Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.

Crichton of Milhorn
v.
Meik of Leidcassie

Date: 4 January 1695

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The Lords thought the feuars of Milhorn preferable. Both the mills belonged of old to the Abbot of Couper; and, when in his hands, he made acts of court, That when they could not be served at Milhorn, by drought or frost, that then they should go to Leidcassie. Afterwards he feus out Milhorn cum astrictis multuris dominii de Couper tam liberis quam siccis; and, subsequent to this constitution of thirlage, he feus out also the other mill of Leidcassie, but simply without any astriction to it at all. So the Lords thought the prior acts of court could give no right to Leidcassie; and that their going to it when Milhorn wanted water could not prescribe a right to this second qualified thirlage; and that there was no prescription, there being plain interruptions within the forty years; and, if this were allowed, the thirlage of the first mill might be wholly evacuated, by keeping up their corns till that accident of the want of water happened: especially seeing the heritor of the second mill had purchased in some of the thirled lands, the first feu-charter bearing dry multures.

Vol. I. Page 655.