By arable lands in the statute 1663, are meant lands in a continued state of cultivation, tho' bearing occasionally crops of grass, and not constantly under plough. The condition of the lands, when the designation is required, not their ancient state, is to be considered.
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The presbytery of Dumfries, upon the application of John Ewart, minister of Troqueer, designed to him nine acres of kirk-lands, belonging to Grierson, for minister's grass, on the statute 1663, c. 21.
Grierson brought a reduction of the presbytery's decreet on this ground: That the lands designed fall within the exception of the act 1663:
“That, if there be no kirk-lands lying near the minister's manse, out of which the grass may be designed; or, otherwise, if the said kirk-lands be arable lands; in either of these cases, ordain the heritors to pay the minister, and his successor, yearly, L. 20 Scots for the said grass.”
The lands in question are arable lands; they were inclosed with dyke and ditch 20 years before the designation, and have been producing either crops of grain, or rye-grass and clover; consequently they cannot be designed.
Answered for the defender; By ‘arable lands,’ in this statute, are not to be understood all lands capable of being ploughed. The extent of this exception in the statute is explained by the mode of agriculture at the time. No lands, in those days, got the name of arable, but such as were kept constantly under the plough; and these were likewise called crofting lands; in contradistinction to which, were outfield grounds, ploughed at distant intervals of time. The object of the statute was only to exeem the crofting lands; and such is the interpretation the Court has put upon it; Steel contra Dalrymple, No 39. p. 5161.; Hodges contra Bryce, No 41. p. 5162. As the lands designed are not crofting, or arable lands, in this sense of the word, they do not fall within the exception of the statute.
These lands were entirely outfield 20 years ago, and at that time confessedly liable to have been designed. Though, by late improvements, they are brought into better cultivation, the minister ought not to be deprived of the right he then had to a designation of grass out of them.
The Court were of opinion, That, by arable lands, are to be understood lands in a continued state of cultivation, though bearing crops of grass, and not constantly under the plough. That the question, Whether lands fall within the exception of arable in the statute, is to be determined by their condition at the time when the designation is applied for, however recently such lands may have been improved.
The Court “sustained the reasons of reduction of the grass-grounds.”
Act. Rae.Alt. Crosbie,
Fol. Dic. v. 3. p. 252. Fac. Col. No 24. p. 39.
