Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Todd v. Sandison and Others [1868] ScotLR 5_496 (15 May 1868)
URL: http://www.bailii.org/scot/cases/ScotCS/1868/05SLR0496.html
Cite as: [1868] ScotLR 5_496, [1868] SLR 5_496
[New search] [Printable PDF version] [Help]
SCOTTISH_SLR_Court_of_Session
Page: 496↓
Court of Session Inner House Second Division.
v.
Facts:
Circumstances in which held, on advising a proof, that certain lands were situate within a parish, and therefore liable to contribute assessment for the relief of the poor laid on lands and heritages, and that certain other lands were not so situate and therefore were not liable.
This was an action brought by Archibald Todd, Inspector of Poor of the parish of Eyemouth, against Magnus Sandison of Highlaws, George Webster of Hallydown, Robert Cosens of Bogangreen, and Mr John Johnston, Inspector of Poor of the parish of Coldingham; and the object of the action was to have it declared that certain lands belonging to the defenders were situated in the parish of Eyemouth, and liable to assessment in that parish for relief of the poor.
After various procedure, and a proof taken by commission of the averments of parties, the Lord Ordinary ( Jerviswoode) found (1) with reference to the estate of Highlaws, that three fields forming part of that estate lay within the parish of Eyemouth, but that, quoad ultra, the defender Sandison was entitled to absolvitor; (2) with reference to the estate of Hallydown, that three fields known as Bennesty, Longbron, and Short Crimmels lay within the parish of Eyemouth, but that, quoad ultra, the defender Webster was entitled to absolvitor; (3) with reference to the estate of Bogangreen, that no part of that estate lay within the said parish, and therefore that the defender Cosens was entitled to be entirely assoilzied.
His Lordship added the following note:—
“The questions, which have been fully discussed before the Lord Ordinary, and on which he has been called on to pronounce judgment, are, in some respects, of a peculiar character, whether they be regarded in relation to the matters of fact, or to the legal principles which bear upon their determination.
One point of leading importance, on which the Lord Ordinary feels it due to the parties to endeavour to explain his views here, is that which arises under the second plea in law for the pursuer, which is rested on the effect due to the Act of Parliament there and in the record mentioned.
If, as has been maintained on the part of the pursuer, the extent of the parish be so distinctly fixed and ascertained under the provisions of that Act that any competent authority having the Statute to administer can, from its own terms, arrive at a safe conclusion as to the subjects which it embraces and to which it applies, the contention of the pursuer on this point might at once prevail.
But if it be true, as the Lord Ordinary holds it to be, that the Act of Parliament is open to, and requires construction by extraneous inquiry in relation to the terms in which the subjects which are to form the new parish are therein described, it becomes all-important to ascertain how the provisions
Page: 497↓
of the Statute have been understood and acted on from the date of their enactment downwards to the date of the present contention. As bearing on this matter, a mass of evidence has been referred to by the respective parties; and the conclusion which the Lord Ordinary has drawn from the best consideration he has been able to bestow upon the whole of it, is, that, from the earliest date to which it has relation, the Statute has never been held as having application to lands or subjects other than those which truly and fully fell within the description of them as given in the Act of Parliament itself, and so has not been held applicable to lands which, although they might be bounded on all sides by lands which were properly portions of the newly disjoined parish, were truly no part of the specific territory of which it was constituted.
The leading feature in the evidence, which more than any other has here had weight with the Lord Ordinary, and has aided him in putting the construction on the Statute of Erection to which he has now given effect, is that which shows that, in matters properly and purely parochial, the portions of the lands in question, as possessed by the defenders, have been continuously treated as in the parish of Coldingham.
The evidence which established that in relation to county rates and assessments the same mode of treating the subjects has been adopted, and apparently so without cavil or question, throughout a long period of time, tends directly to support the case of the defenders, although it may not be entitled to the same amount of consideration here as that to which the Lord Ordinary has first adverted.
But, taking the evidence as a whole, the Lord Ordinary cannot reconcile the proved state of the facts with the construction which the pursuer would give to the Statute; while that for which the defenders, on the other hand, contend, accords with and renders intelligible the proceedings of those affected by its provisions since the time of their enactment down to the date of the present dispute.
In the view which the Lord Ordinary has taken of the case he has not felt himself called upon to deally specially with the apparently vexed question as to the true extent of a ‘husbandland.’ But while his impression is that this varies in different districts of Scotland, it was probably affected everywhere by the circumstance whether the particular lands were ‘outfield’ or ‘infield.’ He thinks it due to the pursuer to say that that party has brought forward evidence of great cogency here to prove that in the county of Berwick a husbandland extended to twenty-six acres or thereby, and that there is some direct evidence tending to show that in the district of Eyemouth in particular this was so.”
