Scottish Court of Session Decisions

This was an action for interdict in the Sheriff Court of Fife at Cupar by Lieutenant-Colonel Bethune, Major Boothby, and H. S. C. Everard, all residing at St Andrews, on behalf of the St Andrews Ladies' Golf Club, against James Glover Denham, of No. 3 Pilmour Links, St Andrews.

The pursuers averred that they were tenants of a small piece of ground, about 158 yards in length, forming part of Pilmour Links, lying on the east side of the golfing course of St Andrews, and immediately northward of the mouth of the Swilkin Burn.

The lease under which they held the ground was dated in 1881, and bore to be between Mr George Clerk Cheape, Esq. of Strathtyrum, proprietor of Pilmour Links, with consent of John Millar, his grazing tenant, and the pursuers on behalf of the club. By this lease the pursuers became tenants of the ground in question for seven years from the term of Martinmas 1880 at a yearly rent of £4. After describing the ground the lease proceeded—“Excepting from said piece of ground hereby let any portion thereof over which the inhabitants of St Andrews may be entitled to exercise the liberty and privilege of bleaching under the feu-rights of the said Links granted by the Town Council of St Andrews in favour of the proprietors' authors and predecessors, and declaring that the said inhabitants shall not be interrupted or molested in exercising such liberty and privilege,”… “which piece of ground hereby let is to be made use of for the purpose of golfing or putting by the members of the St Andrews Ladies' Golf Club, and by such other persons as the said club may allow, but by no others.” Prior to the date of the lease the Ladies' Golf Club had held the same piece of ground since 1867 at a rent of £2 per annum, payable to the grazing tenant.

The pursuers stated that a golf course had been formed on this piece of ground; that since 1867 the club had been in existence, and had since then, or for at least seven years prior to June 1885, enjoyed uninterrupted peaceable possession and use of this piece of ground for the purpose of golfing or putting. They stated that on or about the “13th day of June 1885 the defender [who was a householder in St Andrews, and was admittedly not a member of the Ladies' Club], after being duly warned by Thomas Morris, golf-club maker, St Andrews, the custodier of the said [Ladies'] golf course, golfed or putted over the said piece of ground or golf course, and refused to desist although requested by Morris to do so.”

They craved the Court “to interdict the defender from golfing or putting” on the said piece of ground, “or in any other way interfering with or disturbing the pursuers and the members of the St Andrews Ladies' Golf Club in the possession of the same.”

The defender averred that it was ultra vires of Mr Cheape and the tenant to let the Pilmour Links for the purpose of giving any person a private right over any part of them, maintaining that the inhabitants of St Andrews had a right to the ground in question for bleaching and recreation, including golf, which they had exercised from time immemorial.

He referred to the history and titles of the St Andrews Links, from which it appeared that on 4th December 1799 the Magistrates of St Andrews granted a feu-disposition of the greater part of St Andrews Links, otherwise called Pilmour Links, including the ground in question, to Messrs Charles and Cathcart Dempster, Mr Cheape's authors, with the following reservations—“Reserving always to the town of St Andrews the whole ground to the eastward of the Swilking Burn, which burn is hereby declared to be the boundary betwixt the subjects now sold and these hereby reserved; as also reserving the bleaching-ground to the west thereof, as particularly marked out by march-stones placed therein, on which the inhabitants of St Andrews are to have the liberty and privilege of bleaching in all time coming; as also reserving to the burgesses of said city standing on the stent-roll allenarly power and liberty to cast and winn divots upon the said links and commonty for flanking and rigging, conform to use and wont, as also for repairing the town mill-leads and dams, under the reservation always that no hurt or damage shall be done thereby to the golf links, nor shall it lie in the power of any proprietors of said Pilmor Links to plough up any part of said golf links in all time coming; but the same shall be reserved entirely as it has been in the time past for the comfort and amusement of the inhabitants and others who shall resort thither for that amusement.” He stated that the Links now belonged to Mr George Cheape of Strathtyrum under this title as successor of the Dempsters, and that the inhabitants of St Andrews, of whom he was one, had a right to play over the whole of St Andrews Links, including the ground in question, and not merely over the portion of them reserved as the golf course.

