Scottish Court of Session Decisions

Stronach & Anor v. Robertson [2002] ScotCS 129 (9th May, 2002)

FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lord Dawson Lady Paton	XA193/00 OPINION OF THE COURT delivered by LADY PATON in the cause CHARLES ROBERTSON STRONACH, JAMES BARKER ROBERTSON STRONACH and ANDREW WILLIAM STEVENSON, W.S., Executors-nominate of the late MRS. ELEANOR BEATTON ROBERTSON or STRONACH Pursuers and Appellants; against JAMES PERCIVAL ROBERTSON Defender and Respondent: _______

 

 

Act: Crawford, Advocate; Aitken Nairn W.S.

Alt: Ross, Advocate; Shepherd & Wedderburn

9 May 2002

Liferent of a house

1. The respondent liferents a house known as Heath-Hill, 6 Hillside Road, Stromness, Orkney. He has lived there since 1948, initially with his parents. Following his father's death in 1971, he was granted a proper liferent of the subjects by his father's executors, by Disposition dated 1 and 5 July 1976: that is to say, the subjects were conveyed to the respondent in liferent and to his sister in fee, without the interposition of a trust. The fee vested in his sister with immediate effect. The respondent continued to live at Heath-hill. On his sister's death, the fee passed to her executry estate. The appellants are her executors, and are therefore the fiars of Heath-Hill.

Whether the fiars are entitled to specific implement or damages against the liferenter

2. Over the years, the appellants became concerned about the respondent's management of Heath-hill. They raised the present action in Kirkwall Sheriff Court, averring that the respondent was failing in his duty to carry out reasonable, normal and necessary repairs. In Article 3 of Condescendence, the appellants described deterioration of rainwater pipes, slates, ridge tiles, chimney heads, and skews. They averred inter alia that water penetration resulted in extensive wet rot; that the harling on the exterior walls was eroded leaving bare rubble masonry; that trees and shrubs had distorted walls and foundations; that a bathroom floor had collapsed; and that parts of a bedroom floor were missing. They estimated necessary repairs at about £84,500. They craved the court firstly, to ordain the defender to carry out certain repairs, and secondly, in the alternative, to find the respondent liable to pay the appellants damages of £84,500, representing either the cost of repairs, or the loss of value to the subjects.
3. The respondent lodged defences, maintaining inter alia that the appellants as fiars could not competently seek specific implement or damages against him during the currency of the liferent. The appellants' only remedy was the cautio usufructuaria, namely demanding caution from the liferenter, which would serve as a security until the termination of the liferent. At that point, fiars could make good any losses caused to the estate.

Cautio usufructuaria: statutes of 1491, 1535, and 1594

4. In the Stair Encyclopaedia, Volume 13, paragraph 1661 it is stated:

" ... the fiar ... has open to him under the old Scots Acts [1491 and 1535] the unusual remedy of a particular type of caution, cautio usufructuaria. The usefulness of this remedy is doubtful, and it appears never to have been very popular. The situations where it may be applicable are where it appears that there is evidence that the liferenter is acting in such a manner as to damage or diminish the liferented subjects. The fiar can then demand that the liferenter lodge caution with the sheriff within twenty-one days, failure to comply resulting in the loss of the fruits of the liferented subjects ..."

Where the subject of the liferent was a house, a further old Scots statute of 1594 applied. Erskine, Institutes, II.9.60 states:

"It is provided by special statute (1594, c.226) that where a house within a borough, subject to a liferent, falls into decay, the fiar may, at any time while the right subsists, apply to the magistrates for taking cognition of the state of the house by an inquest, and for requiring the liferenter to repair it: and if he refuse, the fiar is authorised to enter into possession, upon giving security to pay to the liferenter during his right the rent which might reasonably have been expected for a lease of the subject as it stood at the time of cognition."

5. The 1594 Act was repealed by the Statute Law Revision (Scotland) Act 1964. However the 1491 and 1535 Acts were repealed in part only, and in terms of these Acts the cautio usufructuaria remains available today. Nevertheless the appellants in the present action resorted to the remedies of specific implement and damages, in preference to the cautio.

Dismissal of the action in the Sheriff Court

6. On 22 June 2000 a debate took place in Kirkwall Sheriff Court. The respondent's solicitor submitted that the appellants' action was incompetent. Fiars such as the appellants were not entitled to the remedies of specific implement and damages against the liferenter during the currency of the liferent, but only to the statutory cautio usufructuaria. Reference was made inter alia to a passage in Erskine, Institutes, II.9.59, which states:

"Yet where waste is already committed, no action is competent to him who stands presently in the fee for recovering damages; for the damage is due to that person alone to whom the fee shall open after the liferenter's death; and it is possible that if the presumptive heir, prosecuting such action, should die before the liferenter, his executor, to whom the sum recovered upon that action in name of damage would fall, might not be fiar of the liferented subject at the expiration of the liferent."

Founding largely upon that passage, the respondent's solicitor invited the court to dismiss the action as incompetent.

