Scottish Court of Session Decisions

Subject_1 MILL

Crawford of Carsburn
v.
Sir John Shaw

Date: 28 February 1695
Case No. No 5.

Found in conformity with the above.

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The Lords determined the controversy betwixt Crawford of Carsburn and Sir John Shaw of Greenock, about the thirlage to Greenock's mill; and they adhered to their former interlocutor, declaring the thirlage in Greenock's favour notwithstanding the prior resignation and infeftment in Carsburn's person, cum molendinis et multuris, and the practique cited in 1691, Newbyth contra Whitekirk; See Thirlage. Then Carsburn insisted on that conclusion of his summons, seeing no more was thirled but his grana crescentia, and that he had a burgh of barony wherein corn was daily imported, of the growth of other lands, that quoad invecta et illata he might build a mill of his own, to which it might come, and which could not be construed to be in emulation of Greenock, seeing he was to take nothing of his thirlage from him; and Craig, speaking of mill-multures, thinks any heritor may build a mill on his own property, though his lands be thirled to another mill, providing he do no wrong thereto, but only take out-landish sucken, and not grind corns that are astricted. But this is a temptation to transgress, and the remedy the other has of pursuing them for abstracted multures, when the transgress is not sufficient. And the decision Skene and Dundas, No 5. p. 5008.; does not come up to this point; for there it was controverted whether Hallyards was thirled or not; and therefore the Lords would not, medio tempore, ordain his mill to be summarily demolished; and therefore the Lords discharged Carsburn to use either hand-mills or curns in prejudice of Greenock's astriction.

Fol. Dic. v. 1. p. 574. Fountainhall, v. 1. p. 674.