The pursuers on the other hand maintained that the Links of St Andrews or Pilmour Links extended to about 280 acres, but that the golf course or golf links, over which the inhabitants had a right to golf, extended to 10 or 12 acres, and had been specially marked off by march stones at a date prior to 1821. The ground in question lay to the eastward of the golf course so marked off.

The pursuers pleaded—“(2) The pursuers and the St Andrews Ladies' Golf Club having been tenants of the ground in question, and having enjoyed uninterrupted, peaceable, and exclusive possession thereof for golfing or putting since the institution of the club in 1867, or for at least seven years prior to 13th June 1885, they are entitled to a possessory judgment.”

The defender pleaded—“(4) The ground in question forming part of the Links of St Andrews, otherwise called Pilmour Links, having been conveyed to Mr Cheape's predecessor, and being held by him under the condition that no part of said golf links should be ploughed up at anytime, but that the same should be reserved entirely as it had been in times past for the comfort and amusement of the inhabitants of St Andrews and others who should resort thither for that amusement, it was ultra vires of Mr Cheape to grant the lease conferring the exclusive right of golfing or putting on said ground on the members of the St Andrews Ladies' Golf Club, and such other persons as the said club might allow, and the

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same must therefore be held pro non scripto. (5) The inhabitants of St Andrews and others having enjoyed the right of bleaching clothes, of walking, of playing golf, and of otherwise amusing themselves on the ground in question from time immemorial, the pursuers are not entitled, by interdict or otherwise, to prevent the defender exercising these rights.”

It appeared that the defender had on the occasion complained of putted on the ground in question, after calling the attention of the custodier of the green to what he was about to do, in order to raise the question in dispute.

Interim interdict was granted by the Sheriff-Substitute, and thereafter by the Sheriff, in the terms mentioned by the Sheriff at the close of his note, infra. An appeal was taken to the First Division of the Court of Session for jury trial, in which issues were ordered to be lodged. The appeal was on 6th January 1886 refused, and a remit was made to the Sheriff to proceed. The Sheriff-Substitute had declined.

Thereafter a proof was taken before the Sheriff ( Mackay), the import of which appears from the interlocutor and note of the Sheriff, and the opinions of the Judges infra.

On 6th November 1880 the Sheriff, having viewed the Links, and in particular the piece of ground in question, pronounced this interlocutor:—“(5) That the piece of ground in question, although situated within that part of the Links now commonly called the St Andrews or Pilmour Links, which form a portion of the subjects contained in the feu-disposition of 1799, is entirely outwith the ordinary golf course marked out on the Links at some date prior to the year 1821, and also outwith the course now used, which, with one or two deviations in the form of widening the course, is the same as that so marked out; (6) that some portion of the said piece of ground in question was at one time used for the purposes of bleaching in respect of the servitude of bleaching contained in the title of the proprietor of the Links, but that the practice of bleaching has considerably diminished in recent years, and so far as regards the ground in question, practically has ceased for nearly twenty years; (7) that no person has come forward to assert the claim of the inhabitants to any part of the ground in question for bleaching purposes, and that there are neither the parties nor the materials in the present process necessary for defining the extent of the bleaching servitude; (8) that the defender has not proved possession, by himself or any of the inhabitants of St Andrews, of the piece of ground in question for the purpose of playing the short or putting game of golf, or any possession by him or them of such a kind as to restrict the proprietor from granting the exclusive use thereof to the pursuers' club for the purpose of playing the said short or putting game; (9) that the defender has not proved that the use of this piece of ground for the purpose of the short or putting game is inconsistent with, or will in any way interfere with, the ordinary and habitual practice of the game of golf as played from time immemorial, or, at all events, for much more than the prescriptive period, by the inhabitants of St Andrews and others, on the golf course and parts of the Links adjacent thereto: In these circumstances, finds in law that the pursuers are entitled to interdict against the defender: Recals the interim interdict granted on 21st July 1885, and in lieu thereof interdicts the defender from playing the putting or short game of golf on the piece of ground described in the prayer of the petition, or from in any other way interfering with or disturbing the pursuers and the members of the St Andrews Ladies' Golf Club in the possession or occupation of the said piece of ground for the purpose of playing the putting or short game of golf: Finds the defender liable in expenses.

