Scottish Court of Session Decisions

This was a special case presented for the opinion and judgment of the Court, in which the questions for decision were whether (1) payments for multures commuted under the Thirlage Act 1799 (39 Geo. III. c. 55), and (2) dry multures, were still exigible notwithstanding that the thirl mill had ceased to exist.

The parties to the case were (1) James Porteous, of Tufthills, Kinross, and (2) Alexander Price Haig of Blairhill.

The following facts were stated in the case:—“The first party is heritable proprietor of the lands of Tufthills, in the county of Kinross, conform to disposition in his favour, dated 10th and recorded 12th November 1892. Included in the said disposition there is a conveyance of Kinross Mill, which, however, at the date thereof was no longer in existence. The said mill was formerly a thirl mill, and the lands of Carsegour, Middle Tillyochie, and East Tillyochie, of which the second party is proprietor, were formerly astricted there-to. In 1806 and 1809 petitions were presented under the said Act (39 Geo. III. c. 55) by, inter alios, the proprietors of the lands of Carsegour and the Tillyochies for commutation of their thirlage. The rights of thirlage stated by the applicants consisted principally of multures and knaveships, but also included services in assisting in building and repairing certain parts of the mill-house, maintaining the roof, casting the dam, upholding certain parts of the troughs, and driving mill-stones, which services the applicants had been in the practice of rendering. The whole of these were found by the Sheriff in terms of the statute relevant to pass to the knowledge of the juries. After certain procedure verdicts were finally pronounced by the juries on 23rd November 1807 and 9th January 1810 respectively, commuting the thirlage of, inter alia, the said lands of Carsegour, Middle Tillyochie, and East Tillyochie, and the verdicts were registered as directed by the statute in the Particular Register of Sasines, &c., for Kinross on 3rd December 1807 and 11th January 1810 respectively. After the commutation had been made as aforesaid the owners of the said mill, which came to be held along with the estate of Tufthills, received payment from the predecessors of the second party, proprietors of the astricted lands, of the value of the commuted multures in lieu of the old multures, sequels, and services. In or about the year 1884 Kinross Mill was burnt down. In 1890 part of the site thereof was sold by the author of the first party under reservation of all thirlage rights. In 1892 the remainder of the site, along with adjoining mill lands, passed to the first party under the disposition above referred to. The first party has sufficient space on the remaining part of the old site and the adjoining mill lands on which to erect a new mill, but he has at present no intention of doing so. Payment of the commuted multures and services continued to be made by the second party and his predecessors to the owners of the mill and the site thereof up till 1897. Since that time the second party has refused to make the said payments, on the ground that they are no longer due. The second party has also since the said date refused to make payment of the sum which was previously paid by the proprietors of Carsegour to the proprietors of Kinross Mill as dry multure. The said dry multure was paid for bear growing on the lands of Carsegour, which were free from ordinary thirlage in regard to the said crop. In respect of the 14th section of the Act 39 Geo. III. c. 55, the said dry multure was not referred to the juries in 1807 and 1810. It consisted of three firlots of oats and two firlots of bear, and had been paid from time immemorial.”

The first party contended that he and his assignees and successors in the said commuted payments and dry multures

Page: 259↓

were entitled to exact the same in all time coming, and that such right did not depend upon the existence of the said mill. As regards both the commuted payments and the dry multure, the second party contended that these were of the nature of servitudes, which were necessarily extintinguished, or at anyrate which could not he enforced by reason of the destruction of the mill, which was the dominant tenement With respect to the commuted payments, the second party further on-tended that as these were partly fixed in commutation of the suckener's services in upholding the mill and its appurtenances, the mill-owner was bound to uphold the mill as a condition of exacting them.

The following was the question submitted to the Court:—“Is the first party entitled to exact payment from the second party, (1) of the sums commuted in the said verdicts so far as applicable to the second party's lands, and (2) of the dry multure applicable to the said lands?”

