PERSONAL -LIFE RENTS. Legal, terce, right being more amply interpreted than that of a simple liferenter who had no prior interest in the lands d. LEGAL liferents are the terce and courtesy which we have courtesy. already taken fome notice of. Salva rei subftantia. Eurdens LIFERENTERS must use their right falva rei fubftantia, and therefore cannot cut growing timber, nor work coals or minerals. But where a coppice or filva cadua has been divided into hags, one of which was cut annually by the proprietor, the liferenter may continue the former yearly cuttings; because these are confidered as the annual fruits the fubject was intended to yield, and fo the proper fubjects of a liferent. LIFERENTERS are directed to find fecurity (cautio ufufructuaria) that they should keep the subject in good condition during the liferent, under the penalty of lofing the profits thereofs. A special method is chalked out in the cafe of tenements within borough". Liferenters are alfo burdened with the alimony of the heir, where he has not enough for maintaining himself, which is founded in an extenfion of the last clause of act 1491, c. 25; by the first part whereof, not only ward-fuperiors, but liferenters were obliged to preferve in good condition, the fubject of the ward or liferent. Liferenters are also subjected to the payment of the yearly ceffes, ftipends, &c. falling due during their right, and to all other burdens that attend the fubject liferented. d Erfk. B. ii, tit. 9. If the grant generally exprefs the right of working coals, the liferenter may work any colliery that had been opened before the commencement of his right, provided he does not employ a greater number of colliers, or bring up a greater quantity of coals than the proprietor did. (Ersk. B. ii, tit. 9.) f 1491, C. 25. § 2. PERSONAL -LIFE RENT. THE liferent is extinguished by the liferenter's death. That part of the rent which the liferenter had a proper right to before his death falls to his executors; the reft, as never having been in bonis of the deceased, goes to the fiar. Martinmas and Whitfunday are, by our custom, the legal terms of the payment of rent: confequently, if a liferenter of land furvives the term of Whitfunday, his executors are entitled to the half of that year's rent, because it was due the term if he furbefore his death; if he furvives Martinmas, they have a funday. right to the whole. And this is the rule, though the con- If Martinventional term should be after Martinmas; for ftill the rent, mas. though not payable, was due while the liferenter was yet alive, and the poftponing the term of payment cannot hurt the right of the executors. A liferenter, who outlives any part of the term day, tranfmits to his executors the right to that term ". Ir the liferenter, being in the natural or perfonal poffeffion, and having first fowed the ground, fhould die, even before the Whitfunday, his executors are entitled to the whole crop, in refpect that both feed and induftry were his ". vive Whit If the con ventional term be different. LIFERENTS of mills, though their fruits are continual, Mills, die in diem, are governed by the fame rule with liferents of land. In a liferent of money, conftituted by a personal bond, of money. the executors have a right to the intereft, down to the very day of the liferenter's death, where no terms are mentioned for the payment thereof; but in the cafe of an heritable bond, or of a money liferent fecured on land, the interests of liferenter and fiar, (or of heir and executor, for the fame negy. Gosford, 24th July 1668, Car F. 8th Dec. 1704, Paterson. 25th July 1671, Guthrie. d 8th Dec. 1617, Guthrie. 62. PERSONAL -LIFE RENT. $3. PREDIAL SERVITUDES. rules ferve to fix the interefts of both), are governed by the legal terms of land rent, without regard to the conven tional'. III. PREDIAL or real fervitudes are either urban or rural, This diftinction depends not upon the fituation, but the use of the fervient tenement; urban fervitudes, meaning those which relate to houfes, though fituated in the country, as, for example, a dwelling-house and offices built for the use of a farm; and, on the other hand, rural fervitudes regarding land wherever situated, as, for example, a field or garden within the liberties of a city. THE chief urban fervitudes among the Romans were tigni immittendi, or the right of fixing in our neighbour's wall a joift or beam from our houfe, and oneris ferendi, or the right of refting the weight of one's houfe upon his neighbour's wall; both which Mr. Erskine terms a fervitude of fupport, the general nature of both being the