Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 KIRK.
Subject_3 Whether there can be exclusive property in a seat in a church?

Lieutenant-Colonel James St Claib
v.
Miss Jean Alexander of Rosebank

Date: 21 November 1776

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[Fac. Coll. VII. 263; App. I. —Kirk, No. I.]

Hailes. It is not proved that Yaxley Davidson erected this seat and possessed it for forty years previous to the citation in this process. But, independent of this, there were three seats, supposed to be the proportion of the church belonging to Roslin; two of them were thrown into Yaxley Davidson's seat, so that two-thirds of the Roslin seat goes to nine acres of the barony, and one-third to the rest. It is plain that part of the tenants in Roslin continued to sit in the seat fitted up for Yaxley Davidson. If the rights of the superior and the vassal are to be separated, is not the possession of the tenants to be held as the possession of the master? But the possession is said to have been ex gratia. This might do very well had Yaxley Davidson had any antecedent right; but he had none, and how can he acquire against the superior, while the tenants of the superior possessed during that space which was necessary for Yaxley Davidson's possession, in order to his acquiring.

Monboddo. A seat in a church cannot be conveyed separately from lands: It is annexed to lands. There is an example of this sort in a real servitude, which, by our law, cannot be separated from lands. It is impossible, by any disposition, to dissolve a right to a seat from a light to lands. The consequence is, that no proportion of the seat can be alienated beyond the proportion of lands. With respect to possession, it is promiscuous, and must continue so until a division.

Kaimes. I have no notion that a seat in a church is a real appendage of lands. The seats are appropriated to the parishioners. When a parish church is sufficient for the purpose of affording room to the parishioners, the decent way, in order to prevent confusion, is that it be divided; and, according to the supervenient circumstances of the parish, this division may be altered from day to day. If there is sufficient room left for the other inhabitants of the barony, Miss Alexander may continue to possess, but not otherwise.

President. A division of a church must be according to the valued rent. When once there is a legal division, that must remain the rule. The legal right is in the heritors, not in the inhabitants. But it is not necessary to determine that point. There has been no division of the church hitherto. When that comes it is time enough to determine. I think that seats in a church must go along with the lands. If there is not sufficient room in a division, then will it be the time to make the subject a commonty. Miss Alexander has not proved an exclusive right of possession.

Gardenston. There are two rules with respect to the possession of seats in church: 1. When there is a general division, it must be by the valued rent; because the burden of building and upholding lies on the valued rent. Were that rule not to be followed, there would be a necessity of dividing churches day after day. 2. It is equally certain that, until a general division take place, long possession, though not for 40 years, must be the rule.

Covington. This last opinion would be productive of endless disputes among the heritors. Supposing that a division had been actually obtained, and that Colonel St Clair feus out part of his ground, the feuar would be entitled to a share. There might be in every case a subdivision of the share of any one estate. Miss Alexander is entitled to a proportion. Until a particular division is obtained, she is entitled to keep possession; but this will avail her nothing, for tlie possession has been promiscuous.

On the 21st November, “The Lords found that the three seats are the property of the barony of Roslin; and that the parties, according to their respective rights, are entitled to hear divine service in the church of Lasswade, until a division shall be made.” Remitted to the Ordinary to proceed accordingly.

Act. R. M'Queen. Alt. J. M'Laurin. Reporter, Covington.