7. Counsel for the appellants contended before the sheriff that the action was competent, finding assistance in a variety of authorities and making reference to the article in the Stair Encyclopaedia, Volume 13, which contains the following observations at paragraph 1660:

"Under Erskine's influence, the law appears to have taken an unduly restrictive approach to what constitutes the fiar's present interest [footnote1: see Erskine Institutes II.9.59]. Erskine used the notion of the separate interests of liferenter and fiar to come to the conclusion that during the liferent the fiar has only a very limited immediate "beneficial" interest (growing timber appears to be the main example) in the subjects, with his main interest being only an ultimate interest postponed until the end of the liferent.

In the limited circumstances where there is an immediate beneficial interest, the fiar is allowed to interdict a liferenter who is proposing to harm that interest in some way or claim damages for any harm already done him. But in all other circumstances the fiar's remedies are limited to demanding caution under two old Scots Acts, the Liferent Caution Acts of 1491 and 1535. It is difficult to follow Erskine's reasoning in this matter, and it is far from clear that Erskine's view is correct. If one adopts the older view of the proper fiar possessing a title subject to the personal servitude or burden of the liferenter's interest, then the artificialities of Erskine's account can be avoided. A proper fiar is simply in the position of an owner who has had his enjoyment of the subjects postponed until the termination of the liferent. However it is only the right of enjoyment to the subjects which has been postponed. While the liferent endures, the fiar's present interest is the preservation of the capital of the estate. The fiar has an immediate interest in the preservation of the subjects and, therefore, it follows, ubi jus ibi remedium, that any remedies open to any other owner faced with the damage or destruction of his property must be open to the fiar. The most obviously useful of such remedies would be interdict for threatened future harm and damages or a decree ad factum praestandum for harm already sustained to the subjects ..."

8. By interlocutor dated 31 August 2000, the sheriff sustained the respondent's first plea-in-law and dismissed the action as incompetent. He noted:

"...Here, apart from the lucid and persuasive urgings of Mr. Stewart [counsel for the appellants], all I had to meet the straightforward fiat of Erskine (that the only remedy open to a proper liferenter was to seek cautio usufructuaria) was an obiter observation by the author of an article in the Stair Encyclopaedia to the effect that "it is far from clear that Erskine's view is correct". Having listened carefully to the arguments and having read the authorities ... though I cannot but agree with the sentiments of the author in the Encyclopaedia I cannot see that I can with such limited support hold that Erskine is wrong ...

The nub of the question is whether security is all that a fiar can require from a liferenter. I do not see that the cautio was necessarily the only remedy available under Roman Law even though it certainly seems to have been the only one mentioned in the literature. It may also be the case that the finding of security was not the only remedy open to a fiar in Scotland in pre-Erskine times but, for whatever reason, that position seems to have been generally accepted by Erskine.

Proper liferents have been out of favour for many years. It is not without significance that the only case law I was referred to dated from 1823. To speculate, it may be that one reason for the device's patent lack of popularity might well be just because of that very lack of flexibility effeiring to the enforcement of the fiar's interests in the fee. The present proper liferent was constituted as late as 1976 and seems almost an aberration or a hangover from the past. It may be that if the law were changed or re-declared, proper liferents might come back into fashion, but this is not the forum for that to be initiated in. I consider that Erskine's declaration of the law on the matter is what I must follow and accordingly I sustain the defender's first plea in law and dismiss the action as incompetent."

Appeal to the Court of Session

9. The appellants marked an appeal to the Court of Session. The appeal was heard in the First Division on 7 and 13 December 2001.

Summary of arguments

10. Counsel for the appellants contended that a fiar was not denuded of ownership; his right of enjoyment of the property was merely postponed; his interest as owner was to have the thing preserved. The corollary was that the usufructuary or liferenter must preserve the subjects and not cause damage to them. Counsel presented three main submissions: Firstly, the passage in Erskine at II.9.59, properly read, was not to be taken as saying that it was incompetent for a fiar to seek an order ad factum praestandum against the liferenter, failing which, damages, where there had been partial damage to the heritage caused by the wrongful act or omission of the liferenter. Secondly, if Erskine, properly construed, did state that it was incompetent for the fiar to seek specific implement or damages against the liferenter, he was not correct, and should not be followed. The passage in Erskine did not reflect Roman law, from which the concept of liferent was derived. Nor did it reflect domestic law relating to liferent and fee, and the duties arising therefrom. Thirdly, in any event, if Erskine properly construed did state that it was incompetent for the fiar to seek specific implement or damages against the liferenter, and if that were indeed good law at the time of writing, the proposition was no longer binding on the court in the present day, having regard to changes in the law and in society. Counsel invited the court to allow the appeal, and to remit the cause back to the sheriff to proceed as accords.
11. Counsel for the respondent submitted, first, that Erskine meant what the sheriff said that he meant. If Erskine had wished to state that damages could not be recovered against a liferenter where the fee had not yet vested, but could be recovered where the fee had vested, he would have said so. Other institutional writers such as Stair, Bankton, and Bell referred only to the remedy under the 1491, 1535, and 1594 Acts. If a fiar had a right to claim damages against a liferenter, there would be no need for the cautio usufructuaria. The respondent's position was supported by writers such as Rankine, Land Ownership, at pages 745-746; Dobie, Liferent and Fee, at pages 204-205; 243-247; and the Stair Encyclopaedia, Volume 13. Erskine was an institutional writer, and must be followed. Secondly, counsel submitted that there was no convincing evidence to suggest that Erskine's statement of the law was wrong. Thirdly, counsel submitted that alleged changes in law and society provided no basis for declining to follow Erskine. Counsel invited the court to refuse the appeal.

