Scottish Court of Session Decisions

Subject_1 KIRK.

John Ure, and other Heritors within the Royalty of the Burgh of Forfar,
v.
Patrick Carnegy, and Others, Heritors of the Landward District of the Parish of Forfar

Date: 16 May 1793
Case No. No 18.

The area of a new church in a parish where there is both a royal burgh and a landward district, falls to be divided between them in proportion to their population.

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The parish of Forfar is composed partly of the royal burgh of that name, and partly of a landward district. The number of examinable persons within the burgh, and lands holding of it, amounts to 2965; the country district contains 765.

The old parish church having become ruinous, a new one was built, and an action was brought by some of the burgh heritors, in order to ascertain the manner in which its area should be divided.

The pursuers contended, that the church should be divided between the burgh and the landward district, in proportion to their respective population. The country heritors, on the other hand, insisted, that the area should be divided equally between the burgh and themselves, and that their half should be subdivided in proportion to their valuation.

It was understood, that the expense of building the church was to be defrayed according to the extent of area which each party should ultimately obtain.

The leading arguments on both sides were the same in substance with those stated in the report of the case of Crieff, 20th November 1781, No 15. p. 7924. and need not be here repeated.

The defenders likewise founded on a decree-arbitral in 1759, relative to the building a schoolmaster's house, and repairing the church, whereby it was declared, that in future the expense necessary for these purposes should be equally defrayed by the burgh and landward district; and it was contended, that this afforded evidence of the practice in bearing public burdens, and that therefore the benefit arising from them should be divided in the same proportions.

The Lord Ordinary reported the cause on informations.

One of the Judges, influenced by the practice of the parish, in paying parochial assessments in other cases, thought the area should be divided equally. The rest of the Court, however, were clear, that where a considerable town makes part of a parish, from the very nature of the thing, the division must proceed on the ratio of population. They considered this point as fixed by the decision in the case of Crieff above-mentioned, and in those of Campbletown, No 13. p. 7921, and St Andrew's, 25th May 1791. See Appendix.

It was accordingly found, “That the area of the church in question must be divided betwixt the heritors in the landward part of the parish and the burgh of Forfar, in a proportion effeiring to the number of the parishioners in each, and that the expense of the building must be defrayed by the burgh of Forfar, and the landward part of the parish, in proportion to their respective shares of the area.”

Lord Ordinary, Henderland. Act. M. Ross, Jo. Millar, jun. Alt. Craigie. Fol. Dic. v. 3. p. 371. Fac. Col. No 52. p. 107.