Scottish Court of Session Decisions

This was a declarator brought by the minister of Kilmorack to have it declared that certain lands in his parish are unvalued. The present question related to the lands of Ardnagrask, Tomich, and Barnyards, which were said to be situated in the parish of Kilmorack, and to have been valued by mistake as in the united parish of Urray and Gilchrist. The pursuer contended that, being valued in the wrong parish, the lands were unvalued; and the Lord Ordinary ( Barcaple) sustained this contention, holding himself bound by an old decision referred to in the recent case of Rescobie.

The following is his Lordship's interlocutor:—

The Lord Ordinary having heard counsel for the parties, and considered the closed record, productions, and whole process—Finds it is admitted by the defender that the lands of Easter Muilzie, Muilsie Riach, and Eilean Aigas are unvalued for teind: Finds that the only lands, or portions of lands of Ardnagrask, Tomich, and Barnyards contained in either of the decree of valuation founded upon by the defender, are there valued as lying within the united parishes of Urray and Gilchrist: Finds that, in so far as any portions of the said lands so valued as lying within the united parishes of Urray and Gilchrist may actually lie within the parish of Kilmorack, the Bame have not been effectually valued: Finds that the pursuer avers, and the defender denies, that portions of said last-mentioned lands are situated in the parish of Kilmorack: Allows to the pursuer a proof of his said averment, and to the defender a conjunct

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probation; Finds that, except the lands before mentioned, none of the lands which are the subject of this action are valued in either of the said decrees of valuation under the names by which they are described in the summons, but that the defender avers that they were included in the decree of valuation of 3d February 1773 under other names, as specified in the list produced by him: Allows to the defender a proof of his averments thereanent contained in the fourth article of his statement of facts, and to the pursuer a conjunct probation: Appoints the cause to be put to the Motion Roll on the first sederunt day in May next, to fix the time and mode of taking such proof; and reserves the question of expenses.

Note.— 1. It being now admitted that the lands of Easter Muilzie, Mulzie Riach, and Eilean Aigas are unvalued, decree in terms of the conclusions of the summons will fall to be pronounced in regard to them.

2. The only lands, or portions of lands, of Ardnagrask, Tomich, and Barnyards, mentioned in the decree of 1773, are there valued as in the united parishes of Urray and Gilchrist. The Lovat estate was then in the hands of the Commissioners of Forfeited Estates, and it appears from the proof that these lands were entered in their rental as being in the parish of Kilmorack. But the witnesses deponed that they believed them to lie in the united parishes of Urray and Gilchrist, as they paid stipend to the minister there. In the grand decerniture the whole lands contained in the decree are valued separately as lying in the several parishes there specified, and these particular lands as in Urray and Gilchrist. The effect of lands being valued as in a parish different from that in which they are locally situated was the subject of decision in the recent case of the minister of Rescobie v. Carnegie, decided 5th February 1869. In that case, though the lands were libelled in the Bummons of valuation as lying in particular parishes, the particular lands in question being misdescribed in that respect, the ultimate decree of valuation did not refer to the parishes. On that ground the present Lord Ordinary held the valuation to be effectual, and his judgment was adhered to by the Second Division. But the Lord Ordinary feels himself precluded from taking that view in the present case by the judgment of the Court in the unreported case of Kilmalie in 1826, referred to in the case of Rescobie. The objection seems to be entirely technical, as the ministers of all the parishes were called, though they did not appear, and there is no reason to suppose that the fairness of the valuation would be in any way affected by the error as to the parish in which the lands lay.

The defender denies that any portion of these lands lie in Kilmorack. The pursuer must prove that they do so, in order to entitle him to decree of declarator in regard to them.

“3. The question as to the remaining lands is, whether they were valued by the decree of 1773 under names different from those which they now bear, and by which they are described in the conclusions of the present action. It lies upon the defender to prove that they were so, and he has been allowed a proof, in which he must take the lead.”

Lord Lovat reclaimed.

Gifford and Rutherfurd for him.

Clark and Watson in answer.

The Court recalled the Lord Ordinary's interlocutor so far as relating to the lands in question, and held the said lands to have been effectually valued, notwithstanding the mistake as to the parish. The ground of judgment was that there was no question as to the identity of the lands, and that a mere misdescription of their locality was of no importance, more especially as the minister of Kilmorack was called in the valuation along with the ministers of the adjoining parishes, and had thereby been duly certiorated. It was also important that the process in which the minister was called was a valuation of teinds and not one to fix boundaries merely.