Scottish Court of Session Decisions

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

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^* “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.”