Warrant, 31 December 1695, Edinburgh

Att Edinburgh the Seventyne day of December J^aj vi^c nyntie five yeirs

D1695/12/33

D1695/12/33¹

Act

Act and remitt Thomas Russell

Anent the petitione given in to the Lords of his majesties privie Counsell Be Thomas Russell of Elrig Shewing That wherin a complaint at the instance of Thomas Aikenhead of Jaw against the petitioner for alleadged hindering him to repair the Dam of the mylne of Jaw And for the Stopping of the bwilding of a new mylne which the petitioner was bwilding upon his own ground And for the alleadged diverting of the water from the persewars mylne of Jaw The² Saids Lords of privie Councell efter heareing the complaint and ansuers and a full debate in ther own presence be interloqwitor the tenth of December last Fand that pairt of the lybell relevant that the petitioner had molested and impeded the persewar in his right and possessione of the mylne of Jaw and watergang and mylnehead therof in maner lybelled And admitted the Same to the persewars probatione But refused to Sustaine proces as to the bwilding of ane other mylne And appointed a committee for takeing the depositiones of the wittnesses upon the points found relevant And accordingly ther being severall wittnesses examined But finding that they prove Litle or nothing that was materiall He upon a petition given in the next Counsell reclameing against the interloquitor he obtained a new interloquitor Remitting to the Comittie to examine the wittnesses upon the petitioners diverting the course of the writer And that therby the said Thomas Aikenhead was prejudged And gave comissione to take the depositione of Andrew Currie a wittnes in the Countrie And in the mean tyme Stopped the bwilding or goeing of the petitioners mylne of Ellrig As to which The petitioner humbly represents That The said Last interloquitor was procured parte mandata Wheras if the petitioner had bein allowed to ansuer the petitione he would have alleadged that the wittnesses could not be examined upon any other points then what was contained in the former interloquitor which was that the petitioner Should have hindered to repaire the dam slwce and watergang of the mylne of Jaw by takeing the Spade out of the workmens hands And threatning any persone that Should cast any faill for the wse forsaid As the Samen is mentioned in the lybell And the comittie when they compared the lybell with the Saids Lords of privie Councell ther interloquitor They fand that the wittnesses could not be interrogat upon any other point for as to the diverting the channell and Course of the water that pairt of the lybell was taken off by the petitioners ansuer which was this That the Loch from which the water was Drawen was in the petitioners grownd And that the Channell and course of the water and aqweduct that the petitioner did Draw from the said Loch to his own mylne was also upon his own grownd that he could not be hindered to make ane channell and aqwedwct in his own grownd As also that the persewer had no prejudice in this caice nor was the water anywayes diverted from the petitioners mylne being the Superior mylne albeit he brought the water a Litle off the ordinary course to his mylne yet imediatly when it goes from the petitioners mylne it falls in againe to the persewers Dam and Leader And So goes Straight to the persewers mylne And ther was no Loss of water by pretendit impedeing the persewer in repaireing of his Dam And as the comittie did examine them only in relatione to that particular so they could not examine them upon any Diverting of the water by the petitioners makeing of new aqwadwcts his mylne In respect that was a point of right propper to be determined by the Judge ordinary The petitioner would have alleadged that he could not be Stopt in the building of his new mylne Because everie persone may bwild a mylne upon his own grownd wnles he be restricted by a Servitage or thirleage or that he were restrained be Some particular right and obligatione not to bwild a mylne And in this caice ther is nether restrictione nor any restraint upon the petitioner not to build a mylne but on the contrair by his Contract By his few right from The Dwke of Hamiltowne Superior he is impouered And it is declaired Laufull and Leisium to him to bwild a Corne mylne upon his Lands of Ellrig for grinding of his cornes And to appropriat the profeits therof for his own wse As appears by his right produced in the yeir J^aj vi^c and fiftie And the persewer neither hes nor can pretend to have any right of thirleage upon the petitioners Lands But only