Scottish Court of Session Decisions

By deed of excambion, dated 3d, 5th, and 6th May 1882, entered into between the Earl of Sea—field and the Presbytery of Abernethy, with consent and concurrence of the Rev. James Bain, minister of the parish of Duthil in the presbytery of Abernethy and county of Inverness, on the narrative “that the said Earl of Seafield sometime ago signified to the Reverend James Bain his desire to acquire part of the lands forming the glebe of Duthil, lying to the east and north of the churchyard, and extending to about one acre and one-half of an acre, with a view to plant and improve the said ground, which is in the immediate vicinity of the burying-ground of the family of Grant, and the said Reverend James Bain had expressed his readiness, subject to the sanction of the presbytery of the bounds, and on receiving an equivalent therefor, to concede for the object in view the said parcels of ground, and also that the said Earl should at the same time acquire right to the ground occupied by the church and churchyard of the said parish, to the exclusion of the right of the said Reverend James Bain and his successors in the said cure, to graze with cattle or sheep the said churchyard,” the said presbytery, with consent of the said Reverend James Bain, disponed to the Earl of Seafield “All and Whole the following pieces of ground forming parts of the present glebe lands of Duthil, and consisting of three small parcels, the first forming the triangle between the Grantown and Carr Bridge Road, the road from Duthil Mill to Grantown, and the churchyard, and extending to two roods and two poles or thereby; the second forming a triangle, and lying between the said Grantown and Carr Bridge Road, the north wall of the churchyard, and a straight line between the said road and the churchyard, the said straight line being a continuation of the boundary of the churchyard on the west, and extending to about thirty-two poles; and the third bounded on the west by a continuation of the said straight line last mentioned, extending to the plantation fence, on the south by the said Grantown and Carr Bridge Road, and on the north and east by lands belonging to the said Earl of Seafield, and extending to three roods and thirty-nine poles or thereby; as also the ground forming the churchyard of Duthil, and the site of the parish church thereof, extending to three roods and one pole or thereby; and the land occupied by the Grantown and Carr Bridge Road so far as it traverses the said glebe of Duthil, extending to two roods ten poles or thereby, making in all three acres and four poles imperial measure or thereby, all as delineated and coloured red on the foresaid plan hereto annexed, and signed as relative hereto; together with all right, title, and interest which the said presbytery of Abernethy or the said Reverend James Bain or his successors in the said cure had, have, or any wise might claim or pretend thereto in all time coming, and specially including the right of the minister of the said parish to graze with cattle or sheep the said churchyard, which right is hereby for ever renounced and discharged, the said Earl of Seafield and his foresaids being by acceptance hereof bound to cut the grass in the said churchyard, and to keep it in the order in which it has hitherto been kept by the minister.” In return for this disposition the Earl of Seafield disponed to the presbytery a piece of ground extending to three acres and four poles imperial measure or thereby.

This was a note of suspension and interdict at the instance of the Rev. James Bain against the Countess-Dowager of Seafield, who succeeded her son in the estates of Seafield, to have the respondent interdicted from—(2) Erecting or constructing a mausoleum, family vault for burial of the dead, or any such building or erection, in or upon any part of said ground; (3) using or devoting any part or portion of the said ground for extending the area of the churchyard of the parish of Duthil; and (4) devoting the said ground, or any part or portion thereof, to any other use or purpose than that set forth in the said contract of excambion—viz., planting and so improving the same.

The complainer averred that he “only consented to the said excambion on the express condition that the portions of the ground conveyed to the Earl of Seafield should be used solely for planting and for the purpose of improving the amenity of the manse and the privacy of the churchyard;” but that since the respondent succeeded to the Seafield estates she had, “in breach of the arrangement condescended on, resolved to use the ground for building purposes, and was now cutting down trees of old standing and uprooting plants of a few years' standing in the triangle between Grantown Road and the

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road leading to the manse called the ‘Old Mill Road,’ and bounded on the west by the churchyard wall, with a view to extend the area of the churchyard and build a mausoleum thereon.”

The complainer founded on the Statute 18 and 19 Victoria, chapter 68, entituled “An Act to amend the Laws concerning the Burial of the Dead in Scotland,” section 11 of which enacts that “any burial-ground may be provided under this Act either within or without the limits of the parish for which the same is provided, but no ground not already used as or appropriated for a cemetery shall be appropriated as a burial-ground or as an addition to a burial-ground under this Act, nearer than one hundred yards to any dwelling-house, without the consent in writing of the owner, lessee, and occupier of such dwelling-house.” He averred that the ground which the respondent proposed to devote to the extension of the area of the churchyard was within sixty yards of his manse, which was his dwelling-house, and that he had not consented to the extension; further, that the mausoleum which it was intended to build was within sixty yards of the manse; that he and his family had suffered in health from the proximity of the graveyard, and specially of the then existing mausoleum of the family of Grant, which was situated within forty yards of the manse.

The respondent pleaded—“(1) The note ought to be refused, in respect that, on a sound construction of the contract of excambion, the ground on which the respondent proposes to erect the mausoleum is her own absolute property; and, separatim, that the said erection is in no way inconsistent with the purpose for which the said ground was acquired. (2) The Burials Ground (Scotland) Act 1855 has no application to the present question, inasmuch as the respondent's operations do not involve the appropriation of ground for a burial-ground, or addition to a burial-ground, under the Act; and, separatim, the ground in question is farther from the complainer's manse than the churchyard of Duthil.”

On 4th August 1884 the Lord Ordinary on the Bills ( Lord Lee) refused the note.

The complainer reclaimed, and argued—The deed of excambion was inept, because the conveyance by the presbytery, with concurrence of the minister, was a non domino. On the narrative of the deed the improvement of the land was made a condition of the conveyance; the proposed erection of a mausoleum was a violation of that condition; and was also in contravention of section 11 of the Act 18 and 19 Vict. cap. 68, above quoted.

The respondent answered—(1) The conveyance was absolute in its terms. Moreover, the proposed erection was quite in consistence with the narrative of the deed. (2) The complainer was barred from maintaining his demand for interdict because the respondent had every title he could give her. The Burials Act of 1855 had no application, because the proposed operations did not involve the appropriation of ground for a burial—ground, or an addition to a burial-ground.

At advising—