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SCOTTISH_Shaw_Court_of_Session

Page: 978↓

Lockerby

v.

Stirling No. 299.

Court of Session

2d Division

June 25 1835

Ld. Jeffrey.

The Rev. Thomas Lockerby, Pursuer.— D. F. Hope— Penney. Archibald Stirling of Keir, Defender.— Rutherfurd— G. Dundas.

Subject_Church—Manse and Glebe—Acquiescence—Process—Proof.—

1. A minister who was elected by the heritors and elders of a parish, but, in consequence of a litigation ensuing, was not inducted for several years thereafter—held to have no right to the rents and profits of the manse and glebe prior to his induction. 2. An excambion of a portion of the glebe with certain rights of servitude, for another piece of land, having been made with an adjoining heritor, and arrangements as to roads, &c. having been thereupon adopted and acted upon;—circumstances in which a succeeding incumbent was held barred from demanding an alteration of those arrangements. 3. An action containing conclusions for making up an alleged deficiency in a glebe, incompetent against a single heritor, without calling the others. 4. In an acknowledgment of debt (forming the sole evidence thereof), contained in entries in a party's books, a statement appearing in gremio of the entries, as to the application of a balance, must be taken as an intrinsic quality in the admission.

Prior to the year 1793, the ministers of the parish of Cadder were in possession of a glebe of about four acres, one rood and twenty-six falls, with a right of pasturage over the muir of Kirkton and over a piece of meadow-ground in the neighbourhood called the Bog. They had the right of taking peats from the Kirkton Moss, with free ish and entry to the servitude lands. In 1776, the line of the Forth and Clyde Canal was carried through the minister's garden and glebe The value of the ground occupied by the canal was fixed at £28, 19s. 7d., and the damages for injury done to the glebe at £16, making in all £48, 19s. 7d. In reference to this money, which was paid by the Canal Company to the minister, the following entries appeared in the books of the Cadder estate, the proprietor of which was the late Mr Stirling of Keir, father of the defender, and principal heritor of the parish.

“1777, August 12th.

“To cash from the Canal Company, by the hands of the Rev. Mr Alexander Dunn, being the price of the land I supplied to the glebe and, minister's garden, in place of what was taken away by the canal, £28, 19s. 7d.

“To ditto received from the Canal Company, by the hands of the said Alexander Dunn, and for which I am to be accountable, viz. on account of damage done the glebe and garden by the canal, £16, and for trees on glebe and garden cut down, four, in all £20.”

The £20 here mentioned continued to lie in the hands of Mr Stirling, and subsequently of his son, who were accountable to the minister of the parish for the interest.

In 1793, a contract of excambion was entered into between the late Mr Stirling, whose estate adjoined the glebe, on the one hand, and the minister of Cadder, with concurrence of the Presbytery of Glasgow, on the other, by which a portion of ground belonging to Mr Stirling, on the east side of the Canal, and adjoining the portion of the glebe there situated, was exchanged for that part of the glebe situated on the west side, with the servitudes enjoyed by the minister, under reservation to the latter of the right of casting a certain quantity of peats in the Kirkton Moss. On the part of the heritors and presbytery, valuators and surveyors were appointed to superintend the excambion. The presbytery, proceeding upon the reports of these persons, found “that 4 acres, 3 roods, 17 1 2 falls, of the grounds belonging to James Stirling, Esq. of Keir, adjacent to and on the north and south of the present glebe, east from the canal, are equivalent to 1 acre, 3 roods, and 32 1 2 falls, of the said glebe, proposed to be excambed therefor, including the site of the old manse and garden, being at the rate of two and half acres of said ground for each of the above acres of said glebe, as mentioned in said reports. And further, find that four acres of said ground are an equivalent for the right of pasturage which the minister of Cadder had in the Kirkton-Common of Cadder, extending the said whole grounds now excambed as aforesaid to 8 acres, 3 roods, and 17 1 2 falls, and marked off by said land-measurer as above mentioned. Therefore the presbytery did, and hereby do annex the foresaid 4 acres, 3 roods, 17 1 2 falls of ground to the said glebe, and decern and declare the same to make part of the arable land thereof, including the; half acre for the site of the new manse, offices, and garden, and shall be enjoyed and possessed by Mr Archibald Provan, minister of Cadder, and his successors in office, as part of the arable glebe of Cadder, in all time coming; and that in lieu of the foresaid parts of said glebe, which are hereby excambed therefor. And further, do hereby annex the foresaid four acres to the said glebe, and decern and declare the same to make part thereof, to be enjoyed by the said Mr Archibald Provan and his foresaids in all time coming; and that in lieu of the foresaid servitude of pasturage, which is hereby relinquished and given up. But in respect the valuators in their report have said that six acres are no more than sufficient to graze a horse and two cows, the presbytery reserve to the minister of Cadder and his foresaids any right which they may have to further pasturage, agreeable to said report; also reserving to the minister the right of casting four dargues of peats in the nearest moss belonging to the Kirkton, yearly, with free ish and entry to the whole premises, and to the Gateside well, as used and wont. And further, the presbytery hereby decern and declare the foresaid parts of the old glebe, including the site of the old manse and garden, and also the foresaid right of servitude of pasturage in the Kirkton-Common of Cadder, to pertain and belong to the said James Stirling, Esq. and his heirs and successors, and to be enjoyed, and possessed by them in all time coming as their own property; and that in lieu of the foresaid grounds now given by him in excambion for the foresaid parts of said glebe and servitude above mentioned.”

