Scottish Court of Session Decisions

This was a suspension and interdict at the instance of James Grahame, dyer, Kirkcaldy, against Patrick Don Swan and others, being the Provost, Magistrates, and Town Council of that burgh, and also Commissioners of Police under “The General Police and Improvement (Scotland) Act 1862.” The complainer prayed for interdict against the respondents “from in any way encroaching upon that portion of the South Links or south commonty of Kirkcaldy which is now or was recently in grass, and which now remains or recently remained unfeued, and which extends from Burleigh Street of Kirkcaldy on the north, to the vennel called John Loudoun's Wynd on the south, and from property belonging some time to the heirs of Thomas Meldrum and other properties on the west, to the seafood on the east, … and in particular … from encroaching upon that portion of the South Links or south commonty which is commonly named or known as the Volunteers' Green, being part of the common good of the burgh of Kirkcaldy.” There was also a prayer for interdict against the erection of stables or any buildings which might prejudice the rights of bleaching, drying clothes, &c., which belonged to the inhabitants. These the complainer averred he had enjoyed for many years along with the other inhabitants. The charter of the burgh of Kirkcaldy was granted by Charles I., and dated February 5, 1644. It confirms an earlier charter granted by David II. It contained, inter alia, the following clause:—“Cum acris burgalibus et communi mora et lie moss et muirlands cum territorio de Kirkcaldie aliisque juribus et pertinen … et territorium suprascript per presentis carte nostre tenorum declaratur salinas de Kirkcaldie fore, viz., a vico vocat John Lowdoun's wynd ad orientalem pontem.” From 1644 down to 1754 the subjects referred to above remained the property of the magistrates for the public purposes of the burgh. One-third at least had always been kept in grass for drying, bleaching, and recreation purposes. On 18th March 1754 the municipal authorities entered into a feu-contract with Robert Whyte, then provost, whereby in consideration of the sum of £1 Scots money instantly paid, and £34 Scots money of annual feu-duty, and in conformity with an Act made by the General Convention of Royal Burghs in July 1753, authorising the magistrates of Kirkcaldy to feu out that part “of the property, lands of the said town, called South Links, lying on the south side thereof,” they disponed to him certain subjects thereon, “but under the limitations and restrictions underwritten, viz., that there shall now and in all time coming be reserved to the inhabitants of Kirkcaldy one-third part of said links in grass as at present, for drying linen clothes, allenarly, and free access thereto at all times for that end.” There was a provision that certain roads be left

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* Decided June 19, 1879.

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open through the links. These subjects were reconyeyed in 1788 to the municipality by Robert Whyte's representatives. The reconveyance conveyed the subjects “always with and under the limitations and restrictions specified in the said feu-contract.”

The complainer averred that from Martinmas 1787 to 1854 the subjects described in the prayer of the note, and which were the subjects to which the before-quoted limitations and restrictions applied, were in grass, and used exclusively for the purpose of drying and bleaching clothes and linen, and were always open and patent to the whole inhabitants of the said burgh.

In 1854 an action of interdict was brought by Walter Heggie against the magistrates, who proposed to build upon a part of the subjects in question, and the Sheriff-Principal after proof was led, and a visit to the ground, pronounced an interlocutor with these findings, inter alia—“(5) Finds that the Magistrates and Council of Kirkcaldy are proprietors for behoof of the community of the South Links of Kirkcaldy, comprehending, inter alia, the Volunteers' Green and the enclosure to the west end of it, on which the building in dispute is in the course of erection, but under the limitation and reservation that one-third part of the said links shall be reserved to the inhabitants for drying linen clothes thereon; (6) finds it not denied that a large portion of the said links as acquired by the magistrates has been from time to time feued out by them for building purposes, and that the remaining portion, including the Volunteers' Green and the said enclosure to the west of it, are not equal to more than one-cdthird of the whole links, as the same were originally acquired by them; (7) finds that about the year 1836 the portionnow occupied by the Volunteers' Green was enclosed and furnished with conveniences for a bleaching and drying green for the public of Kirkcaldy, and that it continued to be used for these purposes; (8) finds that about the year 1838 the westmost portion, being that in dispute, was enclosed with stone walls, and used by the magistrates for a dung depot, and it was used down to 1848, when the depot was removed to the railway station, and since 1848 it has been let by the magistrates for the site of public shows, caravans, and the like purposes; (9) finds that previous to the said portion of the links having been so enclosed they were open and waste land traversed in all directions, and at high tide covered by the sea to a large extent, and inter alia used, on such parts of them as contained grass, for the purpose of bleaching and drying clothes—in particular, finds that the westmost portion was more broken and less fit for such purposes than the east, being often covered with filth and rubbish, and the north portion of it occupied with dung-pits; (10) finds that the respondents have failed to prove their averments that for forty years and upwards no part of the ground occupied by the said westmost enclosure has been used for bleaching and drying clothes; on the contrary, finds that patches of it were occasionally used for such purposes by a few individuals up to about thirty-six years ago, but not later.”