The Thirlage Act 1799 (39 Geo. III. cap. 55), enacts as follows:—“Whereas it is found by experience that the servitude of thirlage and right of mill services incident thereto in that part of Great Britain called Scotland are very unfavourable to the general improvement of the country by checking the industry of the occupiers of the ground, and by occasioning troublesome and expensive litigation; and that it is highly expedient that it should be allowed to persons subject to such servitude to compensate or to commute the same by a fixed annual payment in lieu and satisfaction of the said right of thirlage, and of all services, prestations, and restrictions thereto incident or pertaining, and in some cases to make an entire and complete purchase of the same for a fair and adequate price: Therefore be it enacted … that from and after the passing of this Act it shall and may be lawful for the proprietor or proprietors of any lands or tenements thirled or astricted to any mill in that part of Great Britain called Scotland, or to the proprietor of any mill to which the lands or tenements of any other person or persons are thirled or astricted, who shall be desirous to have such thirlage or astriction changed or commuted into such annual payment, to apply to His Majesty's sheriff or steward-depute of the county or stewartry in which such lands or tenements and mills are situated, or to his substitute, by a petition setting forth such his or their desire, and specifying the lands and tenements so thirled which he or they is or are desirous should be freed from such thirlage, and the mill or mills to which such lands or tenements are so thirled, and also the nature of the thirlage, the several species of corn or grain over which it is extended, the quantity of multure paid for grinding every sort of grain, the services dependent on the right, and the total amount of the multures and other dues claimed or allowed to be due,… which petition and answers the sheriff or steward-depute or his substitute shall immediately take into consideration, and within thirty days shall make an order or decree finding and declaring the precise matters in the said petition and answers which are relevant to pass to the knowledge of a jury in manner after mentioned; and twenty days from the date of such order or decree having elapsed, or in case of any advocation, suspension, or other stay by the authority of a superior court, within ten days after such advocation, suspension, or other stay has been discussed and removed, the sheriff or steward-depute or his substitute shall pronounce an interlocutor appointing a jury to be summoned on a certain day, to be expressed in the said interlocutor, at the distance of not less than thirty and not more than forty days from the date of such interlocutor, to give their verdict or determination on the matters contained in the said petition and answers and decree made thereon by the said sheriff or steward-depute or substitute, or by a superior court, in such manner and for such purpose as hereinafter is directed; and the said sheriff or steward-depute or his substitute is hereby directed and required to summon an assize,… who shall be sworn and coustitute a jury for the determination of the annual value of the thirlage, services, and prestations thereto annexed which is submitted to their consideration; before which jury and the said sheriff or steward-depute or substitute the said petition and answers and decree, together with such evidence as any of the parties may incline, shall be laid; which evidence shall be taken in writing and remain for four years at least upon record in the Court where it was taken; and after deliberating thereon and hearing parties and their procurators, if they shall desire to be heard, and upon a due consideration of all the circumstances of the case, the said jury shall, by their verdict or determination, fix and ascertain the amount of such annual payment in grain of such kinds and in such quantity and amount as to the said jury shall appear to be a just, fair, and equal value and compensation for the said right of thirlage, and all and every service, prestation, or restriction thereto annexed or incident; of which verdict or determination an abbreviate shall be registered by any of the parties in the General Register of Sasines at Edinburgh, or the particular register for the said county or stewartry, within sixty days after the pronouncing of such verdict or determination.… 5. And be it further enacted, that after such verdict and determination as aforesaid the servitude of thirlage, and all services, prestations, and restrictions pertaining or any way incident thereto, so valued by the said jury, shall cease to be exigible from or binding upon either or any of the parties, but that in lieu thereof the said proprietor or proprietors, occupier or occupiers of the thirled lands or tenements shall be bound and obliged to pay, and the proprietor of the mill to which the said lands or tenements are thirled shall be bound and obliged to receive annually, at