In 1796, on the application of the Rev. Mr Provan, the pursuer's predecessor, a perambulation of the glebe took place at the sight of a committee of the presbytery, and march stones were set, according to which the minister possessed during the whole period of his incumbency, it being declared, that the whole extent of land so surveyed, belonging to the minister, was 11 acres and 12 3 4 falls. In 1811, the Rev. Mr Lockerby, the pursuer, was elected assistant and successor by the heritors and elders, the patronage having been redeemed under the act 1690, but his election was disputed, and the induction and settlement did not take place till 1818, four years after the death of Mr Provan, which happened in 1814.

In 1823, an old road leading to the church was shut up by Mr Stirling, with consent of the other heritors, and a new road made in lieu of it, which has been used by the parishioners since that time.

In these circumstances, Mr Lockerby—alleging that the ground now possessed by him was less than the extent declared in the survey of 1796—that a piece of ground called the Ward, now included in his boundaries, was not part of the original excambion, but had subsequently been given in lieu of the servitude over the Bog; and that the late Mr Stirling had drawn the rent of the manse and glebe during the dependence of the dispute as to the settlement, without accounting to him therefor—raised this action against the present Mr Stirling, concluding, inter alia, to have it found and declared that the above-mentioned excambion had never been properly implemented; that the glebe of Cadder was deficient in extent; that the grass glebe must be increased to the extent of two acres, in terms of the reservation in favour of the minister, contained in the decree of presbytery above quoted; to have Stirling ordained to make over a sufficient quantity of his adjacent land to make up the deficiency; and to cede possession of the “Bog,” taking back the piece of land called the “Ward;” and further to account to him for the rents of the manse and glebe from 1814 till 1818; to make payment to him of the interest of the whole sum obtained from the Canal Company, or such part of it as was vested in the hands of the late Mr Stirling, from the date of Mr Provan's death till now; and that he should also be ordained to make a road to the manse on his own ground, and to re-open the road to the parish-church, and likewise the road to the peat-moss.

Mr Stirling maintained, in defence, inter alia, 1. that, in so far as regarded the conclusions for making up the alleged deficiency in the glebe under the reservation in the presbytery's deliverance on the excambion, the action was incompetently directed against the defender as an individual heritor, without calling the other heritors for their interest; 2. that the pursuer was not now entitled, on the pretence of a deficiency in his right, to open up and disturb a transaction which was carried through by the proper parties, under the competent authority, and had been acquiesced in for nearly 40 years previous to the raising of the action; 3. that the pursuer's claim on that portion of the money obtained from the Canal Company, which is mentioned in the defender's books as having been paid to his father as the price of a piece of ground, was barred by the negative prescription; 4. that the pursuer had no right to any of the rents or emoluments of the benefice previous to his settlement; and 5. that he was not entitled to insist on having an old church road re-opened, after it had been shut up by competent authority, and to the general advantage of the parish; and that his demand for a new road to the manse and to the peat-moss was barred by the acquiescence of his predecessor and himself.