fame. And the effential difference between them lay in the precife form of words that the Romans ufed in conftituting the fervitude oneris ferendi, viz. Paries oneri ferundo uti nunc eft, ita fit; by which words, against the general rule of fervitudes, the owner of the fervient tenement was bound to repair it, unlefs he chose to throw up the property altogether. But lord Stair and Mr. Erfkine concur in opinion, that with us the owner of the fervient tenement is not bound to repair it, unless he has come under fuch an obligation %. c. 11th Jan. 1738, Carruthers. Erfk. B. ii, t. 9, Bruce, 108, 1 the whole, and the area on which the houfe ftands fupports the whole; so that there is a communication of property, in confequence of, which the proprietor of the ground floor must, without the constitution of any fervi tude, uphold it for the support of the upper, and the owner of the highest ད 3+ PRZDIAL STILLICIDE is that fervitude by which a proprietor is entitled to throw the rain water falling from his own house URBAN. immediately upon his neighbour's ground. But if the water Stillicide. fall within his own property, though at the smallest distance from the march, the owner of the inferior tenement must receive it, that being a fervitude constituted by nature itself. tollendi. Light.' The fervitudes altius non tollendi, et non officiendi luminibus Alius nos sel prospectui, restrain proprietors from railing their houses beyond a certain height, or from making any building whatfoever that may hurt the light or profpect of the dominant. tenement. Negative fervitudes cannot be conftituted by prefcription alone. A proprietor may have built his house ever fo low, or not have built at all upon his grounds for 40 years together; but this will not prevent him from after- feription. } wards building a houfe on his property, or raising it to what height he pleafes. Such fervitudes, however, affect fingu. lar fucceffors. By pre ONE of the chief rural fervitudes is the privilege of paff--RURAL-] age. As the Romans had their iter, aclus, via, fo we have a foot path, a horse road, a cart or coach road, and ways or loanings by which cattle may be driven from one field to another, which terms correfpond nearly to the other; only, florey must uphold that as a cover to the lower. Where the highest floor is divided into garrets among the feveral proprietors, each proprietor is obliged, according to this rule, to up hold that part of the roof which covers his own garret. Stair, 2, 7, 62. L. 4, 15, De ferv. præd. urb. i Clelland feued to Gray a piece of ground to build a house. In the. feu right it was fipulated that he was not to erect any building on the contiguous property on the north, fo $3. PREDIAL -RURAL -PRIVATE WAYS. in claffing these roads, the Romans looked to the breadth thereof, we look to the manner of using them 1. THESE defcriptions of private ways are confidered as a fervitude upon property, and must be conftituted, either by fpecial grant, or by immemorial usage, that is, for more than 40 years back. It is not every usage of traversing a perfon's property that is understood to conftitute a fervitude1 The small proprietors of town acres, after their corn is cut down, generally lead it, each through his neighbour's ground; this, though done for 100 years, will not infer a fervitude". In like manner, a fervitus fpatiandi, or walking in an open field, was not fuftained from ufe and wont ". i Ersk. Inst. B. ii, t. 9, § 12. 1 For 40 years Thomas Purdie had paflure ground belonging to the city of Edinburgh, had been used by the inhabitants of Edinburgh, for time immemorial, for playing at golf, and walking. A little bit of the most rugged and ufelefs part of this field was feued out to Mr. Fairholm. He began to inclose it, but was stopped by a com. plaint exhibited to the sheriff by Mr. Cochran and others, proprietors of houses and yards conterminous to the links, fetting forth, that they, their predeceffors, and authors, had acquired a fervitude spatiandi of amufing themselves in this field. "Pleaded for Fairholm, perfonal fervitudes are not received into the law of Scotland; there muft always be a dominant tenement where there is a fervient... And, in the cafe of the town of Dunse, 22d Nov. 1732, it was found that the town could not m Kilkerran, vece Servitude, No. 3, acquire a rural fervitude, as it had 20th July 1749. n Cochran against Fairholm, 8th February 1759. Fac. Coll. "The Bruntsfield links, an open piece of neither property in lands nor houses. "Mr. Cochran, finding that the sheriff was difpofed to determine against him, advocated the caufe to |