“ Note.—This is a petition for interdict against the defender golfing or putting on a part of the Links of St Andrews belonging in property to Mr Cheape of Strathtyrum, and let by him to the pursuers, the St Andrews Ladies' Golf Club. The defender, who is an inhabitant of St Andrews (for the plea against his title has been waived), claims as such a right to golf on any part of the Links, and to use any holes, by whomsoever and wherever made, for the purpose of the game. He accordingly played on the occasion referred to in Cond. 4, upon the ground here in question, and was turned off by Thomas Morris, who has been employed since the commencement of the Ladies' Club in 1867 to take charge of the ground for it. He still asserts his right to play the putting game at this place although not a member, and without the leave of the club, and the present action has been brought to prevent him. His defence is founded upon a reservation contained in the title of Mr Cheape, whose author Dempster acquired this part of the Links which lies west of the Swilkin Burn under the reservations quoted in the first finding of the interlocutor. The reservation in favour of golfing is that which the defender specially seeks to vindicate for himself and the other inhabitants. But he refers to the other reservations, and specially that in favour of bleaching, in support of his argument. He also led proof as to the possession for the prescriptive period in support of his construction of the title.

“The pursuers put their case chiefly—indeed, almost exclusively—upon their right to a possessory judgment, but their proof also covered the prescriptive period. They have a lease from the late Mr Cheape of Strathtyrum of the piece of the Links in question, for the purpose of golfing or putting by the members of the St Andrews Ladies' Golf Club, ‘and by such other persons as the said club may allow,’ but under an exception of any portion over which the inhabitants of St Andrews may be entitled to exercise the liberty and privilege of bleaching, and a declaration in favour of the burgess' right of casting and winning divots according to use and wont. Prior to their entry at Martinmas 1880 under this lease, the term of which is seven years, the Ladies' Club had possessed the ground for five years under a missive offer dated ‘March 1868, agreeing to take the ground in question (or almost the whole of it) for the purpose of golfing and putting by the members of the Ladies' Golf Club, and by such other persons as the club may allow, for five years from Martinmas 1867.’ Tacit relocation followed on the expiry of the five years down to the commencement of the present lease. It is contended by the pursuers that their possession has been in conformity with the leases, and that the Ladies' Club has had exclusive possession for the special purpose claimed since its formation in 1867, and certainly for the

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last seven years. A lease is a sufficient prima facie title to support a possessory judgment, and on the question of possession the Sheriff is of opinion that the pursuers have proved exclusive possession of sufficient quality for such a judgment— Hume v. Scot, Dec. 1, 1676, Mor 10, 641; Young v. Cunningham, June 22, 1839, 8 S. 959; Anderson v. M'Callum, Nov. 3, 1857, 20 D. p. 2; Begbie & Co. v. France, Nov. 24, 1857, 20 D. p. 81. It is needless to go into the details of the proof. There is undoubtedly evidence of toleration of play by others, and a good deal of play appears to have gone on at times and seasons when the members of the club were not playing. But it is very clear that the only habitual and regular play in assertion of a right was by the members of the club, and there was constant practice of challenge when strangers or persons ignorant of the club rules played so as to interfere with the members of the club. No one refused to leave when challenged, according to the evidence of Thomas Morris, and his evidence on this point is confirmed by the pursuers' other witnesses, and not contradicted by the defender's. The evidence as to the players of the ordinary game following their ball when it lit on the ground in question is irrelevant, for this is not the right either asserted or denied in the present case. The right asserted is a right to use the holes made and the ground prepared by the Ladies' Club for the short or putting game. If the case had been one of heritable property, the Sheriff would therefore have held the pursuers clearly entitled to a possessory judgment.