The first argument: Erskine, Institutes II.9.59

12. Erskine, Institutes II.9.59 states:

"Yet where waste is already committed, no action is competent to him who stands presently in the fee for recovering damages; for the damage is due to that person alone to whom the fee shall open after the liferenter's death; and it is possible that if the presumptive heir, prosecuting such action, should die before the liferenter, his executor, to whom the sum recovered upon that action in name of damage would fall, might not be fiar of the liferented subject at the expiration of the liferent."

13. As the passage makes clear, it is the fiar in whom the fee ultimately vests who is entitled to claim in respect of any breach of the liferenter's obligation to use the subjects salva rei substantia. In some cases, where vesting is postponed until the termination of the liferent, the identity of the fiar cannot be ascertained with any certainty until the death of the liferenter. There may nevertheless be a putative fiar (a " presumptive heir"), who appears for the time being to be the person in whom the fee will vest. In our view, Erskine's intention in the passage above quoted was to warn the reader that such a putative fiar ("who stands presently in the fee") cannot competently seek damages from the liferenter for breach of the obligation uti salva rerum substantia so long as the liferent subsists: for "if the presumptive heir, prosecuting such action, should die before the liferenter, his executor, to whom the sum recovered upon that action in name of damage would fall, might not be fiar of the liferented subject at the expiration of the liferent". In other words, any decree which the court might grant during the currency of the liferent might be misdirected in the event that the putative fiar died before the liferenter, and the fee in the heritable subjects vested in another person.
14. Accordingly it appears to us that the sheriff and those appearing before him took too general a proposition from the passage at Erskine II.9.59. We are of opinion that the passage does not in terms state that in all cases of proper liferent - including situations where the fee has vested indefeasibly - a fiar cannot competently, during the currency of the liferent, seek damages from the liferenter for breach of the latter's duty to use the estate salva rei substantia. Nevertheless, the fact that the passage may have been read too broadly does not necessarily mean that the present claim for damages is competent. Furthermore the passage does not touch upon the competency of the appellants' primary crave for decree ad factum praestandum. It is accordingly necessary to examine the authorities cited in the course of counsel's further submissions in order to ascertain whether there is support, either in authority or in principle, for the proposition that a fiar, vested indefeasibly in the fee (as the pursuer in this case is), may be entitled to decree ad factum praestandum failing which damages against a liferenter during the currency of the liferent in respect of the latter's obligation to use the estate salva rei substantia.

The second argument: Roman and Scots law

15. Counsel for the appellants' second proposition was that, esto Erskine II.9.59 properly construed stated that it was not competent for a fiar to seek damages from a liferenter in the course of the liferent in respect of the latter's breach of duty to use the estate salva rei substantia, then Erskine was wrong.
16. As indicated above, we do not accept that the passage in Erskine bears the meaning suggested by counsel. Nevertheless it is necessary to examine the authorities cited in order to ascertain whether there is any authority for the proposition that a fiar such as the appellant in the present case, being indefeasibly vested in the fee, may be entitled to a decree ad factum praestandum, failing which damages, during the currency of the liferent.
17. Reference was made firstly to Stair's Institutes II.6; then to Bell's Principles 14, paragraph 1037. Neither of these passages appeared to assist in determining the competency or otherwise of the present action.
18. Counsel then referred to the commentary by Professor J A C Thomas on Justinian's Institutes II.IV:

"if the fructuary destroyed the thing or used it for purposes other than that for which it was designed, he would be liable like any third person to, for example, an actio furti or ex lege Aquilia by the dominus. For his part, the fructuary had a real right which he could assert, if necessary, against anyone, including the dominus, by actio confessoria. It was probably the praetor who established a direct relationship between dominus and fructuary by requiring the latter, at the commencement of the usufruct, to give an undertaking (cautio usufructuaria) secured by sureties that he would behave like a bonus paterfamilias in respect of the thing and return it at the end of the usufruct".

