Scottish Court of Session Decisions

This was a petition at the instance of the Rev. Mark Johnston Bryden, minister of the parish of Kirkcaldy, in the presbytery of Kirkcaldy and county of Fife, for authority to feu part of the glebe of Kirkcaldy, presented under the provisions of the Glebe Lands (Scotland) Act.

The petition, after setting forth the name and designation of The petitioner, narrated at length the 5th section of the Act, the interpretation clause (section 2), and the 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, and 18th sections, and stated generally the nature of the remaining sections. The petition then stated the stipend of the petitioner, and the extent and population of the parish; that the glebe consisted of two portions, one portion called the small glebe, in the immediate vicinity of the manse, and the other portion called the large glebe, and of above 4616 acres in extent, lying at some distance; that the whole of the said glebe was at present arable, except a small part occupied as a rope-work; and that the large glebe was well adapted for sites for workmen's houses, for which there was a great demand in that neighbourhood, there being large public works in the immediate vicinity. The petition further stated that the minimum yearly feu-duty at which it was proposed to feu this portion of the glebe was £20 per acre, but it was anticipated that a considerably higher rate could be obtained. The rents at present derived by the petitioner from the large glebe amounted to £38, 16s., and were the whole of it feued, which there was every reason to believe would be done forthwith, the feu-duty at the minimum rates proposed would amount to £92. 18s. 4d., and the petitioner and his successors in office would thereby be benefited to the extent of £83, 16s. 4d. per annum, subject to the interest on the expenses of the present application, and of making the necessary streets, roads, passages, sewers, and drains to and through the glebe, which, however, would be ultimately paid off by the casualties of superiority.

The petition prayed for intimation and service in terms of the Act, and craved the Court:—“(1) To authorise and empower the petitioner, and his successors in office, at the sight of the heritors, as defined by the said Act, and of the presbytery, subject to the provisions of the foresaid Act, to grant and disposed of the portion second above described, of the said glebe of Kirkcaldy, or any part or parts thereof, in feu-farm, fee, and heritage for the highest feu-duties that can be got for the same, not being less than the minimum feu-duty to be fixed by your Lordships, and that either by public auction or private contract, to fue the whole or any part or parts of the said portion of the glebe of Kirkcaldy, and that at all time or times and in such portions as he or they, with the consent

Page: 191↓

of the said heritors and the presbytery, may from time to time, or at any time, think fit; (2) To fix and determine, by order or interlocutor, the minimum rate or rates of feu-duty at which the said portion of the glebe may be feued; (3) To approve by interlocutor of the form or forms of feu- charter to be lodged in process by the petitioner, as the same may be altered or adjusted under your Lordships’ authority, as the form or forms to be made use of from time to time as such feus respectively shall be granted; (4) To authorize the petitioner and his successors in office, with the consent of the heritors and the presbytery, to grant the said feus in the form or forms so approved of from time to time as he and they shall think proper, subject to any conditions or stipulations which your Lordships may deem proper; and (5) To decern the amount of the costs, charges, and expenses incurred by the petitioner in the present application and incidental thereto, and of making and constructing streets, roads, passages, sewers, and drains, in or through the said portion of the glebe, as the same shall be ascertained in the course of the present petition, a permanent burden upon the said glebe, all in terms of the before-recited Act; or to do further or otherwise in the premises us to your Lordships shall seem just.”

Along with the petition was lodged a draft form of feu-disposition.

The Lord Ordinary ( Barcaple) remitted to Mr Charles Macgibbon, builder, to inquire into the facts stated in the petition, and to report his opinion thereon, and as to the minimum rate at which, if the petition was granted, the glebe should be feued or leased for building, and as to any conditions or restrictions subject to which the prayer of the petition should be granted.

Mr Macgibbon reported.

The Lord Ordinary thereupon reported the case to the Teind Court.

The Court—this being the first petition under the Glebe Act 1866—remitted to Mr J. G. Murray, W.S., to examine the proceedings, with the proposed feu-charter, and to frame such a form of feu-charter or feu-contract as, in his opinion, would be most suitable and convenient to this and similar cases.

Mr Murray reported, with a form of feu-charter, in terms of this remit.

The petition was again moved in before the Court, and the following interlocutor was pronounced:—“Having resumed consideration of the petition, with the report of the Lord Ordinary and also the report of Mr T. G. Murray, W.S.. Approve of the form of feu-charter, as now amended and finally adjusted, No. of process now authenticated as relative hereto, and appoint it to be the form of feu-charter to be used from time to time mutatis mutandis in feuing the portion of the glebe of Kirkcaldy after-mentioned; prohibit the clerk from lending the same, but authorize him to give to all parties interested certified copies thereof. Authorize and empower the petitioner and his successors in office, ministers of the said parish, subject to the provisions of the Glebe Land (Scotland) Act 1866, to dispone that portion of the said glebe described in the petition as the large glebe of Kirkcaldy, or any part or parts thereof, in feu for the highest feu-duty or feu-duties that can be obtained for the same, not being less than the rate of £20 per acre, and that in such portions and at such times as he and they may find expedient, to be holden by the disponees and feuars thereof of and under the minister of the parish for the time allenarly as lawful superior; and quoad ultra supersede in the meantime further consideration of the petition: Allow an account of the expenses incurred by the petitioner to be lodged, and remit the same to the auditor to tax and to report.”