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Scottish Court of Session Decisions >>
Dow of Glendymilne v Burt. [1696] Mor 15989 (20 June 1696)
URL: http://www.bailii.org/scot/cases/ScotCS/1696/Mor3615989-052.html Cite as:
[1696] Mor 15989
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The question was, where there was a bond of thirlage astricting lands to a mill, not as to omnia crana crescentia or invecta et illata, but only for what grain they should grind for the use of their own family, and did not mention the minor services of helping home with the mill stones, repairing the mill dams, &c. whether these be included and comprehended? Allegded, minus inest majori, and these lesser servitudes are but pendicles, and necessary consequents of the astriction.
Answered, The presumption lies for liberty against servitude, unless they be introduced either by express paction or prescription: The 1st was not pretended, neither could the 2d take place; the bond of thirlage being only granted in 1670, and he had a feu charter two months prior to the bond bearing a reddendo pro omni alio onere; but the Lords having read the charter, and it wanting cum molendinis et multuris in the dispositive clause, they found this thirlage was but in the case of any other astriction, (seeing it mentioned they stood thirled before the same,) and therefore carried all the lesser burdens and services along with it, though not expressed. This is conform to a decision, 27th February, 1668, Maitland against Lesly, No. 35. p. 15978. Yet law says, unumquodque prædium præsumitur liberum.