19. Counsel also referred to Justinian's Digest 9.1.1 to 9.1.7 (C.H. Monro's edition, 1909, Volume II, pages 58-59). Justinian notes that a usufructuary normally gave two undertakings: one to the effect that he would use the thing in such a way as would satisfy an impartial arbitrator, and the other that when the usufruct should cease to belong to him he would restore what was left of it. The Digest explains:

"3. The party must promise that the usufruct shall be enjoyed in such wise as to satisfy a reasonable arbitrator, that is to say, that he will not bring down the prospective value of the usufruct, and that he will act in all respects as he would if the thing were his own property...5. It was thought best that an undertaking should be given to the effect above mentioned by means of a stipulation, in order that, if the party should not use the thing in question agreeably to the judgement that would be given by a reasonable arbitrator, it might be possible to sue on the stipulation at once; and thus people do not have to wait till the usufruct expires. 6. The stipulation refers to two occasions in which it may come into operation; there is first the case of the party using in some way which would not be approved of by a reasonable arbitrator, secondly the case in which the usufruct is to be surrendered; the former clause will take effect as soon as ever the usuary commits an irregularity in respect of the use such as is described, and it may take effect again and again; the second takes effect on the termination of the usufruct."

20. While these passages seem prima facie to provide some support for the proposition that a fiar can, during the currency of the liferent, competently seek either a decree ad factum praestandum or damages from a liferenter said to be failing in his duty salva rei substantia, we have two reservations: firstly, as counsel for the respondent submitted (in our view, correctly), simply because a remedy may have existed in the Roman law of usufruct does not necessarily mean that the same remedy or its equivalent has been incorporated into Scots law. Secondly, it is not clear to us that Justinian was referring to a liferenter who had done no more than to enter upon the estate and enjoy the use thereof. The wording of the passages quoted seems to suggest that there may have been a practice in Roman times whereby the usufructuary was requested, at the beginning of the liferent, to give a personal and express undertaking or promise or stipulation (whether orally or in writing), which undertaking or promise or stipulation could then form the basis of a competent action against the liferenter during the currency of the liferent ("and thus people do not have to wait till the usufruct expires"). No such express undertaking or promise is founded upon in the present case. For these two reasons, we have difficulty accepting the passages in Justinian's Digest and the commentary by Professor Thomas on Justinian's Institutes as authority for the competency of an action for specific implement failing which damages in the circumstances of the present case.
21. Counsel for the appellants then referred to another passage in Justinian's Digest 7.1.13 (page 9 of Monro's edition):

"13. If there is a legacy of the usufruct in anything, the bare owner can claim security in respect of the thing, this to be ordered on motion made to the judge (officio judicis); for, just as the usufructuary has a right to use and produce, so the bare owner has a right to be assured in respect of his ownership ...

1. Accordingly, when an action is brought in the matter of a usufruct, the judgement does not turn simply on what has been done already, but involves also directions as to the exercise of the right of usufruct for the future. 2. For cases of damage already done the usufructuary is answerable under the lex Aquilia as well, and he is liable to an interdict quod vi et clam, so Julianus says; there being no doubt at all that a usufructuary is amenable to the proceedings mentioned and also to actions for theft, just like any other person who should have been guilty of any such offences in respect of another man's property. Moreover, to the question what is the use of the praetor holding out a special action [presumably the cautio usufructuaria: see Professor Thomas' commentary on Justinian's Institutes II.IV, quoted above] when there was already a good right of action under the lex Aquilia, [Julianus] replied that whereas there were cases in which the action under the lex Aquilia was not available, for that reason a judge was assigned, so that the party might go by his decision; a man, for instance, who does not plough up the arable land, who does not plant fresh vines, or who allows watercourses to fall out of repair is not liable under the lex Aquilia ..."

22. While accepting that the Scots law of liferent and fee borrowed considerably from the Roman law of usufruct, and that the broad principles outlined by Justinian have influenced Scots law to a great extent, we are unable to accept counsel's invitation to find, in the passage above quoted, a reason or basis for assuming that Scots law followed Roman law to the extent that a fiar is entitled to seek specific implement or damages against the liferenter during the course of a liferent. Not every remedy which was available to a dominus in Roman law has become available to a fiar in Scots law. Roman law had its own procedural specialties: for example, liability under the lex Aquilia arose only upon a positive act of commission, not upon a mere omission: see for example Walker, Delict (2^nd edition) pages 18-19. Thus Justinian suggests that the lex Aquilia could not provide a remedy against a man who failed to "plough up ... arable land, ... plant fresh vines, or who allows watercourses to fall out of repair". Ultimately, we are not persuaded by the reference to Justinian's Digest 7.1.13 that a fiar in a Scottish liferent has the remedy of specific implement or damages against a liferenter in the course of the liferent in respect of his alleged breach of duty under the liferent.
23. Counsel then turned to Bankton's Institutes, II.6.3:

"26. A liferenter must not commit waste upon, or deteriorate the ground, but use the subject, salva rei substantia, without destroying it or wasting it, whether by commission, or omission and negligence ...

27. A liferenter was, by the civil law, bound to find caution at the sight of the judge, se boni viri arbitratu usurum fruiturum: and by ours, a liferenter is likewise liable to the same diligence in preserving the subject, and due care in the management of it, and must find surety for that purpose. The method directed, in order that this may be accomplished, is, that the liferenter may be charged by the judge ordinary to find caution, within 21 days, to preserve the houses, gardens, orchards, woods and parks, in the same condition he finds them at his entry: upon refusal, he forfeits the profits of the lands liferented to the crown, until such caution be found ...

