Porteous v. Haig [1901] ScotLR 38_258 (15 January 1901)

Porteous v. Haig [1901] ScotLR 38_258 (15 January 1901)

The statutory commutation of thirlage under the Thirlage Act 1799 extinguishes the servitude and substitutes a real burden of annual payment, which is not conditional on the continued existence of the mill. Similarly, dry multures, when established as a permanent arrangement, are not extinguished by the destruction of the mill. The right to demand such payments persists notwithstanding the discontinuance of the mill.

Citation
[1901] ScotLR 38_258
Parties
First Party (applicant): James Porteous of Tufthills, Kinross; Second Party (respondent): Alexander Price Haig of Blairhill
Jurisdiction
Scotland
Judgment Date
15 January 1901
Procedural Posture
Special Case Stated for Opinion and Judgment / Judgment of the Inner House, First Division, Court of Session
Outcome
Both questions answered in the affirmative; first party entitled to exact commuted payments and dry multures from the second party notwithstanding the mill's destruction.
Legal Topics
Thirlage, Servitude Extinction, Statutory Commutation, Dry Multures, Obligations After Destruction of Dominant Tenement
Property Law Servitudes Agricultural Law Thirlage Servitude Extinction Statutory Commutation Dry Multures Obligations After Destruction of Dominant Tenement

Case Brief

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Parties

James Porteous of Tufthills, Kinross

First Party (applicant)

Alexander Price Haig of Blairhill

Second Party (respondent)

Procedural Posture

Special Case Stated for Opinion and Judgment / Judgment of the Inner House, First Division, Court of Session

Legal Issues

  1. 1 Whether commuted payments for thirlage under the Thirlage Act 1799 remain exigible after the mill's destruction
  2. 2 Whether dry multures remain exigible after the mill's destruction

Ratio Decidendi

The statutory commutation of thirlage under the Thirlage Act 1799 extinguishes the servitude and substitutes a real burden of annual payment, which is not conditional on the continued existence of the mill. Similarly, dry multures, when established as a permanent arrangement, are not extinguished by the destruction of the mill. The right to demand such payments persists notwithstanding the discontinuance of the mill.

Court Disposition

Both questions answered in the affirmative; first party entitled to exact commuted payments and dry multures from the second party notwithstanding the mill's destruction.

Orders

  • First party entitled to exact payment of sums commuted in the verdicts applicable to the second party's lands.
  • First party entitled to exact payment of the dry multure applicable to the second party's lands.