Scottish Court of Session Decisions

Subject_1 LIFERENTER.
Subject_2 SECT. I.

What is comprehended under a liferent right of lands.

Campbell
v.
Stirling

1666. January.
Case No. No 5.

A liferenter being infeft in lands cum molendinis, found to have right to a mill built thereon after the infeftment, but to the multures of the liferent lands only.

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Archibald Campbell of Ottar, by contract of marriage, and infeftment following thereupon, did provide Anna Stirling his spouse, to the lands of Kinnaltie by charter, carrying cum molendinis et multuris. At this time there is no mill upon the lands, but during the marriage he builds one, and after his death the relict possesseth both lands and mill; whereupon, she and her present husband and tenants, are pursued by this Ottar for the duties of the mill. It was alleged, Absolvitor, because the mill was built upon the husband's lands, which she liferented, being infeft cum molendinis, and ædificia built by the heritor cedunt solo, and consequently to the liferenter. It was answered, That mills being inter regalia, are not transmitted without an express disposition and infeftment, and the general clause of a charter cannot do it. Replied, That the general clause gives her good right, unless there had been a going mill the time of the infeftment; in which case, it might have been questionable, unless the lands and mill had been erected in a barony; but where there was no mill, and a new mill is built, the mill accresceth to the liferenter during the liferent, as well as if she had built it herself after her husband's death.

Which the Lords found accordingly; withal the Lords declared, That if, after building the mill, her husband did thirle any other lands thereto beside her liferent lands, that she is not to have the benefit of any such restriction.

Gilmour, No 180. p. 130. *** Stair reports this case:

1666. February 16.—Laird of Ottar having infeft his wife in conjunct-fee or liferent, in certain lands cum molendinis, did thereafter build a mill thereupon, and the question arising betwixt the liferenter and the heir, who should have right to the mill? The liferenter alleged, ædificium solo cedit. The heir alleged, That a mill is distinctum tenementum, that cannot pass without infeftment, and the clause in the tenendo cum molendinis is not sufficient not being in the dispositive clause, nor any mill built then, and he offered to make up all the liferenter's damage by building on her ground.

The Lords found that the benefit of the mill belonged to the liferenter as to the multures of all that was ground without the thirlage; but found it not to extend to lands of the defunct's which he had thirled to the mill.

Stair, v. 1. p. 358.