Scottish Court of Session Decisions

The parish church of Aberdour was rebuilt about the year 1790. No judicial division of the area took place, but certain portions of it were possessed by the different heritors down to the year 1832, when an application was made to the Sheriff of Fife, on the part of the respondents, the Earl of Morton and others, heritors of the parish, to have the area regularly divided. The advocator Wemyss, who ranked sixth in order among the heritors in point of valuation, had, ever since the church was built, occupied a particular pew as his family seat. This pew, in the selection of family seats by the several heritors in the process of division, was chosen for the heritor who ranked third in order of valuation, and who consequently had the third choice. When it came to the turn of Wemyss to choose, he selected another pew, but under protest and objection to the division, and that he was entitled to retain the pew hitherto occupied by him. The Sheriff having confirmed the division, Wemyss brought the present advocation, in which, while he admitted that there had been no judicial division, and that there was no written evidence of any division by agreement among the heritors, he averred generally that when the church was completed, “the area thereof was divided among the different heritors of the parish,” and “a certain portion of the area of the church which was then apportioned to each of the heritors has since been possessed by them respectively, and their successors and their tenants;” and he pleaded,—

By virtue of his estate in the parish the advocator has a sufficient title to a share in the area of the church, and it is not pretended that the pew hitherto occupied by him exceeds the extent to which he is entitled. He has possessed that pew, however, for more than forty years, as the pew belonging to his property, and, as he alleges, on a division among the heritors immediately after the church was built, adhered to till 1832. It is not essentially necessary that the division of a church should be by judicial authority. The heritors may undoubtedly divide it by agreement among themselves, and although there be no writing, a prescriptive use of possession is sufficient proof of a division, and a sanction of the allotment enjoyed. ¹ The present is not the case of a party claiming right to a portion of the area of a church without any title, for the advocator's estate affords a sufficient title, the use being merely referred to as designating the particular portion allotted to him.

To this it was answered—

In all the cases in which the existing possession was maintained without direct evidence of a judicial division, there has either been sufficient ground to presume such division, or there has been a division by agreement among the heritors. Here, it is admitted, there was no judicial division, and it is not alleged that there was any division by agreement. The averment is in substance that there was a division by each heritor taking possession of a portion; but this is not a division which could afford any title of possession to any particular pew so as to exclude a regular judicial division, when demanded, according to legal rules. ²

The Lord Ordinary repelled the reasons of advocation, and remitted simpliciter with expenses, adding the subjoined note. ^*

_________________ Footnote _________________

¹ Cathcart (Greenock), Nov. 24, 1785 (M. 7928); Sinclair (Kinghorn), Feb. 6, 1761 (M. 7918); Smith (Dairy), June 22, 1826 (ante, IV. 738).

² Ersk. 2, 6, 11.

^* “ Note.—It is very clear to the Lord Ordinary, that in the present case there is no room for the presumption which was acted on in the cases quoted of Greenock, Kinghorn, and Sinclair; the last is a perfect contrast to this case. Here there is not only no positive allegation of any regular division, but it is quite clear, as matter of fact, that no such division ever did or could have taken place; and it is not even averred that there was any division by agreement of the parties. All the fact averred, and at last admitted, is, that because there was no division, any body took possession of any seat which he was allowed to occupy, and that the advocator has occupied the Heat in question for above forty years. Taking this to be the fact, the Lord Ordinary is of opinion that, where there is no previous special right of property averred, as in some of the cases cited, such mere occupancy, against the clear evidence that no division ever took place, can give no permanent right. As it is not at all averred, that the advocator or his predecessor could have had any right to a seat in the ratio assumed, according to his valuation, it is manifest that his possession not being founded on any decree of division, is a mere possession without title, on which no prescriptive right can ever be founded.

“The general rule is, that where a church has never been regularly divided, any heritor may require this to be done. Special rights of property, as in the case of North Leith, may be established, and when made out, must be regarded in the division. But the advocator pretends no such special rights, and alleges nothing but an avowed usurpation by tolerance, and it is very clear that if his plea were sustained, it would overset and prevent the division altogether.”

Wemyss reclaimed.