Scottish Court of Session Decisions

On March 1st 1882 a contract of excambion was entered into between the commissioners for the Marquess of Bute on the one hand, and the other heritors of the parish of Rothesay on the other. The deed proceeded upon the narrative that it had been represented to the Marquess by the heritors that the old parish churchyard of Rothesay with the additions previously made to it had become inadequate for burial purposes, and that an addition thereto had become essential; that the old chapel within the parish churchyard, which had originally formed part of the old abbey of St Mary's, and been until the beginning of last century used as a place of interment for the ancestors of the Marquess, was in a dilapidated condition; that this ruinous condition of the building was a source of regret to him, and that he was anxious to obtain possession of it in order that it might be restored as the resting-place of his ancestors and as an ancient historical building. The contract then narrated that on application being made to him for the additional ground required for burial purposes, he had expressed his willingness to grant it, and suggested that in exchange therefor the heritors “should make over the said chapel to him.” Thereafter the Marquess by the succeeding clauses of the deed proceeded to dispone, in favour of himself and the other heritors of the parish, a piece of ground to the south of the existing parish churchyard, while, on the other part, in consideration of that conveyance, the heritors disponed to the Marquess, “his heirs and successors whomsoever, heritably and irredeemably, All and Whole the said chapel, with the solum, of the ground on which the same is built, and whole parts and pertinents thereof, which chapel adjoins the present parish church of Rothesay, and is bounded on all sides by the old churchyard of said parish, except at the north-west comer of said chapel, at which corner the walls of said chapel and of the present parish church meet, with the whole right, title, and interest of the heritors therein; but it is hereby provided that the said chapel and others shall only be held by the said Marquess upon the same terms as any other mausoleum which has been erected within the said churchyard with the sanction of the heritors, reserving always to the relatives or representatives of persons buried in the said chapel all existing rights of access thereto for the purpose of visiting and repairing the tombs; and also reserving to the parishioners of the parish of Rothesay, and all others, all existing right of access to the said chapel, subject only to the condition that said access shall be under the superintendence of the sexton for the time, who shall be provided by the Marquess of Bute with a duplicate key of the chapel for the purpose; and the said Marquess is hereby empowered to restore the said chapel, and that in such manner as shall seem to him most fit, and to use all manner of means for that purpose, but consistently with the aforesaid limitation.”

This was a process of suspension and interdict directed against the Marquess at the instance of certain heritors and parishioners of the parish who were opposed to the arrangement made by the contract above narrated. The prayer of the note was for interdict against the respondent “carrying out and completing” the arrangement for the conveyance to him of the chapel, and to have him or anyone on his behalf interdicted “from occupying, taking possession of, interfering with, or exercising any right of proprietorship in the said chapel or site thereof, under or in virtue of any such conveyance or arrangement; and also from interfering with or obstructing the free access at all times of the complainers and other heritors and parishioners in said parish to the graves and lairs in the said old chapel and burying-ground, and from interfering. with or removing gravestones or other monuments in or near the said old chapel.”

The complainers set out the various disputes and difficulties which had arisen in the course of the arrangement finally embodied in the contract, and the fact, which was admitted, that there was no consent by the presbytery or kirk-session to the arrangement. They explained that the arrangement embodied in the contract had been carried out by a majority of the heritors. They stated that they did not object to the restoration of the chapel, provided it remained the property of the heritors and subject to their control, but averred that the respondent proposed to use it for religious worship in accordance with the forms of the Roman Catholic Church, and particularly for the saying of masses for the dead, and that the result of the arrangement would be to exclude them and other parishioners from a portion of the parochial buildings, and from the graves within the chapel. They also averred, and the respondent admitted, that from time immemorial the ground inside and around the chapel had been used as part of the parish churchyard, and that tombstones had been erected within the chapel in comparatively recent years.

The chapel was situated in the middle of the old churchyard, one end of it being in immediate juxtaposition with the gable wall of the parish church.