Since that date the subjects in question had been in grass, and had been used by the inhabitants of the burgh for the purposes mentioned above. A bill was promoted in Parliament in 1876 for extending the municipal and police boundaries of the burgh, and for other purposes, and containing, inter alia, a provision empowering the sale of the Volunteers' Green, but that provision was afterwards struck out.

The magistrates, it was averred, had now reduced the area of the links, which was reserved in grass, to one-fifth, and they now proposed to erect stables in violation of the restriction imposed by the titles, and to the prejudice of the interests of the inhabitants.

The respondents' statement of facts was, inter alia, as follows:—“The common muir of Kirkcaldy is now feued out with the exception of the Volunteers' Green, which is enclosed and used by the inhabitants for bleaching purposes. The ground in dispute is to the west of the Volunteers' Green, and is separated from it by a road or street called Burleigh Street. It has been in the possession of the magistrates without interruption since at least the year 1788. In 1838 it was enclosed, and has since been used, for various purposes connected with the town, but it has never been used for bleaching. Indeed, within human memory it has not been in grass so as to make it suitable for bleaching, and could not be so used at the present. Moreover, no possible advantage is to be gained by its being so employed, as sufficient provision is made for bleaching on the Volunteers' Green, immediately adjacent. In their capacity of police commissioners the magistrates some time ago resolved to erect on the vacant ground in question stables and other buildings necessary to be provided in connection with the police of the burgh. It cannot be disputed that this was a proper act of administration on their part. The buildings were necessary, the ground was suitable, and no other possible use of the least benefit to the public to which it was or could be put was interfered with. In point of fact, no objection was made by any of the inhabitants except Mr Heggie, whose property overlooks the ground in question towards the sea, and whose interest it is that it should remain unbuilt upon. On the 7th of June 1877, soon after the resolution of the respondents had been taken, a letter was received from Mr Heggie's agent threatening an interdict, and intimating that that gentleman was ‘determined to oppose any further encroachment on the rights of the public, more especially looking to the unpleasant use that it is proposed to be made of the ground,’ but after some correspondence his opposition dropped, and until the present application no further movement was made on the part of any person resident in the burgh to stop the operations. The estimated cost of the buildings is £1342, 5s. 11d. So far back as the 13th of July 1877 the respondents qua commissioners of police gave notice in the newspapers that to meet this expenditure they intended to borrow the sum of £1100. The purpose of the loan was expressly stated in the advertisement to be for the erection of stables, dwelling-house, fire-engine-house, and other offices for their use on the ground in question, being ‘the piece of ground lying betwixt the Volunteers' Green and the western boundary of the ancient royalty of Kirkcaldy.’ The contracts were settled on 28th January 1878. At the time this note was served, mason-work to the value of £312,17s. lOd. was actually executed, and materials had been laid down on the ground, not fixed, but ready for

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fixing, of the value of £336, 17s. 11d. At least one-half of the buildings requiring roofing were ready for the roof. Further, all the steps necessary for a conveyance of the ground from the proprietors, the magistrates and town council of the burgh, to themselves as police commissioners, have been for some time completed in terms of the Police Act and relative statutes. Valuators were nominated by deed of nomination, dated the 10th of November 1877, and they having fixed the value at £290, 13s., that price has been paid, and a disposition executed and delivered to the police commissioners, dated the 28th of January, and registered in the Particular Register of Sasines for the burgh of Kirkcaldy the 11th of February 1878. For more than a century, by the custom of the burgh of Kirkcaldy, a certain portion of the links has been reserved in grass for drying clothes, but for more than forty years, or past human memory, the said use has been confined to that part of the links called the Volunteers' Green. No complaint has ever been made that this was insufficient for the public requirements, which, in point of fact, it was not, and the feuing of the remainder of the links, which was in operation so early as 1754, has been with the sanction and acquiescence of all parties.”