Page: 260↓

the mill where the multure under the former servitude of thirlage was in use to be paid, or at some other convenient place to be fixed by the jury, such quantity or amount of corn or grain of such kind or sort, kinds or sorts, as the said jury shall in manner aforesaid determine to be a just compensation or equivalent for such right of thirlage, or in the option of the payer, the value of such corn or grain in money, according to the value or price put upon such kind or kinds of corn or grain by the fiars of the county in which the grain is payable for the year within which such payment is due.… 10. And whereas the annual payment to be adjudged under this Act to the proprietor of a mill in lieu of the multures, mill services, and other rights front which the lands thirled are to he thereby relieved is meant and understood to be of equal value, and a full compensation for the discharge thereof, and in no ways to take from or diminish the value of his right as proprietor: It is further hereby enacted and declared that the discharge of the multures, mill services, and other rights belonging to a proprietor of a mill, as to the whole or any part of the lands astricted to it, and the substitution of an annual payment by way of compensation in place thereof in the manner above provided for, shall afford to such proprietor no ground or pretence for claiming relief from any part of the cess or land tax payable by him in respect thereof. 11. And whereas there is a kind of thirlage known in the law and practice of Scotland called a thirlage of invecta et illata, to which sundry towns … and the inhabitants thereof are subject, which thirlage it is expedient to allow to be purchased by the persons subject to the same, be it therefore enacted that if any inhabitant or inhabitants of such town … shall be desirous to purchase an exemption from the said servitude of thirlage,… it shall be lawful and competent to them to apply in manner above mentioned to the sheriff,… who shall take such proceedings and summon a jury in such manner as is hereinbefore particularly directed, which jury shall by their verdict fix and determine the full value in money of such right of thirlage in perpetuity,… on payment of which to the proprietor of the mill, such town … or such inhabitant or inhabitants thereof, formerly subject to such thirlage, shall thenceforth be for ever freed and relieved from the same. 14. Provided always, and it is hereby expressly enacted and declared, that nothing hereinbefore contained shall apply to the case where a permanent annual payment, either in money or grain, is already fixed or established under the name of dry multure in lieu of the servitude of thirlage, but reserving, never the less, to either party, as well the proprietor of the dominant as of the servient tenement, to apply in manner hereinbefore directed for commutating or compensating by such fixed annual payment as hereinbefore mentioned, all mill services and other prestations and restrictions, if any such are exigible, over and above the sum of money or grain payable in name of dry multure as aforesaid.”

Argued for the first party—The value of the right of thirlage which was commuted under the statutory proceedings was not the amount of the gross receipts taken by the proprietor of the mill, but the net profit remaining after deducting the working expenses of the mill. But according to the second party's contention the proprietor was bound to keep up the mill and pay the expenses of doing so, and yet he was only entitled to receive what had been shown to be the net profit after deducting such expenses. The obligation to keep up the mill was an incident of the servitude of thirlage, and that service in fact no longer existed, for the commutation which was introduced by the Act of 1799 was intended to putan end to the servitude of thirlage, and the incidents attached thereto, and to introduce a new arrangement by which a real burden was placed on the land in the shape of an obligation of payment, in place of the old servitude— Duchess of Sutherland v. Reid's Trustees, February 25, 1881, 8 R. 514. The case of Spottiswoode v. Pringle, July 14, 1849; Rankine on Land ownership (3rd ed), p. 400, Hope Collection, vol. 359 (11), referred to by the second party was precisely in point. (2) Dry multures were due under an arrangement equivalent to a statutory composition, the suckener being absolved from the obligation to take his corn to the mill to be ground, and the payment being accepted as compensation by the millowner for his loss of profit in consequence of not grinding the corn. Clearly, therefore, as the service to the mill had been extinguished, there was no obligation to keep up an efficient mill—Bell's Prin., sec. 1018; Erskine ii., tit. 9, sec. 28; Stair, ii., 7, sec. 16; Stuart v. Erskine, 1741, M. 16, 020; Kinnaird v. Drummond, 1675, M. 10, 862; Elphinston v. Leith, 1749, M. 16, 026.

Argued for the second party—(1) The effect of statutory commutation was not the substitution of a new right for a previously existing one, but merely the liquidation of the annual prestations in respect of it. Accordingly the old conditions of thirlage still prevailed, and one of these was that the mill must be in existence. It was true that the unreported case of Spottiswoode v. Pringle appeared to negative this contention directly, but on the other hand it was strongly supported by Forbes' Trustees v. Davidson, July 14, 1892, 19 R. 1022. It was true that the question there did not arise under the Act but under a deed of submission between the parties, but the terms of the submission were based upon the words of the Act, and there was no distinction in principle. (2) From the mode of the constitution of a right to payment of dry multures, viz., continuous payment of them for 40 years, it seemed clear that the original condition of payment—the existence of a mill—was not abrogated. It could not be the case that this condition was operative during the 40 years and ceased to be so at their expiry. In the

Page: 261↓

case of Kinnaird v. Drummond, supra, dry multures were treated as being in the position of a servitude, and if they were so, necessarily they must be in favour of a mill as the dominant subject, and would come to an end with it.

At advising—