The Laird of Philorth v. The Heritors of the Parish of Rathan, or Lord Fraser
Date: 28 June 1666 Case No. No 4.
An action having been raised for having it declared that part of a church-yard was the property of the pursuer, it was found, that the pursuer had homologated the right of the heritors, by burying the dead of his own family in the ground disputed.
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In a declarator of property pursued by the Laird of Philorth against the Heritors of the parish of Rathan, to hear and see it declared, that the kirk-yard dyke and stile of Rathan erected therein, may be cast down upon the ground, because the foresaid kirk-yard was enlarged 18 feet outward upon the ground of the lands of Rathan, whereof he had right, and was in possession by all deeds of party, and which dyke was built without his knowledge and consent in anno 1636; and thereanent, and of the stile made therein, he entered action of declarator and demolition in the year 1637, which is of new again wakened.—To which it was answered, That the place was now locus religiosus, and became sepulchrum. 2do, That the same hath not been quarrelled by the space of 30 years; and that this being a kirk-yard, must have the privilege of decennalis et triennalis possessio, whereby the right is prescribed in favorem ecclessiæ. 3tio, That Philorth had homologated the destination of the ground, in so far as he had built a part of the dyke himself, and others at his direction; and that he caused inter his tenants there, and had been present thereat; and last of all, craved a cognition.——The Lords sustained the declarator, and refused, in the first place, to grant a cognition, the same being once competent, where both parties pretend to the property, which was not in this case; and found, that the right of the kirk-yard could not prescribe by 10 or 13 year's possession; and found, That Philorth had homologated the designation, in so far as he caused or consented to the burying of his own dead, and had consented and given warrant for the burying of his tenants; and repelled the homologation founded upon the bigging of the dike, but in so far as he had built, and no more, or given warrant therefor; and without prejudice to him to quarrel the putting up of arms on the kirk style.
Fol. Dic. v. 1. p. 377. Newbyth, MS. p. 66.*** Stair reports the same case:
The Laird of Philorth pursues a declarator of property of lands lying about the kirk-yard of Rathan; and particularly, that a part of the land, within the kirk-yard dyke, is his property; and that therefore the dyke ought to be demolished, and specially the Lord Fraser's arms upon the common entry of the kirk-yard dyke. It was alleged for the defenders; 1st, Absolvitor; because the pursuer had homologated the right of the kirk, as to the kirk-yard dyke, and all within it, in so far as he had buried the dead of his own family in the bounds in question, and likewise his tenants.
The Lords found the former part relevant, but not the latter, unless he had been present at his tenants burials, or otherwise had consented.
The defenders further alleged absolvitor; because the minister and parishioners of Rathan had possest the kirk-yard and dyke peaceably by the space of 30 years, which is sufficient to give them a right upon this point.
There occurred to the Lords these points, 1st, Whether less possession than 40 years could constitute the full right of a kirk-yard? 2dly, Whether less possession, by burying of the dead, could take away another's property? And whether simply, or so as to give him damage and interest? 3dly, Whether an interruption, made after the building of this dyke, by the pursuer's raising summons, shortly thereafter, could operate any thing? if the defenders had bruiked, since the interruption, by that space, that would have been sufficient to constitute a full right before interruption.
Many were of the opinion, that kirk-yards have as great privilege as any kirk lands; and that, in kirk lands, 10 years possession before the reformation, or 30 years after, according to the old act of sederunt of the Lords, did constitute a full right, as well as the long prescription in other cases; and likewise, that, in ecclesiasticis, 13 years possession did constitute a right, decennalis et triennalis possessor non tenetur docere de titulo; and that accordingly the Lords were in use to decide in all such rights. But the point to be decided was, Whether interruption once used endured for 40 years? so that albeit 13 years would suffice, yet the interruption long before these 13 would always be sufficient, till the interruption did prescribe by 40 years; wherein many were in the negative, that as, in a possessory judgment on seven years, if interruption were alleged, it was always a relevant reply, that since the interruption, the defender has possest seven years without interruption; so, if 10 or 13 years be sufficient to the kirk, no interruption preceding, but only such as are done during these years, can be sufficient; for, if 13 years will take away the solemnest rights and writs, much more may it a citation.
Others were for the affirmative, on this ground, that, in the short prescription of three years, in spuilzies, &c. interruption once used serves for 40 years, so it must in this case; for he that once interrupts is always holden as continuing in that interruption, until it prescribe, or be otherwise past from. But it was answered, That it did prescribe, by possessing 13 or 30 years in rebus ecclesiæ, church-men seldom have or keep evidents; albeit, in other cases, interruption would only prescribe in 40 years.
Yet the plurality found, that, after interruption, no less than 40 years possession was sufficient, but reserved to the Lords the question anent the ground, in so far as dead were buried therein after probation. See Prescription.