The complainer pleaded, inter alia—“(1) The prayer of the note ought to be granted in respect of the restrictions and limitations imposed by the titles. (2) The said ground having been used as a commonty for the purposes condescended on from time immemorial, the respondents are not now entitled to change its character. (4) The ground mentioned in the prayer of the note being held by the magistrates and council in trust for the public purposes specified, they are not entitled to defeat the rights of the public therein.”

The respondents pleaded, inter alia—“(4) The writs founded on are insufficient to constitute the rights claimed by the complainer as one of the public over the ground in qnestion. (5) If any such right ever existed, it has been lost non utendo. (8) The said ground being the property of the magistrates as representing the community, and subject to no such servitude as is alleged, its application in the manner proposed was a just and proper act of administration on the part of the respondents, and within their powers.”

The Lord Ordinary ( Adam) after proof, the purport of which appears from the note to his interlocutor and from the opinions of the Court ( infra), pronounced an interlocutor, in which he interdicted the respondents “from in any way encroaching upon that portion of the South Links or South Commonty of Kirkcaldy which is now or was recently in grass, and which now remains … unfeued, and which extends from Burleigh Street … on the north, to … John Loudoun's Wynd on the south,” &c., and also “from digging foundations in, or in any way trenching or cutting up for building purposes, the said lands,” and “from erecting stables or any buildings or erections of any kind thereon.” He added this note:—

“ Note.—The South Links or common muir of Kirkcaldy lies between the town and the sea. It has been to a large extent feued by the magistrates of the burgh, and has been built upon. The question in this case is, whether the respondents, who are the present magistrates, are entitled to build stables and other erections for the use of the burgh on a portion of it which is still unbuilt upon, bounded by Burleigh Street on the east and Loudoun's Wynd on the west?

The Lord Ordinary does not think that any question arises as to whether the proposed erection of stables is a prudent act of administration on the part of the respondents. Neither does he think that any question of servitude arises. He thinks that the question which arises for decision is similar to that decided in the case of Sanderson v. Lees, viz., whether the title of the respondents to the ground in question is so qualified that they are bound to keep it in all time free and open for the use, enjoyment, and recreation of the inhabitants of the burgh, of whom the complainer is one?

If this be so, it follows that it is not necessary that the complainer should prove that the ground in question has been used and enjoyed by the inhabitants of the burgh for any particular purpose, such as the bleaching of clothes. All acts of the inhabitants showing that they have had the free use and enjoyment of the ground will be relevant in support of the complainer's case. On the other hand, acts of possession proved by the respondents will not be material unless they are inconsistent with and exclusive of such use and enjoyment on the part of the inhabitants.

The title of the respondents to the ground in dispute consists of a charter of confirmation by King Charles I., dated 6th February 1644. By this charter there is disponed to the magistrates the burgh of Kirkcaldy, with all the lands of the same, ‘ necnon cum acris burgalibus et communi mora — a vico vocat John Lowdoun's wynd ad orientalem pontem.’ It is not disputed that the ground in question is a part of the common muir here mentioned. It is not alleged that the muir is or was common in the sense of being held by the burgh in common with any adjoining proprietors. It appears therefore to the Lord Ordinary that the description here given of it as a common muir implies that it was at this date used and enjoyed by the inhabitants in common.

On the 18th March 1754 the bailies and magistrates feued the South Links to Robert Whyte, then Provost of the burgh. It was feued under the condition that there should be reserved in all time coming to the inhabitants of Kirkcaldy one-third part of ‘said links in grass, as at present, for drying linen cloths allenarly, and free access thereto at all times for that end,’ and provision was made for certain roads and accesses. The subjects were reconveyed to the magistrates by Robert Whyte's representatives in 1788 under the same conditions. It would appear that no infeftment had followed on these deeds, and neither party founded on them as affecting the respondents' title, and the Lord Ordinary has disposed of the case on that footing. The deeds were founded on, however, by the complainer, as showing that at their dates the links were in grass, and that the inhabitants had full access to them at all times.

