BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
Lady Borthwick, Supplicant. [1696] Mor 8245 (3 July 1696)
URL: http://www.bailii.org/scot/cases/ScotCS/1696/Mor2008245-010.html Cite as:
[1696] Mor 8245
What is comprehended under a liferent right of lands.
Lady Borthwick, Supplicant
Date: 3 July 1696 Case No. No 10.
A liferentrix, when the estate was going to be sold, craved power to cut as much wood as would repair the houses. - Refused.
Click here to view a pdf copy of this documet : PDF Copy
The Lords having advised the probation of the roup of the Lordship of Borthwick, in the process of sale, pursued by the creditors, and found the estate bankrupt; the Lady gave in a bill, craving the sale might not prejudge her jointure, which was so declared; 2do, She alleged, That she ought to have the faculty and power of cutting as much of the timber and woods growing on her liferented lands, as would repair and uphold the houses on the ground. To which it was answered, That her infeftment not bearing the woods, but allenarly the lands, and it not being a sylva cædua, which uses to be cut by haggs, and for profit, she ought to have no such liberty, else the fiar's planting might be destroyed by liferenters, who, by the acts of Parliament, are obliged to preserve the planting and policy about houses; and ususfructus is always understood salva rei substantia. Some of the Lords argued, that she might use it as her husband did before, et tanquam bonus et frugi paterfamilias without wasting, only for the necessary use of the ground, even as a relict will get as many coals out of a going heugh, in her liferent lands, as may serve the use of her family; and Craig tells it was so decided, both in the case of woods and coal-heughs, lib. 2. Feudor. tit. 8. The Lords, considering this planting was valued to L. 2500 Scots, and if the Lady were permitted, under the pretence of reparations, to dispose of it, would not only diminish the price, but discourage buyers, and that she had no specific infeftment on the wood, and that her husband's right was a jus pinguius dominii more than what a conjunct fiar could claim; therefore found she had no right to cut any part of the woods, though to the use of the ground, but she and the tenants ought to uphold them upon their own expenses. This seems to debord from the ancient decisions; but then lands were not sold by roup, to which this privilege of widows might be a great discouragement and let.
Fol. Dic. v. 1. p. 548. Fountainhall, v. 1. p. 726.