The pursuer reclaimed.
Gifford and Duncan for him.
Cook and Balfour for Sandison.
John Marshall and Lee for other defenders.
At advising—
It is admitted on all hands that the said parish was erected out of the parish of Coldingham by a Statute passed in 1633, by which there was ratified a letter and gift of dissolution and erection granted by King James I., dated 27th January 1618.
The true construction of this Statute has formed the main subject of dispute between the parties, and in truth affords the key to the solution of most of the details involved in the case.
According to the pursuer's contention, the terms of the Statute are so distinct, as well as imperative, as at once to dispense with and to exclude any explanation to be afforded by subsequent usage or practice; whilst the defenders maintain that it is impossible with any accuracy to ascertain the limits of the parish which the Statute detached from the old parish of Coldingham without referring to a considerable mass of evidence, documentary and oral, which has been brought to bear upon the question.
The inductive cause of separating the two parishes was plainly the convenience of the indwellers and inhabitants of the town of Eyemouth, in respect of the far distance of the said town and of the kirk built therein from the parish kirk of Coldingham, of which it had hitherto been a pendicle.
Accordingly, the general description of the subjects erected are—“All and haill the town of Eyemouth, with all lands, aikers, tenements, and cottages thereof, together with the mill of the same; together lykewise with all other lands, parts, and pendicles whatsoever of the said town of Eyemouth within the bounds, jurisdiction, and territory thereof.” A special subject, apparently not immediately connected with the town, is added as follows—“With the lands now callit Beinrighouse lying within the territory of the said town of Eyemouth.”
This last special subject is referred to as being within the territory, though apparently forming no part of the proper lands of the town. And this observation has led to a difficult question as to the extent or rather the meaning of the territory and jurisdiction of the town of Eyemouth. The most plausible answer to this question seems to be that before the Reformation, and the annexation to the Crown of the church lands of the Priory of Coldingham, there had been a subsidiary or subordinate jurisdiction exercised within the town of Eyemouth and its neighbourhood by an official appointed by the prior and his convent. The extent of that territory we have no distinct means of ascertaining. But, even if we had, it would afford no safe guide for ascertaining the boundaries or extent of the new parish; since, although the new parish appears to have all been within the ancient territory and jurisdiction, it does not appear that the convenience of the inhabitants required that the new parish should have embraced the whole of that territory.
The contention of the defenders, that the new parish embraced only such parts of the ancient territory as properly were parts or pendicles of the town, seems to me to be well founded. And especially the plea maintained by the defender Sandison, that his lands of Hielaws, which were no part of the proper lands of the town, cannot be held from their mere local situation to have been embraced within the parish, appears not only from the terms of the Statute itself, but from the understanding and usage of centuries to be well founded.
Subsequently to the Reformation the temporality of the Priory of Coldingham. after being annexed to the Crown in 1587, appears to have been divided
Page: 498↓
It is remarkable that the grant in favour of Home of Wedderburn contains a number of husbandlands, which appear to have been larger portions of land. These appear to have been sub-divided into a great number of minute portions, which afterwards figured as runrig or rundale property. It is probable that in early times the inhabitants of Eyemouth, the dependents of the priory, each possessed in separate property a ridge or ridges, a number of which went to make up a husbandland. This seems a more natural way of accounting for the minute subdivision of this property than the hypothesis that this intermixture of interest was devised as affording a greater security against a common enemy. The view thus suggested as to the true extent of the new parish is strongly confirmed by the fact that within the grant of Home of Wedderburn there was contained a borough of barony created in 1597, previous to the erection of the parish of Eyemouth. I think the boundaries of the burgh must have coincided with those of the new parish.
In process of time these minute portions of lands belonging to the inhabitants of the burgh had been alienated in detail by the inhabitants of Eyemouth in favour of the neighbouring landholders. And at last the whole Eyemouth lands came into the hands of half-a-dozen proprietors. But as these proprietors must have acquired the several plots of the Eyemouth inhabitants from time to time as occasion offered, the district which at an early period had constituted the separate holding of a great number of cottars, came to be converted into runrig estate held by a few great proprietors, giving occasion to an action of division in the year 1763.
This peculiarity of tenure has afforded, perhaps, the surest criterion for ascertaining the extent of the new parish. Prima facie, the runrig lands, composing husbandlands, and so conveyed in the charter of 1597, were the lands within the territory of Eyemonth held anciently in small portions by its inhabitants.