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The complainers pleaded—“(1) The respondent having no right or title to the old chapel in question, and the proposed conveyance to him by some of the heritors of the parish being ultra vires and illegal, the interdict prayed for ought to be granted. (2) The respondent's threatened proceedings being an invasion of the complainers' rights, ought to be interdicted as craved, with expenses.”

The respondent pleaded—“(2) The interdict first and second prayed for should be refused, in respect … that the conveyance was in all respects legal and valid. (3) The interdict should be refused quoad ultra in respect that any rights of the pursuers are sufficiently protected by the terms of the said conveyance or contract of excambion. (4) Separatiom, the said interdict ought to be refused, in respect that the averments in support thereof are unfounded in fact, and in respect that the proposed regulation of access is reasonable in the circumstances.”

The Lord Ordinary pronounced this interlocutor:—“Finds that the contract of excambion, is ultra vires of the heritors in so far as it purports to convey to the respondent the chapel in the parish churchyard of Rothesay described in the condescendence, with the solum of the ground on which the same is built, and the whole right, title, and interest of the said heritors therein: Interdicts, prohibits, and discharges the respondent, or anyone on his behalf, from occupying, taking possession of, or interfering with or exercising any right of proprietorship in the said chapel or site thereof under or in virtue of the said contract of excambion: Quoad ultra refuses the interdict: Finds the complainers entitled to expenses,” &c.

“ Opinion.—This is an interdict against the completion of a conveyance to the respondent of a chapel in the parish churchyard of Rothesay, and against his taking possession of the subject and exercising any right of property therein in virtue of such conveyance. [ His Lordship here referred to a preliminary plea which was not insisted in by the respondent].

I am of opinion that it is not within the power of the heritors to confer upon the Marquis a right of property in the chapel, which they concede to be situated within the parish churchyard, adjoining the parish church, and to have been for time immemorial virtually a part of the churchyard. The heritors are not proprietors of the churchyard in any sense which will enable them to give to others a feudal right of property in the solum of the whole or any part of it. They are administrators of the churchyard for parochial purposes. But they hold it as trustees, and the alienation of a part of it appears to me to be a breach of trust. They have undoubtedly very large powers of regulation and control. In the exercise of these powers they may allocate particular portions of the churchyard as places of sepulture to particular heritors; and the heritor in whose favour such a grant has been made may acquire a patrimonial interest in the portion of the burying-ground set apart for him, of which he cannot be arbitrarily deprived. But it would be contrary to all the authorities to hold that either by express grant or use he can acquire a right of property which will enable him to exclude the administration and control of the body of heritors.

In the case of Ure v. Ramsay ( 6 S. 916) the main ground of judgment, as explained in the opinion of Lord Cringletie, is that ‘no parishioner can acquire a right of property in the solum of the kirkyard.’ In the more recent case of Hill v. Wood ( 1 Macph. 360) the nature of a heritor's right to a burial-place in the parish churchyard of which he was in exclusive possession was very fully considered. Lord Neaves says—‘It is not a right of property; it is certainly not a right to sell; but it is an interest of a strong and high character.’ And the Lord Justice Clerk says—‘The right of any heritor to a separate portion of the churchyard of which he is in exclusive possession, though it is not a right of feudal property, nor perhaps a right of property in any strict or technical sense of the term at all, is yet such a right as he is entitled to defend—a right of which he cannot be deprived even by the general body of the heritors administering the affairs of the parish, except on the ground of some absolute necessity, or some such high expediency as in such cases and in many other departments the law considers as equivalent to necessity.’ It was maintained for the respondent that the contract of excambion did not really give him a higher right than was recognised and protected in the case of Hill v. Wood. But I cannot so read the deed. It conveys to the Marquis ‘and his heirs and successors whomsoever, heritably and irredeemably, the said chapel, with the solum of the ground on which the same is built, with the whole right, title, and interest of the heritors therein. ‘That is not merely an allocation of a burial-ground in the parish churchyard. It is a conveyance of property; and it is recorded in the Register of Sasines, so that if the conveyance and registration have any effect in law the respondent has been entered as the immediate vassal of the Crown in the subjects in question as a feudal estate. It is an estate of which he could not be deprived in whatever case of necessity. There is nothing to prevent him selling it; and the heritors who have conveyed to him their whole right, title, and interest could not claim to exercise a power of control or regulation by which their disponee should be restrained in the use of his property. I think it clear that a conveyance having these effects is not an act of administration within the power of the heritors, but an alienation, by which, if it were effectual, their right of administration would be extinguished.

