Encyclopaedia Britannica; or, A dictionary of arts and sciences, compiled upon a new plan … > Volume 2, C-L

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of high ways, bridges, and ferries, is committed to the
fheriffs, judices of peace, and commiflioners of fupply in
each (hire,
6. Common pafturage, or the right of feeding one’s
cattle upon the property of another, is fometimes confti-
tuted by a general claufe of pafturage in a charter or dif-
pofhion, Without mentioning the lands burdened; in which
cafe, the right comprehends whatever had been former¬
ly appropriated to the lands difponed out of the granter’s
own property, and likewife all pafturage due to them out
of other lands. When a right of pafturage is given to
feveral neighbouring proprietors, on a moor or common
belonging to the granter, indefinite as to the number of
cattle to be paftured, the extent of their feveral rights is
to be proportioned according to the number that each of
them can fodder in winter upon his own dominant tene¬
ment.
7. The chief fervitudes of houfes ampng the Roman?
were thofe of fupport, viz. tigni immitte'ndi, and oner is,
ferendi. The firft was the right of fixing in our neigh¬
bour’s wall a joift or beam from our houfe : The fecond
was that of refting the weight of one’s houfe upon his
neighbour’s wall.
8. With us, where different floors or ftories of the fame
houfe belong to different perfons, as is frequent in the,
city of Edinburgh, ,the property of the houfe-cannot be
faid to be entirely divided ; the roof remains a common
roof to the whole, and the area on which the houfe (lands
fgpports the whole ; fo that there is a communication of
property, in confequence of which the proprietor of the
ground floor muft, without the conftitution of any fer-
vitude, uphold it for the fupport of the upper, and the
owner of the higheft ftory muft uphold that as a cover
to the lower. Where the higheft floor is divided into
garrets among the feveral proprietors, each proprietor is
obliged, according to this rule, to uphold that part of the
roof which covers his own garret.
9. No proprietor can build, fo as to throw the rain¬
water falling from his own houfe, immediately upon his
neighbour’s ground, without a fpecial fervitude, which is
called of Jiillicide ; but, if it falls within his own pro¬
perty, though at the fmalleft diftance from the march,
the owner of the inferior tepement muft receive it.
10. The fervitudes altius non tollendi, et non ojficiendi
luminibus vel profpcflui, reftrain proprietors from raifing
their houfes beyond a certain height, or#from making any
building whatfoever that may hurt the light or profpedt
of the dominant tenement. Thefe fervitudes cannot be
conftituted by prefcription alone ; for, though a propri¬
etor fhould have built his houfe ever fo low, or fhould
not have built at all upon his -grounds for forty years
together, he is prefumed to have done fo for his own
conveniency or profit ; and therefore cannot be barred
from afterwards building a houfe on his property, or
raifing it to what height he pleafes, unlefs he be tied down
by his own confent.
11. We have two predial fervitudes to which the Ro¬
mans were ftrangers,* viz. that of fewel or feal and divot,
and of thirlage. The firft is a right, by which the owner
of the dominant tenement may turn up peats, turfs, feals,
©r divots, from the ground of the fervient, and carry
Voi. II. No. 64. 2
A W. 9\x
them off either for fewcl, or thatch, or the other ufes o^
his own tenement.
12. Thirlage is that fervitude, by which lands are
aftridted, or thirled, to a particular mill, and the poflef-
fors bound to grind their grain there, for payment of
certain multures and fequels, as the agreed price of grind¬
ing. In this fervitude, the mill is the dominant tene¬
ment, and the lands aftridted (which are called alfo the
thirle or fucken) the fervient. Multure is the quantity
of grain or meal payable to the proprietor of the mill,
or to the multurer his tackfman. The fequds are the
fmall quantities given to the fervants, under the name of
knavefhip, bannock, and lock or gowpen. The quantities
paid to the mill by the lands not aftridhed, are generally pro¬
portioned to the value of the labour, and are called out town
or out-fucken multures; but thofe paid by the tbirle are or¬
dinarily higher, and are called in-town or in-fucken multures..
13. Thirlage may be conftituted by a land-holder,
when, in the difpofition of certain lands, he aftridhs them
to his own mill ; or when, in the difpofition of a mill,
he aftridhs his own lands to the mill difponed, or when,
in letting his lands, he makes it a condition in the tacks.
The grant of a mill with the general cjaufe of multures,
without fpecifying the lands aftridted, conveys the thir¬
lage of all the lands formerly aftridted to that mill,
whether they were the property of the granter, or of a
third party.
14. A lefs formal conftitution ferves to aftridt barony-
lands to the mill of the barony, than is neceflary in any
other thirlage ; which perhaps proceeds from the effedls
of the union between the two. Hence, if a baron makes
over the mill of a barony, cum multuris, or cum ajlriflit
multuris, it infers -an aftridtion of the barony lands to
the mill conveyed, even of fuch as had been before fold
to another for a certain duty pro omni alio onerc. Bnt
if, prior to the baron’s conveyance of his mill cum mul¬
turis, he had fold any part of the barony-lands to another
cum multuris, the firft purchafer’s lands are not aftridted
by the pofterior grant; for a right of lands with the
multures, implies a freedom of thefe lands from thirlage.
14. Thirlage is either, 1. Of grindable corns ; or, 2.
Of all growing corns; or, 3. Of the invetta et Mata,
i. e. of all the grain brought within the thirle, though of
another growth. Where the thirlage is of grindable
grain, it is in pradtice reftridted to the corns which the
tenants have occafton to grind, either for the fupport of
their families, or for other ufes ; the furplus may be
carried out of the thirle unmanufadtured, without being
liable in multure. Where it is of the grana crefcentia,
the whole grain growing upon the thirle is aftridted, with
the exceptions, 1. Of feed and horfe-corn, which are
deftined to ufes inconfiftent with grinding ; and, 2. Of
the farm-duties due to the landlord, if they are deliver¬
able in grain not grinded. But, if the rent be payable
in meal, flour, or malt, the grain of which thefe are made
muft be manufadhtred in the dominant mill.
16. The thirlage of invetta et illata is feldom confti¬
tuted but againft the inhabitants of a borough or village,
that they (hall grind all the unmanufadiured grain they
import thither at the dominant mill. Multure, therefore,
cannot be exadfed in a thirldge of invefta et Mata, for
9 X flour