The Lord Ordinary pronounced the following interlocutor, with the note subjoined: ^*—“The Lord Ordinary having resumed consideration of the debate, with the closed record, writings produced, and whole process, finds, 1st, That the conclusion of the summons for having the alleged deficiency in the legal extent of the pursuer's pasturage, or grass glebe, made up to him, can only be enforced against the heritors of the parish generally, and is incompetent against the present defender as an individual; and therefore sustains the defences against this conclusion, and decerns: Finds, 2d, That the old road to the church having been shut up many years ago, by a regular meeting of heritors, and a new road furnished in its place, with which no one heritor or parishioner has since expressed any dissatisfaction, it is not competent for the pursuer, after so long an acquiescence, to insist upon it being again opened; and therefore sustains the defences against this conclusion of the libel also, and decerns: Finds, 3d, That upon a just construction of the transactions in 1793, and 1796, as explained by the possession and continued acquiescence of all parties from those dates, up to the raising of this action, it must be held that the definite extent of ground then agreed to be given in excambion by the predecessor of the defender, was the whole that could be claimed, in consequence of those transactions by the then incumbent, or his successors in office, and that the pursuer has therefore no right now

_________________ Footnote _________________

^* “The grounds of this interlocutor are sufficiently expressed in its terms; the action being, in truth, a congeries of different actions, could not be disposed of without specific findings; and these, to be intelligible, required some statement of the grounds on which they proceeded. But for this consideration of the complex nature of the summons, the Lord Ordinary, when rejecting almost all the claims of the pursuer, would have been inclined to dismiss the action generally; reserving to the pursuer to maintain in a separate process, if so advised, the onlyconclusion in which he thought him entitled to insist. But the greater part of the conclusions being truly quite independent of each other, it seemed as reasonable to allow this particular one to be discussed alone, as along with others, with the merits of which it had no connexion—and by the result of which it could not, at any rate, have been affected.”