As regards the use and enjoyment which has been had of these links by the inhabitants, it appears that they had been originally 8 172 acres in extent, and that prior to the year 1803 or 1804 the magistrates had from time to time granted feus of part of them to the extent of 6 976acres. Since that time there appears to have been no feuing or building. There was thus left a part of them,

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1·196 acres in extent, unbuilt upon. This ground was formerly divided into two parts by a ditch, which crossed it in the line in which Burleigh Street now runs. It appears to the Lord Ordinary that the whole of this ground was at one time known by the name of the Volunteers' Green, although latterly that name has become appropriated to that portion of the ground which lies to the east of Burleigh Street.

In the year 1854 there was a litigation between a Mr Heggie and the magistrates with reference to the proposed erection by the magistrates of a building on a part of the ground in question.

In that case an inquiry took place as to the use and possession which had been had of the ground by the inhabitants, in which many aged witnesses were examined. The result of that evidence seems to the Lord Ordinary to be very accurately stated by the Sheriff in an interlocutor of date 15th August 1854.

He describes the ground as having been open and waste land traversed in all directions, and at high tides covered by the sea to a large extent, and inter alia used, on such parts of them as contained grass, for the purpose of bleaching and drying clothes, and that the westmost portion (the ground now in dispute) was more broken and less fit for such purposes than the east, being often covered with filth and rubbish, and the north portion of it occupied by dung-pits.

On 2d July 1834 the town council authorised the Dean of Guild to remove all encroachments on the town's commonty, and to attend that no gates be allowed to be erected that might interrupt the public in using the said commonty.

The ground appears to have continued in the condition above described till the year 1836, when the portion of it to the east of Burleigh Street, and which is now known as the Volunteers' Green, was surrounded by a wall, and converted into a bleaching green, being supplied with water and other conveniences. This was done by public subscription, supplemented by the magistrates. It has since continued to be used as a public bleaching green.

With reference to the remaining or western portion of the ground, it appears that in 1832 the magistrates let it to a body called the burgh trustees, who were at that time responsible for the lighting and cleaning of the burgh.

The trustees began about the year 1834 to deposit the dung of the town there. In 1838 the trustees surrounded it by a wall, but there was no gate in the wall, and the inhabitants had full access to it as before.

Some of the inhabitants in the neighbourhood complained of the ground being put to this use, and threatened legal proceedings, and in 1848 the dung was removed and the place put into some sort of order. Since that time the inhabitants have had unrestricted access to it. It certainly presented no convenience for being used as a bleaching-green, but the poorer inhabitants in the neighbourhood have since constantly used the few patches of grass which grew on it for the purpose of drying and bleaching their clothes. Quoits were played on it for many successive years, although it appears that in one year (1863) the burgh had exacted a rent of £2. Exhibitions of horsemanship occasionally took place there, and on three occasions, one in 1855 and two in 1856, the magistrates received a small rent for the liberty granted. A theatre was also erected on the ground, but was removed in a few months, but whether or not in consequence of the remonstrances of the inhabitants who had protested against this use of the ground does not appear.

The Lord Ordinary accordingly thinks that it is proved that the inhabitants of Kirkcaldy have possessed from time immemorial this part of the links for the purposes of walking, bleaching clothes, and recreation. He also thinks that it is proved that the respondents are encroaching on the immemorial possession of the inhabitants, as established by the proof, and therefore that the complainer is entitled to interdict.— Sanderson v. Lees, Nov. 25, 1859, 22 D. 24; Home v. Young, Dec. 18, 1846, 9 D. 286.

It is true that the magistrates have from time to time granted feus of a portion of the links, but that fact also occurred in the case of Sanderson v. Lees, and the Lord Ordinary does not think that it can prevent the inhabitants from vindicating their right to the portion of the links which still remains unbuilt upon.

The Lord Ordinary was referred to the case of The Magistrates of Edinburgh v. The Magistrates of Leith, July 10, 1877, 4 Ret. 997, but it appears to him that the facts in that case do not at all resemble the facts in the present case, so as to warrant a similar decision. The ground in that case seems to have been considered by the Court to have been a vacant unfeued building stance, to which the public never had any right.”

The respondents reclaimed.

At advising—