation clearly applies to the lands attached to the mill, and not to the machine itself.
The statute for the abolition of thirlage affords no argument, both because it had no view to the division of commonties, and was intended merely to ascertain the commutation equivalent to the right of thirlage; and, instead of the valuation passing from the owner of the mill to the owner of the lands, it is expressly provided, that the situation of parties as to the land-tax and other public burdens shall remain as before.
Upon advising the petition with answers, the Court “adhered.”
Lord Ordinary Justice Clerk.Act. Ross.Agent, James Keay.Alt. Craigie.Agent, Ja. Laidlaw, W. S.Clerk, Home.
Fac. Coll. No. 144. p. 324.