to insist for an additional portion of ground as a road to his manse,—so as to enable him to throw that which was formed at the time through part of the ground so given in excambion, and has been used without complaint for a period of thirty-nine years, into cultivation; and therefore, sustains the defences against this conclusion of the libel also, and decerns: Finds, 4th, That no evidence is offered, or alleged to exist, of the receipt of the sum of £44, 19s. 7d. (or rather £48, 19s. 7d.) by the defender's predecessor in 1777, as the value of land taken from, or damage done to the old glebe of the parish of Cadder, by the proprietors of the Forth and Clyde Canal, except what is contained in the entries in the books of the defender's said predecessor, of which certified extracts are produced; and, as no interest has ever been paid upon more than £20 of this mm, finds that the obligation to pay or account for the balance has been long ago extinguished by the negative prescription; and further, that the statement as to the application made of this balance, at the time which appears in gremio of the said entries, must, at all events, be taken as an intrinsic quality in any acknowledgment they may be thought to contain, and amounts in substance to a statement, that the defender's predecessor never was, in any respect, a debtor for the said balance to the minister of the parish, but received it from the Canal Company, as the price of a pendicle of land, with which they compensated (or intended to compensate) the said minister for what they had taken from his glebe; and therefore sustains the defences against this conclusion also of the libel, and decerns: Finds, 5th, That the pursuer's right to the manse and glebe, or any other appurtenance to the benefice, did not open to him till the period of his induction and settlement in the parish, in the year 1818, and that he has, consequently, no right to require the defender (even if he were clearly the proper party) to account to him for the profits or annual value of those subjects, from the date of his original election in 1811, the validity of which was the subject of litigation, in the civil and ecclesiastical courts, up to the said year 1818, when he is admitted to have entered upon the actual possession: Finds, 6th, That the check survey, and actual marking off of the glebe, by the setting of regular march-stones, which took place in 1796, on the application of the minister himself, and at the sight of a committee of the presbytery, though there is no evidence produced of its having been formally approved of by that body, must, after the lapse of so long a period of acquiescence, be held correct and conclusive, and the small difference which exists between the extent of the glebe, according to that survey, and according to the original report of the same land measurers in 1793, must be imputed to mere inaccuracy in that original measurement: Finds, 7th, That the allegation in the summons, that the pendicle of ground called the ‘Ward,’ adjoining to the south part of the old glebe, was not included in the excambion, or in either of the mensurations in 1793 and 1796, and the relative conclusion, that the defender should now resume the property of that pendicle, are excluded by the terms of the original minutes, by which the excambion is admitted to have been finally accomplished, when taken along with the other allegations and admissions of the pursuer in this process;—inasmuch as the pursuer has averred, that no part Whatever of the ground given in excambion in 1793 was on the south, but wholly on the north side of the old glebe, and has also distinctly admitted at the debate, that the only ground to the south which he now possesses (and which has been attached to the glebe ever since 1798, or 1799), is the said pendicle called the Ward; whereas the minutes of 1793 bear, that the valuators, appointed by the presbytery and heritors, ‘having perambulated the grounds to be given off the old glebe, and the grounds to be received for them, as shown to them,’ gave in their report, which is there engrossed; and sets forth, that, ‘having been called upon by the presbytery to perambulate the old glebe, and the other grounds adjoining to it, ‘north and south,’ are of opinion, that one acre of the glebe is equal to two and a half acres of the other grounds, on both sides of the old glebe shown to us;’ and, finally, the presbytery in their decree, ‘find that 4 acres, 3 roods, and 17 1 2 falls of the ground belonging to the defender, adjacent to, and to the north and south of the present glebe, are equal, &c.; and, therefore, do annex the foresaid 4 acres, 3 roods, and 17 falls,’ &c.; and therefore, and in respect that the pursuer is not now seeking to reduce, but to enforce, and to give effect to the excambion effected by the said minutes, sustains the defences as to the conclusion for having the said pendicle called the Ward found to be no part of the glebe, and not to have been included in this excambion; and decerns: 8th, In respect of what is set forth in the immediately preceding finding, and also in respect that there is no specific or relevant allegation as to the date, form, or circumstances of the second alleged excambion, by which the pendicle called ‘the Bog’ is said to have been privately exchanged for the other pendicle called the ‘Ward;’ and in respect of what is admitted as to the defender's uninterrupted possession of the said pendicles called the ‘Bog,’ for thirty-five or thirty-six years previous to the date of this action, as to its being situated entirely on the west side of the canal, and as to its never having been used, at any time, by the minister, except for the purpose of pasturage, along with other persons, finds that it must be held to have been included in the excambion of 1793, as part and parcel of the Kirkton-Muir, for the right of pasturage, on which he then received an equivalent; and, therefore, sustains the defences against the pursuer's claim to be restored to the right of pasturing on the said pendicle called the Bog, and decerns: Finds, 9th, That, on the footing of the preceding findings, the pursuer's predecessor must now be held to have received and accepted the space of ground meted and marked out for him in 1796, as in full of his glebe, and his former right of pasturage on the east side of the canal, and to have been then put in possession thereof; and, in respect that there is no allegation on the record, that the defender has since that time in any way interfered with, or encroached on such possession; and that the alleged deficiency between the extent then reported (which appears from the last survey, obtained on the pursuer's application in 1832, to be no more than 2 roods and 29 falls), is much more likely to have arisen from some encroachment, or incorrect statement of marches, with the Canal Company, by whose unenclosed property the glebe is exclusively bounded on the west, with whom it is admitted that a question as to marches was agitated, and settled only in 1824, and who have not been made parties to the present action: Finds that the pursuer has condescended on no relevant grounds for requiring the defender to make up this alleged deficiency; and, therefore, sustains the defences against this conclusion also of the summons, and decerns; Finds, 10th, That the pursuer has a right of casting peats on the nearest part of the Kirkton moss, and that he has averred relevantly that his road to the said moss has been unwarrantably shut up by the defender; and, in respect that this averment is denied, finds that the pursuer is entitled to establish it by proof; and, before further answer, as to this conclusion of the libel, appoints the cause to be enrolled, that parties may be heard as to the propriety of remitting to the jury-roll; in the mean time, allows the decree of absolvitor, pronounced above, to be extracted ad interim: Finds the defender entitled to the expenses incurred by him as to the conclusions to which such decreet of absolvitor applies.”

The pursuer having reclaimed,

The Court adhered.

Solicitors: R. Deuchar, S.S.C.— Dundas and Wilson, W.S.—Agents.

SS 13 SS 978 1835