What is comprehended under a liferent right of lands.
The Lady Preston v. The Laird of Preston
Date: 13 July 1677 Case No. No 7.
A liferenter found to have no right to the coal in her liferent lands. See No 4.
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The deceased Lord Preston, by his contract with———Bothwel his second wife, having provided her to an annualrent of 1200 merks out of his lands, and for security thereof, obliged him to infeft her in the lands, declaring it to be in her option, to take her to the annualrent, or to possess the lands themselves, she chuses the possession of the lands, and insists for the benefit of a a going coal-pit in the lands at the time of the contract, and now as being part and pertinent of the lands, and thereby carried, though not not expressed, as vassals being infeft in lands, though the superior remains infeft in directo dominio, yet he hath thereby no right to coals in the lands, but the vassal hath right thereto, as part and pertinent, which must also hold between the liferenter infeft in the lands in liferent and the fiar. It was answered for the fiar, That there was no parity in these cases; because liferents, however conceived, are but ususfructus, and are not extended to green woods or coals. It was replied, That liferents have been extended unto coals sufficient for the liferenter's use, or woods to the reparation of houses. It was duplied, That whatever might be pretended in liferent by conjunct-fee, whereby the liferenters may receive vassals, and where the fiar hath been in use to raise coal for his own fire, and to make use of wood for his own and his tenants use, that the conjunct fiar might continue the same custom, yet this is but a simple liferent, and the coal before the infeftment was accustomed to be farmed, and sold to the country, or if there had been sylva cædua accustomed to be hained and sold to the country, the liferenter can pretend no right.
The Lords found the liferenter to have no right to this coal which was a going coal sold to the country before the contract, much less, if it had been a coal begun to be win after the contract.
Fol. Dic. v. 1. p. 548. Stair, v. 2. p. 540.*** Gosford reports this case:
In an action of declarator at the instance of the Lady against her son-in-law, the Laird of Preston, to hear and see it found, that she being provided by contract of marriage with the defender's father, to an annualrent of 1200 merks out of the lands, with power to enter to the possession of the lands, if she pleased, rather than to take up the said annualrent; and accordingly, she having made her election, and entered to the possession of these lands, wherein there was a going coal the time of the contract; that, therefore, she had right to 400 loads of the coals for the bygones, and in time coming; or otherwise, that she would work the said coal, and take so many loads for her own use. It was alleged for the defender, That the contract of marriage could be no title for this declarator, because there was no provision to the coal in her favour but only to the annualrent out of the lands. It was replied, That she not only having right to the annualrent, but likewise to enter in the possession of the lands for the annualrent, and having accordingly made her election and entered to the possession, by our law she had an undoubted right, as is clear by Craig, page 189, where he asserts, that all terces are found by a decision to have right to coal, and declares his opinion, that conjunct fiars have right to so much of the coal lying within the lands as may serve to their private use, as they have in sylvis cæduis. The Lords having considered the contract of marriage, and found that the Lady had no conjunct-fee of lands, but was only provided to an annualrent out of the lands; and, that it was in her power only to enter to the possession for security of the annualrent; that, therefore, she could crave no right to any part of the coal, as not being conjunct fiar nor infeft the lands; and so decerned.
