A minister is entitled to a grass-glebe, though his predecessors have been in use to accept of a sum of money in lieu of it, even for twice the period of the longprescription.
Click here to view a pdf copy of this documet : PDF Copy
In the year 1718, the minister of Newburn applied to the presbytery for a designation of a grass-glebe; and a portion of ground was set aside for that purpose. The incumbent did not, however, carry the decree of presbytery into execution, but accepted the sum of £20. Scots in lieu of grass-glebe, which from that time was paid by the heritors, according to their respective valuations.
The Reverend Thomas Lawrie, minister of the parish, in 1801, made an application to the presbytery for a new designation of grass; and a part of a field called Quarrybraes, with a portion of link ground at some distance, was designed. These grounds were the property of Mrs. Ann Halket Craigie of Lawhill, who presented a bill of suspension of the decree of the presbytery, in which she contended, that the minister was not entitled to a grass-glebe at all, and, at any rate, that the portion of the Quarrybraes was not liable to designation.
The Lord Ordinary suspended the letters, so far as related to the ground called Quarrybraes; but with respect to the ground in the links, found the letters orderly proceeded.
Against which judgment, so far as is it found the letters orderly proceeded, Mrs. Halket Craigie presented a petition to the Court; and Pleaded: The right of a minister to a grass-glebe is regulated by the act 1663, C. 21. which gives an alternative of actual possession of grass, or of £20. Scots in lieu of it. After the minister of a parish has once made his elections of one alternative, neither he nor his successors can change it by having recourse to the other, and beginning de novo as if no such election had been made. Although a minister cannot alienate any fundamental part of his right so as to injure his successors, yet, when the law admits the exercise of a right in two different ways, the minister must be bound by his predecessor's option in regard to it, as much as he is by his option with regard to the situation of the manse or arable glebe, more especially when the interest of third parties is affected by the alteration. The minister of Newburn has enjoyed his right to grass in one way for twice the period of the long prescription, and his successor is therefore precluded from having recourse to the other; Min. of Mertoun, January 19th, 1780, (not reported.)
Answered: The provision in the act 1663, with respect to the sum of £20. Scots, is not alternative, but subsidiary. It was the intention of the Legislature, that ministers should have grass, except in two cases specially mentioned in the statute, in which they were to receive a sum of money in lieu of it. It is a mistake, therefore, to say, that either the heritors or the minister have the liberty of making an election, or choosing an alternative, because the provision of £20. Scots is merely subsidiary, and can only take place when there are no lands in the parish of the description specified in the statute. The minister of Newburn did not receive the £20. in consequence of a decree of presbytery, but in direct opposition to the designation in 1718; and no minister can injure the right of his successors, by voluntarily abandoning the right vested in him by the statute, and sanctioned by the decree of a competent court; Minister of Falkland against Johnston, February 8th, 1793, No. 37. p. 5155.
The Court adhered.
It was observed on the Bench, That the case of Mertoun was not sufficiently attended to when it was decided; that the decision was pronounced by refusing a petition against the Lord Ordinary's interlocutor; and that the minister prematurely acquiesced.
Lord Ordinary, Dunsinnan.For Suspender, Douglas.Agent, Geo. Cumin, W. S.Alt. Robertson. R. Dundas, W. S.Clerk, Pringle.
Fac. Coll. No. 143. p. 323.
