Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by JAMES BURNETT, LORD MONBODDO.

James Stenhouse
Jean Young

Date: 26 June 1741

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A timber house in Libberton's Wynd, belonging to the deceased Alexander Young, being burnt down, James Stenhouse, by a warrant from the Dean of Guild, rebuilt it in stone, and added two storeys and garrets more than there was before. His title for building, was, 1mo, an obligation from Alexander Young, in his contract of marriage with Christian Young, the said Alexander's daughter, to grant a wadset upon that timber tenement, for the security of 2000 merks, the tocher ;—2do, His daughter's right, who, as heir to her mother, was entitled to one half of the area of the burnt tenement, Alexander Young having only left behind him two daughters. For these reasons, the Lords found, that the rule of law does not here take place, quicquid solo inædificatur solo cedit, and that the other heir portioner could not claim the half of the house rebuilt, though the half of the area was hers, without refunding one half of the expenses, which in this case were so high that she did not think it proper to make the offer of them.

Therefore, the Lords found that James Stenhouse might retain the house for his expenses, but that he behoved to allow to the heirs portioners a consideration for the value of the area ; and likewise, if they could show that they could have made more of the area, by building in another shape, to make up that loss to them.