Magistrates of Edinburgh v. Edinburgh United Breweries Ltd [1903] ScotLR 40_666 (09 June 1903)

Magistrates of Edinburgh v. Edinburgh United Breweries Ltd [1903] ScotLR 40_666 (09 June 1903)

The servitude of thirlage and obligation to pay dry multures, as established by the agreements of 1711 and 1861 and confirmed by long and uninterrupted usage, became the law and custom of the thirl and binds singular successors, including the defenders. The absence of mills in working order and the extension of premises outside the thirl do not relieve the defenders of liability for commuted multures. The quinquennial prescription limits the mode of proof for claims beyond five years but does not extinguish the right to recover such multures.

Citation
[1903] ScotLR 40_666
Parties
Pursuer: Magistrates of Edinburgh; Defender: Edinburgh United Breweries Limited
Jurisdiction
Scotland
Judgment Date
09 June 1903
Procedural Posture
Civil / Appeal (reclaiming Note) From Lord Ordinary's Interlocutor
Outcome
Pursuers' claim for multures for five years prior to the action affirmed; pursuers entitled to prove claim for earlier periods by writ or oath of defenders; defenders' reclaiming note refused.
Legal Topics
Servitude of Thirlage, Multures, Dry Multures, Commutation of Multures, Prescription, Singular Successors, Alienation of Dominant Tenement
Property Law Servitudes Scots Law Servitude of Thirlage Multures Dry Multures Commutation of Multures Prescription +2 more

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Parties

Magistrates of Edinburgh

Pursuer

Edinburgh United Breweries Limited

Defender

Procedural Posture

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

Legal Issues

  1. 1 Whether the defenders are liable for payment of multures or commuted multures under the law and custom of the thirl as established by historical agreements and usage.
  2. 2 Whether the servitude of thirlage and obligation to pay multures binds singular successors who were not parties to the original agreements.
  3. 3 Whether the alienation of the mills by the Magistrates extinguished the right of thirlage and the obligation to pay multures.

Ratio Decidendi

The servitude of thirlage and obligation to pay dry multures, as established by the agreements of 1711 and 1861 and confirmed by long and uninterrupted usage, became the law and custom of the thirl and binds singular successors, including the defenders. The absence of mills in working order and the extension of premises outside the thirl do not relieve the defenders of liability for commuted multures. The quinquennial prescription limits the mode of proof for claims beyond five years but does not extinguish the right to recover such multures.

Court Disposition

Pursuers' claim for multures for five years prior to the action affirmed; pursuers entitled to prove claim for earlier periods by writ or oath of defenders; defenders' reclaiming note refused.

Orders

  • Adhere to the interlocutor reclaimed against, with the addition that the pursuers are entitled to prove by writ or oath of the defenders their claim for multures prior to 13th July 1896.
  • Remit the cause to the Lord Ordinary to proceed.