“But the question relates to a servitude. No doubt the point has been mooted whether the right of golfing is a proper servitude, and there may be cases where it is, strictly speaking, rather a qualification or condition of a trust title like that of the magistrates for behoof of the community, but where, as here, it is imposed by reservation on the property title of a third party in favour of the inhabitants of a burgh, there is a dominant and servient tenement, the latter of which is subject to a burden in favour of the former, restricting to that extent, but not otherwise, the right of property. This is just a description of a real servitude, and there appears no reason why it should not be called by that name. It is in fact included in the category of servitudes both by Judges and legal writers in modern times. It was not a servitude known to the Roman law, but it has become well known in Scotch law, and though its character differs from ordinary servitudes in respect that its immediate object is amusement merely, it does not appear to differ in any other essential respect.

“Now, the Sheriff Court Act of 1878 extends the jurisdiction of the Sheriff to questions touching either the constitution or the exercise of real or prædial servitude, and it was held in Gow's Trustees v. Mealls, 28th May 1875, 2 R. 729, that where it was competent for the Sheriff to decide on the merits on a claim for servitude, it was incompetent for him to decline and confine himself to merely a possessory judgment. The question of the merits was raised in that case by the pursuer, and it is here raised by the defender, but the proprietor's titles have been produced, and proof has been led relative to the prescriptive period as well as to the possessory period. It may be a disadvantage for the defender that no decision in the present case will be res judicata in a question with the proprietor of the Links, but it is the defender who asks for a judgment on the effect of the titles and prescriptive possession. No motion has been made by him to have the proprietor sisted, or intimation made to him of the present process. The Sheriff, though with some difficulty, has come to be of opinion that he is not entitled to decline to consider the larger question which the defender has raised. The case appears to come within the rule stated by the Lord Justice-Clerk in Gow's Trustees;—‘When a possessory judgment regarding an heritable right is made the foundation of action in the Sheriff Court, it is implied that the Sheriff is not in a position to settle the ultimate dispute between the parties, but he can only regulate possession ad interim until the parties have obtained a decision of the Supreme Court on the merits of their case. But here the question is one of servitude; the Sheriff is competent to deal with it unreservedly, and ought to have entertained and disposed of the merits of the question.’

“It at one time occurred to the Sheriff that as a declarator before the Supreme Court would undoubtedly have been a more appropriate mode of settling the question as to the exact limits of the rights of property and servitude respectively in this portion of the Links, and as neither the Magistrates of St Andrews nor the proprietor of this part of the Links are parties to the present proceedings, he might, without deciding the case expressly upon the possessory judgment, hold that the status quo should be preserved until a declarator had been brought. But to decide nothing except the question of the appropriate form of action would scarcely be satisfactory to anyone, and certainly not to the defender. It is not his fault that, contrary to the more usual practice, the interdict process has been brought in the name of the tenant only, without the concurrence of the landlord. The parties have supplied the Sheriff with materials and argument sufficient to decide in a question, at all events with the defender, the issue he has raised, and the Sheriff has felt bound to decide it. His opinion is that the servitude of golfing imposed upon the property title of the Links is not such as to prevent the proprietor from granting the possession of the portion here in question to the pursuers' club for the purpose of playing the short or putting game, to the exclusion of its use for that purpose by the defender as an inhabitant of St Andrews, so long as the possession so granted does not interfere with the ordinary course of the game on the Links as played by golfers generally, and required for the number of persons who are in the habit of playing. The Sheriff further thinks that the evidence of possession during the last forty years is not in the least inconsistent with, but on the contrary confirms, this view of the title.