It is said, however, that the conveyance is qualified by a condition which so restricts the right of property as to prevent the chapel being applied to any other purposes than those proper to a churchyard, because it is provided that the said chapel and others shall only be held by the said Marquis upon the same terms as any other mausoleum which has been erected within the said churchyard with the sanction of the heritors.' But it was admitted at the bar that there is no other mausoleum within the churchyard held upon terms to which this claim is intended to refer. The conclusion goes far to deprive the words of significance, and the counsel for the respondent could not undertake to define the uses to which the condition would limit him in the exercise of his right of property.

I think it very doubtful whether the restriction would be effectual to prevent the chapel being applied by the respondent himself, or by his

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successors, to purposes to which the heritors as a body, or any individual heritor, would be entitled to object if it still remained a part of the churchyard.

The cases of Richmond v. Fife, 6 D. 701, and Wright v. Lady Elphinstone, 8 R. 1025 ( 19 Scot. Law Rep. 1), are illustrations of such purposes. It was argued that these cases are inapplicable, because the persons who were there prohibited from applying buildings within a parish churchyard, and forming part of it, to other than parochial purposes, held no title from the heritors by which their action could be supported. If this were a complaint against particular uses of a chapel or a mausoleum held under a title of property admittedly valid the distinction would be just. But it follows that the grant of such a title by the heritors implies a surrender of the rights and duties of administration with which they are entrusted for the benefit of the parishioners. And accordingly the remedy sought by the complainers is not against particular uses of the chapel under the title in question, but against the title itself, and the exercise of any right of property by virtue of it. The complaint is no doubt supported by averments that Lord Bute intends to convert the chapel into a church for the performance of ‘rites and ceremonies in conformity with the rules and practices of the Church of Rome.’ But that is a mere illustration of the purposes to which he may apply the building if it becomes his private property. I do not think it necessary to consider how far the complainers would be entitled to object to the performance of such services in the churchyard. For the only question which appears to me to be raised for decision is, whether the proposed alienation of a portion of the churchyard by a conveyance of the solum is illegal and ultra vires of the heritors? Whether they may or may not give the respondent an exclusive right to the use and possession of the chapel as a family burial-ground, or permit him on that footing to restore it in the manner proposed, or to convert it into what is called a mausoleum, and what are the religious services which a heritor who does not happen to be a member of the Established Church may perform within a mausoleum or family burying-ground in a parish churchyard, are questions which do not appear to me to arise for decision in this process, and as to which I express no opinion. [ His Lordship here dealt with the preliminary plea not insisted in by the respondent, as mentioned above].

Besides an interdict against the exercise of any proprietary right under the conveyance, the complainers ask interdict also against interference with access to the graves in the chapel, and the removal of gravestones or monuments. If these are mentioned merely as acts which might be done by a private proprietor in the exercise of his right, it seems to me unnecessary to specify them, since the respondent will be precluded by an interdict in terms of the previous branch of the prayer from exercising any proprietary right in the chapel. But, as expressed in the prayer, the second branch of the interdict sought stands entirely separate from and independent of the first. No ground, however, is stated for apprehending any improper interference either with the access or the tombs if the title should not be sustained. There appears to me, therefore, to be no sufficient ground for an interdict in these terms.”

