Porteous v Haig
| Jurisdiction | Scotland |
| Judgment Date | 15 January 1901 |
| Docket Number | No. 56. |
| Date | 15 January 1901 |
| Court | Court of Session |
Lord President, Lord M'Laren, Lord Kinnear.
ServitudeThirlageStatutory CommutationDry MulturesDiscontinuance of millThirlage Act, 1799 (39 Geo. III. cap. 55).
Held that (1) commuted payments in lieu of thirlage and services fixed by a verdict under the Thirlage Act, 1799, and (2) dry multures continue to be exigible notwithstanding the discontinuance of the mill.
Spottiswoode v. Pringle, July 14, 1849 (unreported but noted in Rankine, Land-Ownership (3d ed. p. 400), followed.
Forbes' Trustees v. DavidsonSC, July 14, 1892, 19 R. 1022, distinguished.
This was a special case in which the question for the decision of the Court was whether the proprietor of lands who had a title to a thirl mill which had ceased to exist was nevertheless entitled to exact payment of (1) the sums commuted for thirlage by a verdict obtained under the Thirlage Act, 1799 (39 Geo. III. cap. 55),* and (2) dry multures.
The parties to the case were James Porteous of Turfhills in the county of Kinross, first party, and Alexander Price Haig of Blairhill, second, party.
The following facts were stated in the case:
(1) The first party is heritable proprietor of the lands of Turfhills 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 thereto.
(3) In 1806 and 1809 petitions were presented under the said Act [Thirlage Act, 1799] 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 millstones, 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 23d 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 3d December 1807 and 11th January 1810 respectively.
(4) After the commutation had been made as aforesaid, the owners of the said mill, which came to be held along with the estate of Turfhills, 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 had 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. On 10th March 1900, the first party obtained an assignation of the verdicts obtained on 23d November 1807, and 9th January 1810.
(5) 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.
(6) 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 3 firlots of oats and 2 firlots of bear, and had been paid from time immemorial.
(7) The second party admits that the first party has a valid progress of titles to the mill and mill lands; and that, as regards his title to demand and receive the commuted payments and dry multureassuming these to be still exigibleno other exception can be taken to the previous titles than that which arises upon the disposition in favour of the first party.
(8) The first party contends that he and his assignees and successors in the said commuted payments and dry multures are entitled to exact the same in all time coming, and that such right does not depend upon the existence of the said mill. As regards both the commuted payments and the dry multure, the second party contends that these are of the nature of servitudes, which are necessarily extinguished, or, at anyrate, which cannot be enforced, by reason of the destruction of the mill, which was the dominant tenement. With respect to the commuted payments, the second party further contends that, as these were partly fixed in commutation of the suckener's services in upholding the mill and its appurtenances, the millowner is bound to uphold the mill as a condition of exacting them.
The parties submitted for the opinion and judgment of the Court the following question of law: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?
Argued for the first party;(1) The statutory commutation operated a complete extinction of thirlage. There was no condition imposed by the statute that the mill should be maintained, and that was natural, seeing that the commuted annual payments represented the value of the thirlage to the proprietor of the mill, that was, the multures, less the expense of grinding the grain and keeping up the mill in other words, the net profit made by him. Accordingly, if he had still to keep the mill goingmaking no gain by doing sohe would clearly be getting less than the statute intended to give him. The language of the statute throughout left no room for doubt that not only multures as such but the servitude of thirlagefor it was to all intents a servitudewas meant to be abolished once and for...
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