Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 CHURCH-YARD.

Cunninghams
v.
Alexander Cunningham

Date: 5 December 1778

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Alexander Cunningham, portioner of Fountainbridge, having buried his wife in a part of the church-yard of Currie, where his ancestors had been buried, proceeded to cover her grave with a grave-stone. This was opposed by his relations, who insisted that they had the property of the said burying-ground; and that although Mr Cunningham had laid his wife there, yet they would not suffer him to cover her grave with a stone, which was in effect withdrawing so much of the ground from being employed to the purpose of burying. In a process before the Sheriff; without determining the property, the Sheriff found this proceeding rather peevish, and, as the contest was not so much about the right to bury, as to erect a grave-stone, that there was no good reason why Mr Cunningham should be denied that pious satisfaction. But, in passing a bill of advocation, Lord Covington remitted the cause to the Sheriff with this instruction, (21st July 1778,) “ That he find, That the property of the church-yard, as of the church itself, belongs to the heritors, having property lands in the parish, as part and pertinent of their property lands, for the interment of those in their respective families, and other inhabitants upon their several properties; and those who neither are heritors nor reside within the parish, have no right to be buried, or to bury those of their families who did not reside in the parish, in the church or church-yard, without consent of the heritors; and, as it stands confessed that Mr Cunningham was no heritor, nor had his family residence within the parish at the time of his wife's death, several months ago,—the interment of his wife within the controverted part of the church-yard of Currie, without permission of the heritors, does not entitle him to erect a tomb-stone over his wife's grave, whereby so much of the common area of the church-yard would be withdrawn from the public or common use, and appropriated to the defender; and therefore, to find that he has no right to erect a tomb-stone without consent of the complainer and the other heritors; and, as no such consent is alleged, to prohibit him to do so.”

And to this interlocutor the Lords, upon advising bill and answers, adhered; (5th December 1788.)