“It was contended for the pursuers that the ‘Golf Links’ in the proprietor's titles were not identical with the Pilmour Links, and did not include the piece of ground in question, which is admittedly outwith the golf course, as pointed out by the stones placed there prior to the year 1821, and they tried to limit the term ‘Golf Links’ to the ‘Golf Course.’ There is certainly room for argument on the question whether the

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Golf Links are not a more restricted area than Pilmour Links in the widest sense of the term. But for the purpose of this case it is sufficient to say that, in the opinion of the Sheriff, the term ‘Golf Links’ cannot be restricted to the ‘Golf Course,’ or strips of the Links varying from 72 to 195 yards in breadth, marked out by stones, on which the ordinary game is generally played. A golf course is not like a race course, a limited space, passing beyond which is the loss of the game. It happens frequently with bad players, and sometimes in bad weather with good, that the ball falls outside of the course. This, in fact, is one of the hazards of the game, and the practice of following the ball wherever it falls on the Links has always been allowed, and is the only penalty on the unskilful or unfortunate player. The title from the burgh in favour of Mr Cheape's authors is quite wide enough to cover under the expression ‘Golf Links’ the whole Links on which any part of the game is played, in the manner in which it is played, according to use and wont, and this includes a much larger tract of ground than the course proper, and cannot be held to exclude in this sense that part of the Links here in question where the ball has frequently to be followed. But it does not follow that the extent of the servitude over the Links outside the golf course and that over the course itself is the same. This point was very carefully considered in the recent case of Paterson v. The Magistrates of St Andrews, 27th July 1881 (H. of L.), 8 R. 117, particularly by Lord Watson. That learned Lord observed—‘Then it is said you must leave untouched everything outside of that course which can be shewn to be a part of the Links to which a ball may be driven in playing the game of golf. I entirely demur to that proposition. The contention to which I am prepared to give effect really comes to this, that whatever is outside of the proper golfing course may be turned to various purposes so long as these are not inconsistent with the game of golf.’ If this observation had been merely an obiter dictum of so distinguished a lawyer, it would have been entitled to the highest respect, and the Sheriff would have been very slow to decide anything which could conflict with it. But it was in reality the ground of judgment in that case, which is a binding, and the Sheriff thinks a conclusive, authority on the present. For the decision in that case was that the Magistrates of St Andrews were entitled to use or allow the use of a portion of the Links outside of the proper golf course for the purpose of a road, so long as this use did not interfere with the game of golf, to which that part of the Links, including the site of the road, had been dedicated by immemorial usage. It is true that case related to part of the Links east of the Swilkin Burn retained by the Magistrates, and not to the part here in qnestion, which they have alienated to a third party. It is settled law, and was assumed by all the Judges both in the Court of Session and House of Lords, that such alienation, if absolute and total, as in the case of feus for houses, though open to challenge prior to the year of prescription, was not so after they had run. Here the alienation to Mr Cheape's author was not absolute or total, for while the Magistrates in 1799 transferred the property, they reserved certain uses for behoof of the inhabitants, one of which was golfing, as the inhabitants had exercised it, according to the use and wont of such exercise. It necessarily follows that the measure of the burden or restriction on the property of their disponee is precisely the same in extent as the qualification of their own title prior to the disposition. The use of a portion of the Links as a private or semi-private ground for the practice of the short or putting game, without interfering with the right of the golfers to follow their balls outside of the course, cannot be said to be in any way inconsistent with the game of golf as habitually played on the Links. If the defender had considered this case, the course of which was followed with great interest by the golfing public, and its necessary consequences, the Sheriff cannot help thinking that he would not have challenged the present proceeding, in which, though nominally defender, he is really the pursuer, for on the occasion referred to in the pleadings and proof he played or attempted to play the putting game on this ground for the purpose of being, and with the knowledge that he would be, prevented.

