Scottish Court of Session Decisions

The Rev. A. M. Hewat, B.D., minister of the parish of Tranent, first party; J. R. Wilson, coalmaster, Musselburgh, second party; and the heritors of the parish of Tranent, third parties, presented a Special Case, the subject-matter being the coal in the glebe of the parish of Tranent.

The case stated—“2. Coal exists in or under that portion of the glebe lands known as the ‘west glebe,’ lying adjacent to the estates of Bank Park and Bankton, and extending to seven and two-thirds acres or thereby. The amount of said coal is too small to admit of its being profitably worked as a separate venture. The only possible method of having the same worked is by some adjacent coalowner or lessee, having a larger field and pit sinkings of his own. The said coal can be worked out completely in a few years.

3. In August 1902 a lease of the coal of said glebe lands was granted by the Reverend William Cæsar, Doctor in Divinity, then minister of the parish of Tranent, in the presbytery and county of Haddington, with the consent and approval of the heritors of said parish and the presbytery of Haddington, to the Forth Collieries, Limited, incorporated under the Companies Acts 1862 to 1898; but, in virtue of a break in said lease, it was relinquished in 1907 by the said Forth Collieries Limited.

4. After the relinquishment of said lease, the party of the second part, who is an adjacent coalowner, made an offer to the party of the first part to lease said coal, which offer, on being laid before the heritors, was rejected. The party of the second part thereupon entered into negotiations with the party of the first part with a view to the sale of said coal to him, and by arrangement a report was obtained as to their value from Mr John Gemmell, mining engineer, Edinburgh, on 7th August 1908. Mr Gemmell reported that the present

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market or selling value of the coal in said glebe lands was £1165, and that ‘if the coal is sold the purchaser should be granted the seller's rights to work, win, raise, and carry away the same, and to lower the surface of the ground on paying or settling all damage of every kind caused by his operations, and keeping the proprietors of the glebe scaithless of all claims that may be made upon them in connection therewith—the purchaser not to be liable for damage done to houses or buildings that may be erected on the glebe unless such damage is caused by operations carried on by him subsequent to the first twenty years.’ The parties of the first and third parts are of opinion that said report is independent and accurate, and that the said sum of £1165 is the fair value of said coal.

5. The party of the second part, after considering the said report, on 12th August 1908 offered to purchase the coal in the said, west glebe lands, extending to seven and two-thirds acres, for the sum of £1165, upon the terms and conditions stated in the valuation made by Mr Gemmell, the price to be paid on delivery of a valid title and a clear search.…

6. The offer by the party of the second part to purchase said coal was laid before the parties of the third part on 19th September 1908, who approved of the party of the first part selling the minerals to the party of the second part, in terms of the valuation and the report, subject to the validity of said sale being judicially determined. Said offer and the documents relating thereto were thereafter laid before the presbytery of Haddington, and, at the meeting of said presbytery on 27th October 1908, on a report of a committee, the sanction of the presbytery was given to the proposed sale of the coal by the party of the first part, and to any proceedings which might be necessary in connection therewith. It is proposed that the sum realised from the sale of said coal should be invested at the sight of the said presbytery of Haddington and the parties of the third part, and that the annual interest or proceeds thereof should be made payable to the party of the first part and his successors in office.…”

The questions of law were—“(1) Whether the proposed sale of the coal lying in the said glebe lands of the parish of Tranent is legal, and may be carried out by private bargain? (2) Whether, in the event of the sale being concluded, the said sum of £1165 falls to be invested at the sight of the said presbytery and the parties of the third part, the interests and proceeds to be paid to the party of the first part and his successors in office,”

Argued for the first party—Minerals under glebe lands might be of very considerable value, and there was no reason why they should not be abstracted, if it could be done without injuring the agricultural value of the glebe. Though there was no case absolutely on all fours with the present, a lease of minerals under a glebe had been held to be competent— Galbraith v. Minister of Bo'ness, October 27, 1893, 21 R. 30, 31 S.L.R. 25. A lease of minerals was just a gradual sale. No doubt a minister could not appropriate any part of the solum of the glebe to the prejudice of his successors, but his beneficial interest in the glebe was not limited to its annual natural fruits— Mercer v. Minister of Lethendy, 1794, referred to in Minister of Newton v. The Heritors, 1807, M. voce Glebe, App. No. 6; Duncan's Parochial Ecclesiastical Law (Johnston's Edit.) p. 477. The minister could work the minerals of the glebe— Minister v. Heritors of Newton, cit. He had also been found entitled to dig peats from the glebe for the use of his family— Mercer v. Minister of Lethendy ( sup. cit.)

Argued for the third parties—The only difficulty the heritors had was as to the form of the bargain. This was a sale. Sale of glebes was prohibited by Act of Parliament—Act 1572, cap. 48. Because a minister could lease the minerals under his glebe, was he by inference entitled to sell them? Minerals under the glebe were partes soli, and therefore could not be sold—Lord Monboddo in Reay v. Falconer, 1781, 2 Hailes, 890. The Glebe Lands (Scotland) Act 1866 (29 and 30 Vict. cap. 71) did not authorise sale.