The respondent reclaimed, and argued—As a matter of fact, the heritors and those interested through them were substantially benefited by this transaction, owing to the large additional burying space thus acquired. The Lord Ordinary based his judgment upon it being ultra vires of the heritors to alienate any portion of the churchyard. As a matter of practice there were instances of churchyards having been rendered inter commercium, and having had streets and houses built upon them; and Erskine, vol. ii. tit. 1, sec. 8, and tit. 3, sec. 8, dealt with the powers of heritors to excamb churchyards, and the only condition he inserted was that the ground when alienated should be so far reserved until the bodies were decomposed; see also Craig's Jus Feudale, i. 15, 11. As to the practice of excambing churchyards, see Dunlop's Parochial Law, p. 80, sec. 14; Duncan's Parochial Law, 271; Spence v. Hall and Darling, December 1, 1808, F.C.; Earl of Mansfield v. Wright, March 17, 1824, 2 Sh. App. 104. The right here asked was analogous to the right to transport kirks and kirkyards, for which see Connell on Parishes, 234 and 235, and cases of Lithgow v. Wilson, M. 9637; and Monteith, 4 Bell's Supp. 261. There was a great difference between sale and excambion, the money obtained by the one might be squandered, whereas by the other an equivalent was obtained. A churchyard, apart from sentiment, was just a piece of parish property held by the heritors for parish purposes. Trustees might not alienate parish property, but might in the course of their administration substitute one piece of ground for another, and in the circumstances of the present case they were entitled to excamb. Graveyards were not more “religious” than churches, yet Dunlop (Parochial Law, 32) and Connell (p. 16) gave a series of examples of excambing churches. No disability arose from the peculiar uses to which churchyards were put to prevent an excambion. See Octerlony, June 27, 1823, 2 Sh. 437. In a question as to the powers of the heritors it made no difference that the portion of ground to be excambed lay in the centre of the churchyard—Bell's Dictionary voce Churchyards (Watson's ed.); and Duncan's Ecclesiastical Law, 260. Neither kirk-sessions nor presbyteries had anything to do with the regulation of churchyards; the right to deal with them was in the hands of the heritors alone.

Additional authorities— Robertson v. Salmon, March 1868, 5 Scot. Law Rep. 405; Ecclesiastical Buildings Act 1868 (31 and 32 Vict. c. 96); Lord Bute v. Commissioners of Rothesay, June 23, 1864, 2 Macph. 1278; Philloth, M. 5620; Bankton, ii. 8, 196; Erskine, ii. 10, 61; Stewart v. Glenlyon, May 20, 1835, 13 Sh. 787.

Argued for complainers—The only thing quite clear about the solum of the old chapel was that it was part of the churchyard of Rothesay. The complainers' true title was that of parishioners, and no objection was stated on record to that title. The old church being part of the solum of the churchyard could not be excambed—Craig's Jus Feudale, i. 15, 11. Being a public burying-ground, it was religious, and therefore extra commerciuM. The churchyard was both a public and a legal trust, and the heritors were therefore not justified in parting with it. In the present purpose there was either an intention to abandon this trust or to hand it over to Lord Bute. See

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the case of Richmond v. Fife's Trustees, February 16, 1844, 6 D. 701. Were the heritors acting within their powers in granting this excambion? This excambion was not by heritors to heritors at all, but to a new body of trustees altogether; it was the use to which this chapel was to be put that caused the principal objection. The question of the right of the heritors to act as they had done here had never arisen before. The case of Spence v. Darling, F.C., 1808, was the nearest approach to it; there the church manse and glebe were transported, but the churchyard remained. Though a church and glebe were not res religiosœ, a churchyard was—Bankton, i. 3, 12. The heritors' right was one of trust, with a right of administration; here they have not administered, but bargained and given up their trust, by executing the conveyance in question. Walker v. Presbytery of Arbroath, March 1, 1876, 3 R. 490.

At advising—