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

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flour or oat-meal brought into tlje fervient tenement, un-
lefs the importer had brought it in grain, and grinded it
at another mill. The fame grain that owes multure, as
granum crefceus, to the mill in whofe thirle it grew, if
it (hall be afterwards brought within a borough where
the inveda et Mata are thirled, mull pay a fecond mul¬
ture to the proprietor of that dominant tenement ; but,
where the right of thefe two thirlages is in the fame pro¬
prietor, he cannot exa£t both. Where lands are thirled
of general terms, without exprefling the particular nature
in the fervitude, the lighted thirlage is prefumed, from
the favour of liberty; but in the adridtion of a borough
or village, where there is no growing grain which can be
the fubjedt of thirlage, the adridtion of invsfla et Mata
mud be neceflarily underdood.
17. Thirlage, in the general cafe, cannot be edablilh-
ed by prefeription alone, for its qua funtrnera facultatis
non praferibitur; but where one has paid for forty
years together the heavy infucken multures, the flighted
title in writing will fubjedl his lands. Thirlage may be,
contrary to the common rule, condituted by prefeription
alone, 1. Where one pays to a mill a certain fum, or
quantity of grain yearly, in name of multure, whether
he grinds at it or not (called dry multure.) 2. In mills
of the King’s property ; which is conflituted jure corona,
without titles in writing; and, where he derives right
from another, his titles are more liable to be lod. This
is extended in pradtice to mills belonging to church-lands,
where thirty years pofleflion is deemed equivalent to a
title in writing, from a prefumption that their rights were
dedroyed at the reformation. Though thirlage itfelf
cannot be condituted by mere pofleflion, the proportion
of mul,ture payable to the dominant tenement may be fo
. fixed.
18. The poflefibrs of the lands aflridted, are bound to
uphold the mill, repair the dam-dykes and aquedudls,
and bring home the millflones. Thefe fervices, though
not exprefled in the conditution, are implied.
19. Servitudes, being redraints upon property, are
Jir 'thi juris : They are not therefore prefumed, if the
stdb upon which they are claimed can be explained con¬
fidently with freedom ; and, when fervitudes are confli¬
tuted, they ought to be ufed in the way lead burdenfome
to the fervient tenement. Hence, one who has a fervi¬
tude of peats upon his neighbour’s mofs, is not at liberty
to extend it for the ufe of any manufadure which may
require an extraordinary expence of fewel; but mud
confine it to the natural ufes of the dominant tenement.
20. Servitudes are extinguilhed, 1. Confuftone, when
the fame perfon comes to be proprietor of the dominant
and fervient tenements ; for res fua nemini fervit, and
the ufe the proprietor thereafter makes of the lervient
tenement is not jure fervitutis, but is an a£t of proper¬
ty. 2. By the perifhing, either of the dominant or fer
vient tenement. 3. Servitudes are lofl utendo, by
the dominant tenement negledting to, ufe the right for
forty years ; which is confidered as a dereliftion of it,
though he, who has the fervient tenement, flrould have
made no interruption, by doing a<5ts contrary to the fer¬
vitude.
2.x. Perfonal fetvitudes are thofe by which the proper¬
ty of a fubjeft is burdened, in favour, not of a tenement,
but of a perfon. The only perfonal fervitude known in
our law, is ufufrutt or liferent; which is a right to ufe
and enjoy a thing during life, the fubdance of it being
preferved. A liferent cannot therefore be condituted
upon things which periflr in the ufe ; and though it may
upon fubjedts which gradually wear out by time, as houfe-
hold-furniture, <bc. yet, with us, it is generally applied
to heritable fubjedts. He, whofe property is burdened,
is ufually called the fiar.
22. Liferents are divided into conventional and legal.
Conventional liferents are either Ample, or by refervation.
A Ample liferent, or by a feparate conditution, is that
which is granted by the proprietor in favour of aaother :
And this fort, contrary to the nature of predial fervitudes,
requires feifln in order to affedt Angular fucceflbrs ; for a
liferent of lands is, in flridt fpeeeh, not a fervitude, but
a right refembling property, which conditutes the life-
renter vaflal for life ; and Angular fucceflbrs have no way
of difeovering a liferent-right, which perhaps is not yet
commenced, but by the records ; whereas, in predial
fervitudes, the condant ufe of the dominant tenement
makes them public. The proper right of liferent is in-
tranfmiflible, ojfibus ufufrufluarii inharet : When the
profits of the liferented fubjedt are tranfmitted to another,
the right becomes merely perfonal, for it intitles the af-
Agnee to the rent, not during his own life, but his ce¬
dent’s, and is therefore carried by Ample aflignation,
without feiAn.
23. A liferent by refervation, is that which a pro¬
prietor referves to himfelf in the fame writing by which
he conveys the fee to another. It requires no feifin j
for the granter’s former feifin, which virtually included
the liferent, dill fubfifts as to the liferent which is ex-
prefsly referved. In conjundt infeftments taken to huf-
band and wife, the wife’s right of conjundt fee refolves,
in the general cafe, into a liferent.
24. Liferents by law, are the terce and the courtefy.
The terce/tertiaJ is a liferent competent bylaw to
widows, who have not accepted of fpecial provifions, in
the third of the heritable fubjedts, in which their hufbands
died infeft; and takes place only where the marriage
has fubfided for year and day, or where a child has been
born alive of it.
25. The terce is not limited to lands, but extends to
teinds, and to fervitudes and other burdens afledting lands;
thus, the widow is intitled, in the right of her terce, to
a liferent of the third of the fums fecured, either by rights
of annnalrent, or by rights in fecurity. In improper
wadfets, the terce is a third of the fum lent: In thofe
that are proper, it is a third of the wadfet-landa ; or in
cafe of redemption, a third of the redemption money.
Neither rights of reverfion, fuperiority,. nor patronage,
fall under the terce ; for none of thefe have fixed profits,
and fo are not proper fubje&s for the widow’s fubfidence ;
nor tacks, becaufe they are not feudal rights. Burgage-
tenements are alfo excluded from it,, the reafon of which
is not fo obvious. Since the hudjand’s feifin is both the
meafure and fecurity of the terce, fuch debts or diligen¬
ces alone, as exclude the hulband’s feifin, can prevail over it.
26. Where a terce is due out of lauds burdened with