he alleadges that Monteith of Mylnehall hes right of thirleage But that Does not at all concerne the mylne of Jaw nor is mylne hall compeareing in this proces nor is ther any right of Thirleage produced And albeit the petitioner needed not to say any more but that he was not lyable in any thirleage to the mylne of Jaw and So may be frie to bwild his mylne upon his own ground yet Seing he furder instructs by his right produced above fourtie five yeirs Since That he is impouered to bwild a mulne he can never be impeded to build the said mylne upon the persewers Simple assertione that he is thirled to his mylne For if that were allowed any persone may hinder a neighboure to bwild a mylne upon his own ground upon his Simple assertione that the builder of the mylne is restricted to the persone that would hinder him And by this meanes no man Shall be alloued to build a mylne upon his his³ own ground albeit he be absolutely frie untill he first persue a declarator against all the neighbours of the neighboureing mylnes which no man will have the confidence to assert As also both these points in relatione to his building of the mylne and Drawing of water by ane aqwadwct And Leader to his own mylne in his own ground being points of right are only propper to be Determined by The Lords of Sessione Therfore the saids Lords of privie Councell efter full Heareing of both pairties upon these points did most Justly refwise to Sustaine proces befor the Counsell as to the building of ane other mylne And the drawing of ane aqwadwct and Leader to his mylne was a pairt of the bwilding of his new mylne And consequently proces was not Sustained in relatione to that pairt of the lybell wher the persuer complaines of the petitioners makeing a new Channell and drawing the water to his mylne through his own ground for as he can build a mylne als undoubtedly he may be vertue of his right He be the same reasone may Draw ane aqwedwct and Leader to his mylne through his own grownd And So as he cannot be hindered to bwild mylne he cannot be hindered to mak a Dam And leader to her But especiallie wher the persuer hes no prejudice the water falling intirlie into his Dam as it comes from the petitioners mylne Tertio no comissione ought to be granted for takeing of Currie the witnes his oath who is pretended to be of a great age Seing ther is nothing produced to instruct his age And Such comissioners are not in wse to be granted unles testificats of ther age be produced upon Soule and conscience that they are not able to travell for ages Quarto as to that pretence that ther is not a Shirreff in Stirleing Shyre now Since The Earle of Linlithgows Decease It is absolutely groundles seeing the petitioner is not lyable to the Shirreffs Jurisdictione in respect his Lands lyes within the regalitie of Borrowstownes as appears by his right prodwce And Therfore humbly craveing that the saids Lords of privie Councell would be pleased to resume to ther consideratione the last interloquitor which was past withowt heareing of pairties And adhere to the first interloquitor allowing only the wittnesses to be examined as to the petitioners intended impedeing of the persuer and his Servants in repaireing of his Damm and refuseing to Sustaine proces befor the privie Counsell as to the building of his mylne And the petitioners mylne being alreadie Compleat by bwilt he may be allowed to proceed to make her a goeing mylne But when the persewer shall intent any actione befor the Judge ordinary against the petitioner for declareing any astrictione or that he hes not a right to bwild a mylne He shall have ane ansuer And to discharge the executeing of any Comissione for takeing of Curries oath in the Countrie befor a testificat upon soull and conscience of his age and infirmitie that he is not able to travell be produced As the said petitione bears Which being this day red and considered be the saids Lords of privie Councell They doe heirby adhere to ther last interloquitor pronunced upon Thomas Aikenehad of Jawes petitione as to the Stopping of the building of the petitioners mylne And remitts that point anent the Diverting of the course of the water And also that pairt of the lybell anent the petitioners haveing right to bwild a new mylne To the Lords of Sessione And recomends to them to discuss the Samen Summarly without the ordinary course of the roll And refwises to allow any wittnesses to be adduced anent the diverting of the course of the water And adheres to the Comissione for takeing of Andrew Curries oath as to the Stopping of Jaues men in mending the Dam