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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Anderson and Others v. Minister of Rutherglen [1913] ScotLR 582 (21 February 1913)
URL: http://www.bailii.org/scot/cases/ScotCS/1913/50SLR0582.html
Cite as: [1913] ScotLR 582, [1913] SLR 582
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SCOTTISH_SLR_Court_of_Session
Page: 582↓
Court of Teinds.
Before the
v.
Facts:
In an application by heritors for transportation of a manse and for authority to sell the old manse and the site on which it stood and to apply the proceeds thereof towards the expense of providing a new manse, the minister objected to the proposed sale on the ground that the site of the old manse formed part of the glebe lands.
Held, in the absence of proof to the contrary, that it must be presumed that the old manse was builton manse ground and not on glebe ground, and that the heritors were entitled to sell the site.
This was a petition by James Anderson and others, who were duly authorised to represent the heritors of the parish of Rutherglen, for authority (1) to transport the manse, offices, and garden from the present site to a new site; (2) to sell the site of the old manse, offices, and garden;
Page: 583↓
and (3) to apply the proceeds thereof pro tanto towards the expense of buying the new site and erecting and forming thereon a new manse, offices, and garden. It was stated, inter alia, in the petition—“The present Manse of the parish of Rutherglen, offices, and garden, containing 2958
square yards or thereby, have been the Manse, offices, and garden for the minister of the parish of Rutherglen for several hundreds of years. The glebe, arable and grass, of Rutherglen consists of (1) a piece of ground situated beside Rutherglen Burn at some distance from the Manse, and extending to 4 acres 2 roods or thereby, and (2) another piece of ground lying in the immediate vicinity of the Manse, and extending to 1 acre 1 rood or thereby.” 4 9 The Rev. George S. Yuille, the minister of the parish, lodged answers in which he, inter alia, stated —The glebe of the parish of Rutherglen, together with the minister's grass, consists of (1) a piece of ground which lies on the west side of the Rutherglen Burn at some distance from the Manse, and extends to 4 acres 2 roods or thereby; (2) a piece of ground on the east side of the said burn which extends to 1 acre 1 rood or thereby; and (3) a piece of ground which extends to 2 roods 17 poles 23
square yards or thereby, and is contiguous to the piece of ground second above mentioned. 7 36 “The Manse of the parish of Rutherglen with its offices and garden is situated on, and completely covers, the piece of ground third above mentioned. It is admitted that the said Manse has occupied its present site for a long period. The said site was occupied by the said Manse many years before the right of a parish minister to half an acre of ground over and above his glebe as a site for his manse came into existence. In any event, the said site was so occupied long before the said right was recognised. Further, Rutherglen is, and has been for several centuries, a royal burgh. The right of the minister of a royal burgh, which, like Rutherglen, is partly landward, to a manse, was not decided till the beginning of the nineteenth century. In a number of cases during the eighteenth century the Court rejected claims to manses by ministers of royal burghs in this position. The right of the minister of any royal burgh, whether partly land ward or not, to half an acre of ground over and above his glebe as the site for his manse, could not therefore have been recognised prior to the beginning of the eighteenth century. The Manse of the parish of Rutherglen, in accordance with the views prevailing at the time it was built, was erected upon the glebe, and the site it now occupies is part of the said glebe.… The respondent does not object to the petitioners selling the materials of which the said Manse and offices are composed.”
The respondent, while not opposing a finding as to the expediency of transporting the manse with decrees following thereon, pleaded—“(1) That the petitioners' averments are irrelevant and insufficient to support said prayer; (2) that the ownership of the present site of the said manse, offices, and garden is in dispute, and that it is incompetent to try that question in this process; and (3) that in any event the said present site is part of the glebe of the parish of Rutherglen, and does not therefore belong to the heritors, or any of them.”