“It is unnecessary to enter minutely into the evidence of possession during the prescriptive period. The Sheriff does not doubt that, with such titles as are here in question, a servitude right might be modified either by extension or restriction, upon clear proof that there had been the exercise of a wider right by the persons entitled to the servitude, or a further limitation of the right of property by the owner of the property subject to it. But there is no evidence whatever adduced by the defender to shew that the proprietor of the ground, who prima facie on the titles has the whole uses not reserved, was restricted de facto by the exercise of such a right as the defender here claims. His claim amounts to this, that any inhabitant of St Andrews might make on any part of the Links outwith the golfing course a set of holes for the purpose of playing the short or putting game, without the consent of the proprietor of the ground. Nothing of this sort has ever been attempted. The ground was open, and no one was prevented from walking on it. Games, such as football and cricket, which are played on the surface and require no operations on the soil by digging, were challenged, though not always with complete success, by the Strathtyrum watchman, Robert Hunter. But no one tried to play the short game of golf at this place, which implies cutting holes in the ground, and dressing and preparing the green, until the pursuers' club did so with the sanction of the proprietor and the grazing tenant. It would be a more delicate question whether, if the number of players, or possibly improvements in the game, required an extension or enlargement of the course, this might not be claimed on the part of the inhabitants; but no such question has been raised. Apart from the decision in the case of Paterson the view of the law to which effect has been given in the present judgment derives strong support from the opinion expressed by Lord Eldon in the case of Dempster v. Cleghorn, Nov. 29, 1813, 2 Dow's App. 40, as to the links here in question, and the procedure adopted by the Court of Session in the case of The Magistrates of Earlsferry v. Malcolm, June 12, 1829, 7 Sh. 755, and Nov. 23, 1832, 11 Sh. 74.

“In the case of Dempster there was no final decision,

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but Lord Eldon's opinion, when he remitted the case to the Court of Session, was very adverse to any limitation of the proprietor's right of property, except what was established by the actual exercise of the servitude right.

“It appears probable from the evidence of Mr Grace in the present case that the defining the course by stones may have been a consequence of that remit, and of some arrangement between the parties as to the course upon which the game was to be played. This, however, is not established by proof, and all that is certain is, that no further judicial proceedings were taken by the pursuers to limit the proprietor's right. As to the decision in the Court of Session ( Cleghorn v. Dempster, Morison, 16, 141), which was practically superseded by the remit, it may be observed that it proceeded upon the basis, whether well or ill-founded, that the golf ground had been damaged by the rabbits of the proprietor, that is to say, damaged for the purposes of golf. There is no room in the present case for pretending that there has been any damage done by the use the proprietor has granted of a portion of the Links to the Ladies' Club. In the Earlsferry case, 7 Sh. 755, in which it was decided that the burgh of Earlsferry had a servitude of golfing over the Ferry Links, the property of which was claimed by Malcolm, the Court itself took the necessary steps for marking out a course. A remit was at first made ‘to Mr Jameson, then Sheriff-Substitute of Fife, to settle the best and most convenient track for the exercise of golfing,' and the burgh having thereafter objected to his report, and craved a new remit to experienced golfers, ‘the Court remitted to Messrs Walter Cook, W.S., and John Taylor, Attorney in the Exchequer, to examine the ground in question, to lay out a proper course thereon sufficient for the due exercise of that amusement, having a due regard to all the circumstances of the case, and to the mutual rights and claims of the parties’ (11 Sh. 74), and their report being returned the Court decerned in terms of it.

“The defender raised a side issue, which, although it bulked a good deal in the proof and argument, is of a somewhat singular character. He contended that part, or possibly the whole, of the ground now used by the Ladies' Golf Club was subject to the servitude of bleaching, and had been constantly used for that purpose, and that it was impossible that the short game of golf could be played consistently with the exercise of the servitude of bleaching. The result of success in this argument would be to exclude not only the Ladies' Club but also the defender from the ground, or so much of it as is subject to the bleaching servitude, although the object of the defender is to obtain for himself and the other golfers the right to play the short game there. There is undoubtedly a servitude of bleaching on part of the Links, and one of the reservations in the title of Mr Cheape's author is of the bleaching ground to the west of the Swilkin Bum, as particularly marked out by march-stones placed therein, on which the inhabitants of St Andrews are to have the liberty of bleaching in all time coming. The proof as to bleaching, shortly, was that about twenty years ago there was a good deal of bleaching on both sides of the Swilkin Burn, and, in particular, on a part of the ground now used by the Ladies' Golf Club, which went by the name of the dining-room, as marked on plan No. 39 of pro., and probably also on other convenient spots within that ground. The neighbourhood of the burn from which water was got naturally made this a suitable place for bleaching.