28. It is plain, both from these statutes, and the nature of the thing, that all liferenters must bear the ordinary expenses of keeping the subjects in repair; but extraordinary disbursements, tending to the perpetual benefit of the fiar, must be refunded by him at the liferenter's death ...

24. While these passages again provide some insight into the evolution of the concept of liferent in Scots law, and while they make reference to the undisputed statutory remedies available to an aggrieved fiar, they do not in our view give any support for the proposition that an action ad factum praestandum failing which damages may be raised by a fiar against a liferenter during the currency of the liferent.
25. Referring again at this stage to the disputed passage in Erskine II.9.59, the appellants' counsel submitted that Erskine should be read as saying that no action for damages was competent in a situation envisaged by the 1491 Act where it was not known to whom the fee would ultimately devolve. However in a situation where one did know to whom the fee had devolved, the passage in II.9.59 did not apply. The fiar was a bare owner. He could dispose of the subjects at any time, subject to the interests of the liferenter. If the fiar was identified, it mattered not if he was no longer alive at the natural termination of the liferent. A fiar who proved a loss or a decrease in the value of his property occasioned by the neglect of the liferenter was entitled to reparation. That entitlement passed to his executors.
26. Counsel accepted that this argument had not been presented to the sheriff.
27. Turning from Roman law to Scots law, counsel for the appellants conceded that there appeared to be a lack of Scottish authority clearly supporting their position. Counsel referred to Dobie, Liferent and Fee, Chapter 10, where the author notes at pages 243-244:

"It is generally stated that the fiar's remedy to enforce implement of the liferenter's obligations is to demand cautio usufructuaria under certain old Scots Acts which will be noticed presently, and that, in such a case, the fiar cannot claim damages for loss already suffered by the estate, as these are due only to the person who may be in possession of the fee when the liferent terminates, and if such an action was admitted, and the fiar predeceased the liferenter, the damages would pass to the fiar's executor, who might not be the person entitled to succeed to the fee. [Footnote: Erskine II.9.59; see also Bell v. Bell, 1827, 6S. 221]. But from the operation of this rule there must be excluded any parts of the subjects in which the fiar may have an immediate beneficial interest, of which perhaps the best example is timber. In such cases the fiar would appear to be entitled, in addition to his right to demand caution, to intervene at once, both to prevent the carrying out of any acts which may be detrimental to his interests, and to recover any damage he may have suffered from what has already been done. Thus a fiar was granted interdict to prevent unauthorised cutting of timber by a liferentrix, and in another case, where a fiar obtained declarator of his rights in timber and minerals, the Inner House remitted to the Lord Ordinary to deal with his claim of damages for loss already sustained [Footnote: Dickson v. Dickson, 1823, 2 S. 152].

In the normal case, where the fiar's interest is not of this immediate character, and consists of his ultimate right to full enjoyment on the liferenter's death, his remedy for enforcing the liferenter's obligations is to demand cautio usufructuaria..."

After referring to the Acts of 1491, 1535, and 1594, the author continues at page 245:

"... Whatever may have been the original practice in proceedings brought under these Acts it seems to be clear that caution would not now be required as a matter of course, but only on proof of actual damage, or of the prospect of damage, as a result of the liferenter's misuse of the subjects, or of his waste or neglect. Thus caution was refused where no allegation was made of any acts tending to damage or deteriorate the property, the fiar's rights being reserved if he could show material injury resulting from improper cultivation or the like. Since the decision just noted there appear to be no reported cases of demands for caution under these Acts, but it is thought that their provisions remain effective, and that the remedies provided are open to fiars for the purpose of enforcing their rights.

The question remains whether the fiar has any other remedy than a demand for caution where damage is done or threatened, and his interest is ultimate rather than immediate. The only reported case which appears to approach this question is Ewing v. Ewing ..."

28. Counsel then examined Ewing v. Ewing (1881) 19 S.L.R. 20. In that case, a fiar sought declarator that he was entitled to protect young trees on the estate, and to kill hares and rabbits which were injuring them, and damages for loss caused by the failure of the liferentrix to keep the hares and rabbits under control. The liferentrix challenged the relevancy of the action, and the fiar's title to sue, the latter challenge being expressed in a plea-in-law in the following terms:

"The pursuer having only the rights of fiar in the estate in question, subject to the free liferent use and enjoyment of the same by [the liferentrix], he has no title to insist on the conclusions of the action".

The Lord Ordinary allowed a proof before answer. His decision was not reversed by the Inner House. Counsel submitted that this was a case in which a fiar sought to interfere with the actions of a liferentrix, using declarator and interdict, not the cautio usfructuaria. The action had survived in the Inner House, and had not been dismissed as incompetent. The appellants' action should likewise be permitted to proceed to a proof before answer.