Lord Home's grant, on the other hand, contains a variety of lands described under special names, which do not appear to have been subdivided like the Eyemouth husbandlands, but in general to have been of considerable extent. Within Lord Home's grant are contained the lands of Hielaws, Mawisbank, and Mawisacre, belonging to the defender Sandison, and Haliden or Hallidoun, belonging to the defender Kemp, now represented by Webster.
I. Under the first conclusion of his summons, the pursuer alleges that not only the portions of the runrig lands allotted in 1763 to the predecessor of the defender Sandison, but also his lands of Hielaws, Mawisbank, and Mawisacre, which were not embraced in the division of 1763, are comprehended within the parish of Eyemouth. But it is clear that these lands were not contained within the Eyemouth barony, but were erected with the Coldingham properties in favour of the Earl of Home. That they were locally surrounded by the runrig lands seems to be the only plausible argument brought forward by the pursuer in support of his contention that they must have been embraced within the new parish. I cannot say that I have been moved by this argument. And if there were any doubt on the question, that doubt is removed by the proof led by Mr Sandison, from which it is demonstrated that his estate, consisting of Hielands on the one hand, and the particular fields allotted to his predecessor in 1762 on the other, have been assessed in the two parishes of Coldingham and Eyemouth for parochial and public burdens ever since the date of the division.
An alternative conclusion of the pursuer's summons against this defender, is intended to curtail the extent of his lands in the Coldingham parish to a comparatively small extent. In support of this conclusion, the arguments of the pursuer are altogether inconclusive. The defender's lands within the parish of Coldingham are stated in the titles to be a seven merk land, a five shilling land, and a four shilling land. His lands in Eyemouth, formerly runrig, are clearly ascertained in extent; are of considerably less extent; and cannot be confounded with the other. He admits that these are contained within the parish of Eyemouth. And I agree with the Lord Ordinary that the rest of his lands are in the parish of Coldingham.
II. Under the second conclusion of the summons, the only question that occurs relates to the lands of Hawkslaw; for the defender Webster does not resist this conclusion of the summons in regard to certain other portions of land mentioned in the Lord Ordinary's interlocutor.
These lands of Hawkslaw, consisting of about 20 acres, were the share of the runrig lands allotted to Mr Bogie of Halidoun in lieu of several small portions formerly belonging to him, and held in runrig. It would appear that these portions must have been acquired by the proprietors of Halidoun, and annexed to that estate, previous to the disjunction of the parish of Eyemouth from Coldingham. In the titles of the Halidoun estate, of which they thus formed part, the only parish mentioned is Coldingham. The newly erected parish, it would appear, did not therefore embrace these portions of land which, previous to its date, had ceased to constitute any part of the lands connected with the town of Eyemouth.
In this respect these 20 acres seem to be contrasted in the process of division with the great body of the runrig lands to be divided, in as much as the latter are stated to lie in the parish of Eyemouth, whilst the former are stated to lie in the parish of Coldingham. This is expressly stated in the condescendence for the pursuers of the action; and the statement is not denied in the course of the proceedings. It was not unnatural that the lands acquired by Bogie should be held as excambed for the lands given up, so as to pass under the same titles and to remain subject to the same parochial division and assessments.
Accordingly, it is proved beyond doubt that these 20 acres, now called Hawkslaw, have been for a very long period of years, and indeed, as it would appear, ever since the date of the decree of division, treated as situated in the parish of Coldingham. From 1779 till 1817 they have been stated as in Coldingham in the County Cess Rolls, upon which parochial assessments have been made, as appears from the testimony of the witnesses William Turnbull Kelly and George Peat. The matter of the parochial assessments is spoken to by
Page: 499↓
III. The third conclusion of the summons relates to the property of the defender's heirs' trustees.
The case is, if possible, more clear in their favour than in regard to Mr Webster. The lands embraced in the third conclusion of the present summons are what were allotted in the division in lieu of certain runrig acres, stated in the process of division to amount to about 20 acres, belonging to Mr Wilkie of Foulden, being pertinents of the farm of Alemiln, and to be parts of the parish of Coldingham. The lands thus allotted are clearly proved to have always been held as contained within the parish of Coldingham.
I am therefore of opinion that the Lord Ordinary has taken a correct view of this case in all its parts, and that his Lordship's interlocutor ought to be adhered to.
This was the opinion of the Court.
Solicitors: Agents for Pursuer— Adam & Sang, S.S.C.
Agents for Defenders— Robert Hill, W.S.; James Webster, S.S.C.; Hamilton & Kinnear, W.S.