“The evidence as to the march-stones defining the bleaching ground is by no means clear and consistent. Some of them have been removed, and there is a conflict about at least one still extant, whether it was a march-stone of the bleaching-green. It would be a waste of time to go into minutiœ on these points, but the Sheriff thinks that the three stones in a line still remaining tend to confirm the fact deducible from the other evidence that a part of the ground in question had been used for bleaching. They indicate the line, or a portion of the line, of the south boundary, and the Swilkin Burn may be taken as the east boundary in a question with the proprietor of this part of the Links. But the northern and western boundaries are not made out by existing march-stones or any other clear evidence. The parties described the boundaries in this way, as the Swilkin Burn is called the east boundary in the titles, and the Sheriff has followed their example, although more strictly, according to compasses, this part of the burn would be called the south boundary, and the other boundaries relatively altered. If this case had been a declarator to establish the extent of the bleaching area it would probably have been necessary to dismiss it for want of sufficient evidence. But no such declarator has been raised. On the contrary, the persons interested in the servitude of bleaching have from motives of good neighbourhood or policy abstained from interfering with the sport of the Ladies' Club, and changed to some extent the part of the Links used for bleaching. The bleaching here practised was never for wholesale or manufacturing purposes, but only for family purposes. The old-fashioned mode of exposing clothes or linen for a considerable period in the open air, to whiten the colour, has gradually become little more than ordinary washing and drying. Other sources of water supply and facilities for washing have to some extent lessened the use of the Links for this last purpose, but it is still practised to a considerable extent. Those practising it probably suffer a little inconvenience from now using part of the. Links somewhat further from the burn, but, on the other hand, they are nearer the whins on which the clothes are dried. While the Sheriff thinks it right so far to explain the practice disclosed by the proof led in this case, he feels bound, in the absence of the proper parties raising the proper issue, not to express any opinion as to the local limits of the servitude of bleaching, or how far these might be altered by custom short of the years of prescription, or be subject to regulation by the Court. He thinks it enough to say for the disposal of this part of the case, that the defender is not here vindicating the right of the inhabitants of St Andrews to a bleaching ground, but is asserting a right to play golf in a particular way on a portion of the Links outside the ordinary course. His right to do so either upon the titles alone or upon the titles and prescriptive possession are the issues which he has raised, and, in the opinion of the Sheriff,

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failed to establish. A special argument with reference to the bleaching servitude was founded. upon the terms of the pursuers' lease, which excepts from “the ground let any portion over which the inhabitants of St Andrews may be entitled to exercise the liberty and privilege of bleaching under the feu-rights of the said Links granted by the town in favour of the proprietor's authors and predecessors, and declares that the said inhabitants shall not be interrupted or molested in exercising such liberty and privilege.” It was argued upon this clause that the present pursuers had no title to sue, in so far as the ground used by them, or part of it, was de facto part of the portion of the Links subject to the servitude of bleaching. This no doubt is the most plausible mode of bringing the bleaching question into the present case. It must be kept in view, however, that bleaching is not practised at all times and seasons, and possibly the clause of exclusion may be qualified by the declaration of its purpose, namely, “to prevent the inhabitants from being interrupted or molested in exercising the privilege of bleaching.” But however this may be, the clause was evidently inserted for the benefit of persons claiming the bleaching privilege, and for the protection of the proprietor in case any claim was made by them. No claim has been made, and the present judgment will not affect such claim if made by the proper parties. The present position of matters is that the ground in question is not used for bleaching. There are not, as explained in a former part of this note, materials in the present process for defining the limits of the bleaching servitude. Nor is this the proper process for doing so. In these circumstances it does not seem legitimate to the Sheriff for the present defender to use this clause as a defence to the present action. The pursuers are therefore, in the opinion of the Sheriff, entitled to interdict, but the terms in which it is to be granted require careful consideration. The prayer originally was to interdict the defender from “trespassing and golfing or putting” on the ground in question, or in any other way interfering with or disturbing the pursuers and the members of the St Andrews Ladies' Golf Club in the possession of the same. The words “trespassing and” were deleted by amendment before the record was closed, and the pursuers explained at the debate that by the word “golfing” was meant only putting or playing the short game. An interdict should, however, be free from any possible ambiguity, and the right of following the ball in the ordinary game is not intended, any more than walking on this part of the Links, to be prohibited. The only things which the defender is prohibited from doing are playing the short game at the set of holes and on the ground prepared and kept up by and at the expense of the Ladies' Club outwith the ordinary course, and from interfering with the members of the Ladies' Club in their play. The interdict will accordingly be slightly modified in its terms. The Sheriff has considered whether this modification and the original prayer having been too wide should lead to any modification of expenses, but the defender having failed in the substantial issue in the case, which he himself raised, the Sheriff is of opinion that he must bear the whole expenses.”