29. We do not regard Ewing v. Ewing as a reliable authority providing support for the appellants' argument. Firstly, the case appears prima facie to be an example of a fiar's present beneficial interest in growing timber. However Dobie (at page 245) describes the case as relating to "damage to young plantations in which the fiar had an eventual but not any present beneficial interest". Without further investigation into the facts, and without the benefit of full legal submissions, it is not possible to form a concluded view about this case.
30. Secondly, the Inner House had grave reservations about the nature of the action, and the correctness of the Lord Ordinary's decision to allow a proof before answer. The Lord President (Inglis) at page 22 described the action as "very peculiar, and [involving] some questions on which there is confessedly no authority". He expressly reserved all questions of law, commenting that:

"...the Lord Ordinary, having thought fit to send the case to proof, reserving all the questions of law in the case under the words "before answer", I am not disposed to press the necessity of separating the case into parts ..."

31. A third reason for placing little reliance upon Ewing v. Ewing is that it appears that the action was adjusted without any authoritative ruling on questions of law (Dobie, page 246).
32. In all the circumstances, Ewing does not, in our view, provide reliable support, either in authority or in principle, for the proposition that a fully and indefeasibly vested fiar such as the appellant can competently resort to remedies such as declarator, interdict, damages and specific implement against the liferenter, except in relation to those parts of the estate in which the fiar has a present beneficial right.
33. Counsel for the appellants then referred to Rankine, Land Ownership (4^th edition 1909) at pages 743 et seq. At pages 745-746, the author states:

"The proper remedy open to the fiar for enforcing the obligations of the liferenter to use the subject of his right tanquam vir bonus, and to restore it at the expiry of his liferent, is a demand for the cautio usufructuaria. This remedy, rendered necessary in the Roman law by the unsuitability in such cases of the actio Aquilia, the actio injuriarum, and the interdict quod vi, was introduced into Scotland by statute in 1491... Except in cases where the fiar complains of an infringement by the liferenter of a present beneficial right - such as the cutting of wood [Footnote: Dickson v. Dickson 1823, 2 S. 152] - the remedy pointed out by these statutes is the only course open to the fiar in order to control the liferenter's management [Footnote: Bell v. Bell 1827, 6 S. 221], since neither the fiar for the time being, nor, in the event of his predeceasing the liferenter, his executor, to whom any sum recovered in name of damages would fall, may be the fiar at the expiry of the liferent [Footnote: Erskine II.9.59]..."

34. Counsel for the appellants submitted that Rankine's statement of the law was incorrect. The case of Dickson v. Dickson (1823) 2 S. 152 was concerned with an inquiry into damages: the nature and extent of the inquiry was not clear. The case concerned a conjunct liferent in which the ultimate destination of the fee was complicated. All the authorities referred to by Rankine concerned postponed vesting. Rankine's statement of the law was simply wrong.
35. We do not accept that the passage in Rankine is a mis-statement of the law. The case of Dickson v. Dickson in our view confirms the principle that a fiar can have a present beneficial right or interest in growing timber and in minerals. When a fiar has a present beneficial interest, he is entitled to remedies such as declarator, interdict, damages, and specific implement against the liferenter in respect of those parts of the estate in which he has that present beneficial interest. Thus the Inner House decided that the fiar was entitled to cut wood and work the minerals, provided that he did not interfere with the amenity or shelter of the estate. The court refused to make any order ad factum praestandum in relation to other parts of the estate, for example, the river banks. Further, the court remitted the question of damages to the Lord Ordinary, and by that we understand that the Inner House requested the Lord Ordinary to consider whether the fiar was entitled to damages in respect of a possible loss suffered by the fiar in relation to his present beneficial interest in the growing timber, as the liferenter had cut and sold some wood. We are not persuaded that the remit by the Inner House related to any entitlement on the part of the fiar to damages in respect of the liferenter's alleged failure to fortify the river banks.
36. Counsel referred to Bell's Principles, and submitted that Bell gave no clear statement of any remedy available to the fiar. At paragraph 1062, Bell notes that:

"[A liferenter] may be called on by the fiar to make such ordinary repairs as are necessary to preserve the tenement in a habitable and tenantable condition [Footnote: Scott v. Haliburton 1823, 2 S. 435]."

Counsel then suggested that Scott v. Haliburton appeared to be an example of the remedy of specific implement being available to a fiar against a liferenter during the existence of the liferent. Vesting was not postponed in that case.

