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Scottish Court of Session Decisions >>
Aikenhhead of Jaw v Russell of Elrig. [1697] 4 Brn 391 (10 December 1697)
URL: http://www.bailii.org/scot/cases/ScotCS/1697/Brn040391-0792.html Cite as:
[1697] 4 Brn 391
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Aikenhhead of Jaw v. Russell of Elrig
Date: 10 December 1697
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The Lords determined in the mutual declarators depending betwixt Aikenhead of Jaw and Russell of Elrig. Jaw acquired the property of a mill from the Earl of Calander, but the aqueduct of the same 1 uns out of Elrig Loch, and through the ground of Elrig on both sides, which lands belonged to the Duke of Hamilton, and were sold to Russell in 1650. Russell erects a new mill on his own lands, a little above Jaw's mill, and makes sluices both on the loch and the mill-lead; whereupon Jaw, novi operis nuntiatione, interrupts him, and raises a declarator, that Elrig should demolish his mill, and could not divert the natural course and channel of the water to the prejudice of his more ancient mill, nor make the water flow otherwise than it was wont to do through his aqueduct, whereof he had been in the continual and uninterrupted possession. Elrig opponed his declarator, That it was lawful for him to build a mill upon his own ground, et uti jure suo, it not being in œmulationem vicini; and that the aqueduct was, quoad both sides, on his ground, and he had been in the constant possession thereof; and the drawing the water into his own mill did not prejudge him; and, esto it did, it was but per accidens, and he was not liable for the damage: and the aqueduct passing through his ground, he might stop it as he pleased.
Answered for Jaw,—That he had prescribed the servitude of the mill-lead by forty years' peaceable possession, which was as sufficient to give him right as Elrig had to the property.
Replied,—Any possession he had was precarious, and by tolerance of the heritors of Elrig; in so far as it was agreed betwixt them, that Jaw should have the use of the aqueduct, and for that cause Elrig should have his corns ground multure free.
Duplied,—This can only be proven scripto vel juramento, against his express infeftment, not only in the mill, but its leader. Triplied,—His old infeftments bear only, The mill with its pertinents: It is true, his last charter from my Lord Calander, in 1668, bears likewise the aqueduct; but Calander, not being heritor or superior of Elrig, could not give it.
The Lords found it relevant for Elrig to prove, by witnesses, that Jaw grinded his corns multure-free; and that it was understood he had this exemption for allowing Jaw the use of the aqueduct, so as there was a synallagma, and the one was the mutual cause of the other, so as to infer an interruption of the prescription of the servitude upon Elrig; and to prove that Jaw's possession was merely precarious and by tolerance; and that Jaw had failed on his part, bv exacting multure from Elrig and his tenants. But Jaw may offer to repair the damages quoad bygones, and to serve him gratis in time coming.
De Molendinis Structis in œmalationem vicini; vid. Snieidewin ad sec. 2. Instit. de Rer. Dir.; Hering. de Molendinis; and Dirleton, voce Molendinum.
