Alexander Ferguson v. William Ferguson of Auchinblain
Date: 26 July 1737 Case No. No 22.
A liferenter, by reservation, is entitled to cut sylvæ cæduæ, according to the custom of the country where the woods grow.
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The said William Ferguson, in his son Alexander's contract of marriage, disponed to him the lands of Auchinblain, with the woods and hail pertinents, reserving his own liferent of the premisses. Upon these lands were two small woods, which Auchinblain, imagining he had a right to dispose of, (in virtue of his reserved liferent,) sold one of them that was ready for cutting; in order to stop which, Alexander brought a declarator to have it found, that his father had no title thereto. And the arguments urged in support of this action were, that, though the woods in question are what the law calls sylvæ cæduæ, yet the defender had no right to the wood itself, but only, in case it was cut by the pursuer, the liferenter might have the useless shoots that must be cut off, in order to its growing in due course; agreeable to L. 10. De usu fruct. and the act 25th, P. 1491. ratified by the 15th act, P. 1535.; whereby it is “provided, that liferenters shall find caution that they shall not waste or destroy woods, &c. but that they hold them in sicklike kind as they are at the time they receive the same, taking their reasonable sustentation or using in needful things, without destruction or wasting thereof.” See Sir George M'Kenzie upon this act, and Craig, lib, 2. dieg. 8. § 17.
For the defender it was argued, That, as he had reserved the liferent of the subjects disponed, it followed, that the liferent behoved to be as comprehensive as the fee; of course, it included the woods; and, though his right was only temporary, yet, during the continuance thereof, the use of the subjects were as fully in him as the pursuer; with this restriction, indeed, that he must still use the same salva substantia. Nor does this militate against the doctrine now pleaded for, seeing the defender does not pretend to destroy the subjects liferented, but solely to have the use of them, in the like manner as was accustomed to be done formerly; and if it can be made appear, that the timber of a wood falls under the description of fructus, it seems necessarily to follow, that the liferenter has a right to cut the same.
Upon this question, the civilians distinguish betwixt sylvæ cæduæ and non cæduæ, the last of which, the defender admits, do not belong to a liferenter; but, as to the former, which are designed for cutting, and which are regularly cut in a certain number of years, which is the case with the woods in question, it is believed, that, since the fructus of these consists in nothing but the timber got out of them by cutting, and that, notwithstanding thereof, the wood remains, just as much as a meadow, after it is mown, is still a meadow; that, therefore, the right to cut such woods belongs to the liferenter, conform to L. 9. § ult. D, De usu fruct. &c. Neither are the words of the act, quoted for the pursuer, contrary to this doctrine, as the meaning thereof is tantamount, as if it had said, he using the same tanquam bonus paterfamilias; and, most certainly, it is the part of every prudent man to cut his woods when they come to maturity, which is putting them to a reasonable use, and a preservation instead of waste. It is true, that this right has been found not to be competent to liferenters by constitution; but that is no objection against the defender, seeing a liferent, by reservation, such as the present, has many privileges attending it that the other has not; a liferent, by constitution, being considered as intended only for an annuus reditus; and, therefore, is strictly interpreted so as to take nothing but what falls within the description thereof. But, with respect to the other, it is more favourably constructed, as a liferenter, by reservation, does not derive his right from the fiar, but the fiar from him; of course, it is interpreted extensively, viz. to be as broad as the fee.
Answered for the pursuer, That a conjunct fiar, whose right resolves into a liferent, has as strong an interest in the subject as a liferenter by reservation; and yet the liferent, by conjunct fee, does not give an interest to cut the woods. See Craig, lib, 2. dieg. 22. § 21. and Lord Stair, B. 2. T. 6. § 10. who puts both on the same footing; therefore, what holds in the one must likewise take place in the other. Besides, our law has proceeded on the supposition, that woods, in the same manner as coals, are pars fundi; and that the liferenters, of whatever kind, can no more cut the growing wood, or make use of the coat for sale, than they could destroy the surface of the ground, which might render it useless for many years.
The Lords found, that a liferenter, though by reservation, has not a right to cut woods.
But, upon petition and answers,
They found, that Auchinblain, who is liferenter, by reservation, has a right to cut the woods in question, according to the custom and usage of the country where the woods are.
