Scottish Court of Session Decisions

In April 1860, a meeting of the heritors of the Abbey Parish of Paisley was held for the purpose, inter alia, of taking such measures as might be approved of for securing the church from damp and cold. A committee was appointed to inquire into the circumstances. The committee instructed Mr Salmon, architect, to inspect the church, and to report. Mr Salmon reported that it would be necessary, inter alia, to remove the soil from the outer face of the church walls, particularly from the west and north walls. At a subsequent meeting of heritors in 1861, Mr Salmon's report was considered, along with a minute of meeting of the general subscribers to the fund for improving and restoring the abbey, and the heritors agreed to contribute £600 in full of all demands that might be made upon

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them arising out of Mr Salmon's report, the other expenses of improvement to be borne by the subscribers. A committee was appointed to carry out this resolution. The committee then took steps to remove an accumulation of soil from the interior of the church; and having thus reduced the level of the floor of the church by some three or four feet, they then proceeded to remove the soil which had accumulated on the outside of the walls. A dispute then arose between the committee and Dr George Robertson and others, the latter parties complaining that their lairs in the churchyard, where several of their relatives were buried, were being improperly interfered with in the course of the operations by the committee; and in July 1861 Dr Robertson presented a petition in the Sheriff Court of Renfrew against the architect, contractor, and committee, craving interdict against the respondents interfering in any way with the petitioners’ lair, or excavating the adjoining lairs, and craving to have them ordained to restore the petitioners’ lair to the condition in which it was prior to the commencement, of the operations complained of. The defenders, in their answers, offered to remove the remains in the petitioners’ lair to a new lair, or to lower them where they then were, and to restore the grave-stones and dress up the graves.

Interim interdict was granted by the Sheriff, and a proof was allowed. After a long proof the Sheriff-Substitute (Campbell) found, inter alia, that the defenders had removed a considerable quantity of earth from the top of the pursuers' lair, and removed the top-stone and three of the corner stones, but that the remains of the pursuers' relatives were not disturbed by their operations, and that, though the lair was in an unsightly state, it was still capable of being adapted to the purposes of future interment; that the petitioners were, in the circumstances, entitled to apply for a remedy as they had done, but that such interdict and restorative conclusions could not in law supersede the right of the heritors in regulating the churchyard, consistent with the petitioners’ right of maintaining inviolate the remains of their relatives interred in their lair; recalled the interim interdict, but of new interdicted the defenders from further interfering with the petitioners’ lair, except as far as might be necessary for the proper dressing of the churchyard, and remitted to an architect to report on the best way of adjusting matters between the parties. The Sheriff (Fraser), on appeal, adhered. Mr Brown, the architect appointed by the Sheriff, gave in a report. Objections were stated for both parties, and thereafter the Sheriff — Substitute (Cowan) sustained certain of the objections stated by the defenders to the plan proposed in the report; approved of the plan submitted with the said note of objections; appointed the lair to be dressed as proposed in the plan, and remitted to Mr Brown to see that operation carried into effect; found the pursuers entitled to their expenses up to the date of lodging the defences, and the defenders to the expenses since that date, except such as were necessary for completing the operations on the lair. The Sheriff, on appeal, adhered.

The petitioners advocated.