37. It appears to us, however, that in Scott v. Haliburton the Inner House merely ordered consignation of a certain sum of money, at the same time directing the sheriff to hear parties on objections to the tradesmen's reports, and if necessary to allow a proof of the state of disrepair. We do not read this case as authority supporting the appellants' contention that a fiar is entitled to specific implement or damages against a liferenter during the currency of the liferent. On the contrary, ordering consignation of a sum of money is more akin to finding caution (cf. the statutes of 1491 and 1535), while an enquiry into tradesmen's reports and the state of disrepair appears to be directed to establishing the precise state of the premises and the degree of disrepair at the date in question (cf. Justinian's advice in the Digest 9.1.4, and the importance of proving the state or condition of the liferented estate referred to in Cuningham v. Cuningham (1733) Mor 8275).
38. Counsel also referred to Bell v. Bell (1827) 6 S. 221 as an example of Scottish authority apparently vouching the competence of the remedy of specific implement by a fiar against the liferenter during the currency of the liferent. It was submitted that the Lord Ordinary appeared to have granted an order ad factum praestandum. However we note that the Inner House strongly disapproved of the Lord Ordinary's approach. Lord Alloway commented (at p.223):

"A tercer [liferenter] cannot be called in question for management, except under two statutes, and neither the one nor the other of them is once mentioned; and if the application had been made on them, there is not a single interlocutor, from beginning to end of the proceedings, which would have been competent."

The Lord Justice Clerk (Boyle) and Lord Pitmilly concurred. In view of the opinions expressed in the Inner House, we are unable to find support in this case for the proposition that a fiar is entitled to seek decree ad factum praestandum against a liferenter in respect of management of the estate during the currency of the liferent.

39. Rogers v. Scott (1867) 5 M. 1078 was the next authority cited. As that case concerned a litigation arising only after the death of the liferentrix and the termination of the liferent, it does not assist the appellants in the present case. Cuningham v. Cuningham (1733) Mor 8275, also referred to, concerns difficulties of proof of the actual condition of a mansion house at the commencement of the liferent, the liferentrix having lived there until her death. Again this case provides no support for the proposition advanced by the appellants.
40. Reference was also made to the article in the Stair Encyclopaedia, Volume 13, particularly paragraphs 1660-1661. The law is in our view accurately summarised in the article as follows:

" ... Erskine used the notion of the separate interests of liferenter and fiar to come to the conclusion that during the liferent the fiar has only a very limited immediate "beneficial" interest (growing timber appears to be the main example) in the subjects, with his main interest being only an ultimate interest postponed until the end of the liferent.

In the limited circumstances where there is an immediate beneficial interest, the fiar is allowed to interdict a liferenter who is proposing to harm that interest in some way or claim damages for any harm already done him. But in all other circumstances the fiar's remedies are limited to demanding caution under two old Scots Acts, the Liferent Caution Acts of 1491 and 1535."

What follows that passage is a critique of the state of the law, but contains no support for the appellants' contention.

41. Counsel finished the second chapter of her submissions by observing that Roman law remedies had not been restricted to the cautio usufructuaria. In Roman law, the dominus could resort to the lex Aquilia in the event of negligent acts on the part of the usufructuary (but not negligent omissions, as omissions were not covered by the lex Aquilia): see the commentary by Professor Thomas on Justinian's Institutes, pages 269-274. There had also been the remedy of vindicatio. If Scots law was indeed limited to the remedy permitted by the 1431 and 1535 Acts, Scots law was very much restricted compared with Roman law. Counsel invited the court not to adopt such a restrictive approach, and to take into account the fact that none of the Scottish authorities cited specifically excluded or questioned the competency of a fiar's seeking specific implement and damages during the currency of the liferent.
42. Despite the diligent researches of counsel, we are not satisfied that there is any support for the appellants' contention, either in authority or in principle. It may be that the limitations of the lex Aquilia (which necessitated the development in Roman law of the cautio usufructuaria) resulted in Scots law adopting the cautio as the only appropriate remedy available to the fiar during the currency of the liferent. Although therefore we accept the force of the maxim ubi jus, ibi remedium, it is our view that in Scots law the fiar's rights during the currency of the liferent have been and are very restricted rights, with the corollary that the remedies available to the fiar during the currency of the liferent are likewise very restricted.
43. We specifically reserve our opinion on the question of appropriate remedies where a liferenter seeks to inflict deliberate damage on the subjects by positive acts, or where he seeks to misappropriate what does not fall under the liferent: cf. Dobie, Liferent and Fee, page 243; the commentary by Professor Thomas on Justinian's Institutes, 2.IV; Justinian's Digest, 7.1.13.