Argued for the petitioners—(1) On competency. The question at issue was quite properly raised in the Court of Teinds, which was not a separate Court but merely a branch of the Court of Session, and entitled to exercise the full jurisdiction of the latter— Presbytery of Stirling v. Heritors of Larbert and Dunipace, February 2, 1900, 2 F. 562, and per Lord Kinnear at p. 568 et seq., 37 S.L.R. 455. The petition here was in ordinary form and according to precedent—Connell's Parochial Law, p. 229. (2) It was admitted by all parties that it was expedient to remove the manse, and it was usual in such cases to apply the price realised for the old manse towards the cost of the new one. The site had been occupied by the manse for centuries, and the presumption was against its being situated on glebe. In any event, no relevant averment had been made by the minister that it was built on glebe. Even if originally built on glebe the site became designated to manse and ceased to be part of the glebe— Gloag v. Heritors of Galashiels, November 17, 1873, 1 R. 187. Rutherglen was a royal burgh and a landward parish, and it was only in 1812 that it was finally decided that a minister of such a parish was entitled to a manse— Heritors of Dunfermline v. M'Lean, November 19, 1805, Fac. Col. and Mor. Appendix 1, No. 1, s.v. Manse, aff. March 9, 1812, 5 Paton 593, Duncan's Parochial Law, p. 367, Connell's Parochial Law, p. 261 et seq. The manse in question having been built long before 1812, as shown by Fairie v. Leach, February 2, 1813, Fac. Col., it must have been provided by the heritors as a matter of grace. Counsel referred to Duncan's Parochial Law, p. 353 et seq., and the New Statistical Account, vol. vi. p. 395.
Argued for the Respondent—(1) It was not competent to decide this question in a summary process of petition. It ought to have been raised in a declarator in the Court of Session. The case of Presbytery of Stirling v. Heritors of Larbert and Dunipace, supra, only dealt with the question of jurisdiction of the Teind Court and not with any question of procedure. (2) It was only fair that the minister should have the benefit of the old site if it was originally part of the glebe. The facts here favoured the presumption that that was so. There was no dispute that the old manse was built prior to 1778, when it was first recognised in Griersons v. Ewart (June 26, 1778, 2 Hailes 799), that a minister was entitled to half an acre for a manse over and above the glebe. Prior to that date he was only entitled to four acres, including the site of manse— Clark v. Ramsay, December 14, 1621, M. 5144; Kerse v. Reid, July 5, 1626, M. 5132.
Page: 584↓
At advising—
I do not think that that argument can be sustained, because it is really based upon nothing but mere speculation. The parties have supplied us with all they know about the history of the manse, and all that we know is that it is an old manse, what was its origin no one can tell. Now it may be that the manse has come down from pre-Reformation times—it may be that it was originally erected in terms of the various statutes which gave ministers a right to call upon heritors for a manse—but where nothing is known of the origin of the manse it must be presumed that the ground on which the manse stands is dedicated as manse ground, and that as manse ground it is something other than glebe.
I can understand that in a case where in modern times a manse has to be rebuilt, and it is more convenient that the new manse should be built upon the glebe, and where, with the consent of those representing the benefice, the new manse is built upon the glebe, inasmuch as so much glebe has been taken up by the new manse it would only be equitable that the ground cleared by taking away the old manse should be given to the glebe. But where you know nothing about the past history, but where you merely find a manse standing, then I take it that the ground on which the manse stands is manse ground and separate from the glebe ground. Inasmuch as the heritors here have found a new site it is only right and just that they should be allowed to dispose of the old one. They were not bound to find a new site for the manse, they might have rebuilt it upon the old site. But in the circumstances of this case it was thought expedient to build the manse elsewhere. The heritors have had to find a site elsewhere, and have with the consent of all parties built the new manse upon it. I think they are entitled to the site that has been rendered free.
That I think is obviously the view which the Court held in the case of Gloag, which is reported in 1 R. 187. The report of that case bears (p. 188) that “The Court were doubtful whether authority could be granted to feu the site of the old manse, offices, and garden, without a designation thereof as glebe.” That clearly points to the opinion held by the Court that manse ground was one thing and the glebe was another.
Accordingly, upon the whole matter I think that the crave of the petition as lodged is correct and ought to be granted. I may say that if one had to guess I think it is very likely that this never was glebe ground at all, because it seems to be upon the other side of the water from the glebe. But I do not go upon that because that is also mere speculation. I go upon the simple point that if one knows nothing about the origin of the manse, manse ground is manse ground and not glebe ground
The Court granted the prayer of the petition.
Counsel for the Petitioners— Blackburn K.C.— D. P. Fleming. Agents— A. B. & F. J. Dewar, W.S.
Counsel for the Respondents— Crabb— Watt, K.C.— Hunter. Agents— Laing & Motherwell, W.S.