The defender appealed to the Second Division of the Court of Session. On the case appearing in the Single Bills Lord Young intimated an opinion that the appeal should have been to the First Division as the case had been there formerly. The case was, however, sent to the roll.

The appellant argued—Mr Cheape had no title to give a lease to any private person or club of any part of the Links of St Andrews so that the lessee should have the right to keep any member of the public from using and enjoying the whole Links subject to the reservations in the title and Mr Cheape's right of letting the pasturage. The public had a right over the Golf Links for their comfort and amusement, and the term Golf Links included the whole of Pilmour Links. A party could not plead against his own title. Mr Cheape's title was granted under reservation of the whole Links for the amusement and comfort of the inhabitants of St Andrews— Grahame v. Magistrates of Kirkcaldy, June 19, 1879, 6 R. 1066. There was no inconsistency between the decision in the case of Paterson and the judgment which the appellant sought here, as in that case the decision was given on the ground that the interference with the Links was for the public benefit, while here the pursuers sought to exclude the public from the Links— Paterson, &c., v. Magistrates of St Andrews, &c., March 10, 1880, 7 R. 712; affd. 8 R. (H.L.) 117. The respondents could not obtain any higher right from Mr Cheape than he himself had, and the bleaching-ground was expressly reserved in the Dempsters’ title from the Magistrates. It was shown by the proof that the bleaching-green formed a great part of the piece of ground said to have been given to the Ladies' Golf Club under this lease, but the reservation in the original title was a reservation of the ground and not merely of the use of it. Therefore Mr Cheape could not validly lease this portion of the Links to a private association— M'Kerron, &c., v. Gordon, Feb. 15, 1876, 3 R. 429; Sanderson v. Magistrates of Musselburgh, Nov. 25, 1859, 22 D. 24.

Argued for the respondents—The question comes to be, whether the piece of ground described in the lease of 1881 is or is not part of the golf course? It is not. There is a distinction to be made between Pilmour Links and the Golf Links. The latter is only about 12 acres in extent, while the former is 280 acres. The public have a right of golfing over the Golf Links, but they have no right over the other parts of the Links, although they are not usually interfered with. There is no right of amusement or comfort as spoken of in the original feu-charter except over the golf course. The rights which were given by the Magistrates of St Andrews to the Dempsters have now been confirmed by prescription. Even if the right of golfing had originally extended over the whole of the Links, the case of Earlsferry showed that the right could be restricted to a particular course— Dempster v. Cleghorn, Dec. 31, 1813, 2 Dow's App. 40; The Magistrates of Earlsferry v. Malcolm, June 12, 1829, 7 S. 755, and Nov. 23, 1832, 11 S. 74; Dyce v. Lady James Hay, July 10, 1849, 11 D. 1266. With regard to the bleaching question, that could only come up in a question as to Mr Cheape's title, which really was not under consideration here, as all that was asked was a possessory

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judgment. Here the Ladies' Golf Club had been in existence for 20 years, and the members had for that time played the short game over the same ground, first under a lease, then they held the ground by tacit relocation, and finally they got a lease in 1881, and their right to the use of the ground had never been challenged. That was sufficient to entitle them to a possessory judgment.

At advising—