The third argument: the passage of time, and equitable considerations

44. Counsel for the appellants submitted that, if the appellants were wrong in the first two arguments, it was inequitable to deny the appellants remedies such as specific implement and damages. Whilst accepting that Erskine was an institutional writer and therefore prima facie a binding authority, counsel submitted that the time had come not to follow Erskine. The cautio usufructuaria was not mentioned in standard textbooks on civil remedies. It was a remedy unfamiliar to practitioners. The procedure to be adopted was far from clear. There was doubt as to the way in which the fiar should obtain caution, what was the appropriate form of action, and whether a proof was necessary. Counsel submitted that the cautio usufructuaria had in effect fallen into desuetude. Under reference to Beith's Trs. v Beith, 1950 S.C. 66, and in particular the statement of the Lord President (Cooper) at p.70 that "if it is manifest that the ratio decidendi upon which a previous decision has rested has been superseded and invalidated by subsequent legislation or from other like cause, that ratio decidendi ceases to be binding", counsel submitted that the passage of time had rendered Erskine less persuasive. In the twenty-first century, if a person had a right, that person expected to be able to enforce it.
45. Liferent and fee is a form of land tenure fairly infrequently used in the twenty-first century. We agree with the sheriff that its lack of popularity might well be attributable, at least in part, to the fiar's inability to control the actings of the liferenter during the currency of the liferent. Nevertheless in our view the limited remedies open to a fiar, and the virtual absence of any power to interfere in a practical way with the day-to-day running of the estate (other than in relation to those parts of the estate in which the fiar has a present beneficial interest) are inherent in the very concept of liferent and fee as it has developed in Scots law.
46. On one view, the limited remedies and lack of ability to interfere in a practical way reflect the intention of the granter of the liferent. A fiar is not intended to be in a position similar to a landlord, or a feudal superior, entitled to enforce compliance with conditions in the lease or feu. On the contrary, Scots law views the liferenter almost as a temporary owner, entitled to repair, maintain and decorate the subjects as he or she thinks fit, within the general principle of salva rei substantia.
47. In the context of larger estates, the same approach applies, although fiars of such estates might more readily be deemed to have a present beneficial interest in the woodlands or minerals in the estate, and therefore to be entitled to take certain practical steps to control these parts of the estate.
48. Counsel for the appellants did not specify any particular changes in society which might have rendered such an approach out-of-date. It seems to us that it is at least arguable that some changes in law and society militate against a fiar having a greater right to interfere in the management of the estate. For example, it could be said that modern laws relating to nuisance, environmental control, building control and planning, are more sophisticated and invasive than anything in Erskine's day, and that a liferenter such as the respondent is now subject to a greater degree of enforced supervision than in earlier times, rendering any suggestion of supervision and control by a fiar less appropriate. While we accept that the cautio usufructuaria is so rarely used that current text-books and style books give little guidance as to appropriate pleadings or procedure, we are not persuaded that changes in society or equitable considerations have resulted in its falling into desuetude. It is a limited remedy, but it seems to us that its limitations arise from the very nature of liferent and fee.
49. From a procedural point of view, we consider that an initial writ containing a crave inviting the sheriff to ordain the respondent to lodge a certain sum as cautio usufructaria, supported by averments similar to those made in the existing action, together with appropriate pleas-in-law, would be one way of bringing the matter competently before the sheriff. The action would be an ordinary action. Proof might be required. If decree ordaining the respondent to lodge caution were granted, and if there were failure on the part of the respondent to obtemper that decree, the usual forms of diligence could be considered. Another compulsitor might be the forfeiture of the "fruits" of the estate (1535 Act; Erskine II.9.59; Stair's Institutes II.6.4). However forfeiture of the fruits might be of limited assistance in the context of a residential dwelling-house, unless it could be argued that one of the fruits should, in the twenty-first century, be regarded as including the actual right to occupy. A further form of compulsitor might be contempt of court.

Supplementary argument relating to difficulty in assessing damages during the currency of the liferent

50. In the course of the debate in the Inner House, there was some discussion about difficulties which might arise if a court were to try to assess damages during the currency of the liferent. Depredations to the estate might be assessed at a particular point in time during the liferent; yet the liferenter might subsequently effect repairs, and restore the house or the estate to its former value.
51. Counsel for the appellants submitted that mere practical difficulties in quantification should not serve as a bar to the remedy of damages. The court could always resort to granting decree but suspending extract, or ordering caution or consignation. On the second day of the appeal, counsel for the appellants referred to certain additional authorities relating to damages, supporting the proposition that any difficulty in calculating damages did not render a remedy incompetent. Damages might be calculated by means of repair costs, or diminution in value, or a combination or cross-check approach, using both measurements. Reference was made to Watson, Laidlaw & Co. Ltd. v. Potts, Cassels, and Williamson, 1914 SC (HL) 18; A/B Karlshamns Oljefabriker v. Monarch S.S. Co., 1949 S.C. (H.L.)1, at pages 20, 28; Duke of Portland v. Wood's Trs., 1926 S.C. 640; Joyner v. Weeks [1891] 2 QB 31; Fraser v. McDonald (1834) 12 S. 684; Crewe Services & Investment Corporation v. Silk [1998] 2 E.G.L.R. 1; Conquest v. Ebbetts [1896] AC 490; Henderson v. Thorn [1893] 2 QB 164; and Scott v. Forbes (1755) Mor. 82.
52. We accept that practical difficulties in computation should not necessarily render the remedy of recovery of damages incompetent, and we have not taken such possible difficulties into account when reaching our conclusion on the competency of the appellants' action. However it seems to us that the practical difficulties above referred to, relating not only to quantification, but also to questions of immediate or delayed payment of damages, underline the wisdom of the apparently established law and practice in Scotland relating to a fiar's rights and remedies during the currency of the liferent.

Conclusion

53. We shall refuse the appeal and sustain the decision of the sheriff. We reserve the question of expenses for submission in due course.