Brown v. Carron Co.. Brown v. Livingstone-Learmonth's Trustees. Brown v. Forbes [1909] ScotLR 279 (19 December 1909)

Brown v. Carron Co.. Brown v. Livingstone-Learmonth's Trustees. Brown v. Forbes [1909] ScotLR 279 (19 December 1909)

Thirlage, whether regarded as a servitude or a real burden, is subject to extinction by negative prescription if not enforced for forty years, even when the obligation is contained in the reddendo of a feu charter and in favour of a third party. The evidence established that the right of thirlage had not been exercised or enforced for more than forty years, and thus was extinguished.

Citation
[1909] ScotLR 279
Parties
Pursuer (reclaimer): Robert Ainslie Brown, S.S.C.; Defender (respondent): Carron Company; Defender (respondent): Trustees of Thomas Livingstone-Learmonth; Defender (respondent): William Forbes of Callendar
Jurisdiction
Scotland
Judgment Date
19 December 1909
Procedural Posture
Civil / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor
Outcome
Appeal dismissed; interlocutor of Lord Ordinary affirmed; defenders assoilzied (absolved) with expenses.
Legal Topics
Servitude, Thirlage, Prescription, Negative Prescription, Real Burdens
Property Law Scots Law Servitude Thirlage Prescription Negative Prescription Real Burdens

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Parties

Robert Ainslie Brown, S.S.C.

Pursuer (reclaimer)

Carron Company

Defender (respondent)

Trustees of Thomas Livingstone-Learmonth

Defender (respondent)

William Forbes of Callendar

Defender (respondent)

Procedural Posture

Civil / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether the obligation of thirlage (astriction of lands to a mill) can be extinguished by negative prescription when not enforced for forty years.
  2. 2 Whether the inclusion of thirlage in the reddendo of a feu charter prevents extinction by prescription.

Ratio Decidendi

Thirlage, whether regarded as a servitude or a real burden, is subject to extinction by negative prescription if not enforced for forty years, even when the obligation is contained in the reddendo of a feu charter and in favour of a third party. The evidence established that the right of thirlage had not been exercised or enforced for more than forty years, and thus was extinguished.

Court Disposition

Appeal dismissed; interlocutor of Lord Ordinary affirmed; defenders assoilzied (absolved) with expenses.

Orders

  • The plea of prescription is sustained.
  • The defenders are assoilzied (absolved) from the conclusions of the summons.