John Wilkie of Foulden, Esq. v. Samuel Simpson of Nunlands, and the Rev. Mr. John Buchanan, Minister of the Parish of Foulden [1770] UKHL 2_Paton_222

UKHL
John Wilkie of Foulden, Esq. v. Samuel Simpson of Nunlands, and the Rev. Mr. John Buchanan, Minister of the Parish of Foulden
[1770] UKHL 2_Paton_222 · 1770-03-14
In the selection of any individual lands, out of which to design a grass glebe to the minister—(1.) Held, that kirk lands, though for sometime turned into culture as arable land, were to be designed in preference to other kirk lands in pasture at a greater distance from the manse. Also, (2.) Held, that the minister had a right to insist on such designation, though the proprietor of the arable land had agreed, in a division of a common within the parish, to give the minister the right of pasture, for one horse and two cows, in lieu of grass glebe, and the minister had enjoyed this right on the part of the common allocated to that heritor, for time immemorial.The question in this case was, Whether a certain part of the appellant's estate was subject to be designed as a grass glebe for the minister, and had been lawfully so designed; and whether other lands ought not to have been taken in their stead?

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The solution of this question depended on an accurate view of the law on the subject, and on whether the appellant's lands were to be considered kirk lands, of the nature of unarable lands, or not.By the law of Scotland, ministers are entitled, in rural parishes, 1st. To a manse; 2d. Four acres for corn glebe; and, 3d. To a grass glebe, sufficient to grass one horse and two cows.The act 1663, c. 21, which regulates manses and glebes, has the following clause with reference to the grass glebe:—
“That every minister (except such ministers of royal burghs, who have not right to glebes,) have grass for one horse and two kine, over and above their glebe, to be designed out of kirk lands; and if there be no kirk lands lying near the minister's manse out of which the grass glebe for one horse and two kine may be designed; or otherwise, if the said kirk lands be arable land , in either of these cases, ordains the heritors to pay to the minister and his successors yearly the sum of £20 Scots for the said grass for one horse and two kine; the heritors always being relieved according to the law standing of other heritors of kirk lands in said parish.”
Also, “That in all designations of glebes, incorporate acres in village or town, where the heritor hath houses and gardens, the same shall not be designed, he always giving other lands nearest to the kirk.”Kirk lands are such as were anciently granted to churchmen for their livings, in consideration of spiritual services: and are still known as such, by their being described in the charters or grant, as terrœ ecclesiasticœ terrœ ecclesiasticœ and are so distinguished from other lands in the parish, called temporal lands.By the very nature of grass glebe, and by the express terms of the statute, this behoved to be designed out of kirk lands lying in pasture, not out of arable kirk lands: or, as it was called, infield and outfield. These terms were distinct. The former referring to arable land, and constantly under cultivation; the latter being pasture, and permanently remaining so, for the purpose of feeding cattle.The appellant, Wilkie, and his ancestors, were proprietors, and infeft in the barony of Foulden, lying in the parish of Foulden, but not comprehending any kirk lands .Another heritor in the parish was one Mr. Rule of Nun-land, who fifty years stood infeft “in totis et integris terris

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In 1719 the appellant's father bought of Mr. Rule of Nunlands some small parcels of his lands, called Clartyburn, lying runrig, or intermixt with parts of the lands of Foulden; and, in a charter taken out of those lands in 1721, they are described, “Totas et integras terras et baroniam de Foulden, &c. Ac etiam totas et integras tales. partes et portiones terrarum ecclesiasticarum rectoriarum et vicariarum ecclesiæ parochialis de Foulden, extend. ad tres husbandias terras ut infra mentionat. viz. totas et integras tres quarterias terræ in Whitecornlees tam outfield quam infield jacen. lie runrig cum dicti Jacobi Wilkie terris de Whitecornlees, et totum et integrum dimidium terræ de lie infield jacen in occidentali parte de Foulden et dimidium terræ lie infield vocat Clartyburn.”The respondent, Simpson, purchased the estate of Nunlands from Rule; and the other respondent, Rev. Mr. Buchanan, having possessed nothing as a grass glebe, but a precarious right of pasturage on a common, applied to the presbytery of the bounds, to be designed a grass glebe, in terms of law. His petition was accordingly intimated to the heritors, who appointed inquiry to be made of the kirk lands in the parish. The minister himself fixed upon Clartyburn, which he represented to be kirklands, being those purchased by the appellant's father from Rule. The appellant admitted the purchase of parts of the estate of Nunlands, called Clartyburn, but objected, that as these were now in the natural course of agriculture, ploughed down and blended with parts of his lands of Foulden, that arable kirk lands could not be so designed. That the act of Parliament gave no power to design any but unarable kirk lauds; and that he had made offer to pay his share of the £20 Scots, to be paid to the minister in lieu of grass glebe. The presbytery, regarding these objections as well founded in law, were of opinion that they could not

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Jan. 25, 1769.

The Lords pronounced this interlocutor:—

out of John Wilkie of Foulden's lands, in the parish, and not out of Samuel Simpson of Nunlands, his lands. Find the said John Wilkie liable to the said Samuel Simpson in the expenses of process hitherto incurred, and ordains an account thereof to be given in to the Lord Ordinary, to whom they remit the cause, to proceed accordingly.”
“Having advised informations given in kine inde , the Lords find that the grass for the minister's pasturage must be designed

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The Lord Ordinary thereafter remitted “to the sheriff-depute, or his substitute, of the shire of Berwick, to allocate and set apart as much of the lands of Clartyburn, and grounds adjacent, belonging to John Wilkie of Foulden (the appellant), as will be a sufficient grass glebe to the minister of Foulden for a horse and two cows, with power to the sheriff to take a proof by witnesses, of the value of the grounds to be allocated, and to cause make a plan thereof; all to be reported to the Lord Ordinary.”Against these interloculors the present appeal was brought.Pleaded for the Appellant .—The act warrants only the designing of grass glebes out of kirk lands; and if there be no kirk lands, or if the kirk lands be arable lands, ordains £20 Scots to be paid by the heritors to the minister yearly, in lieu thereof. It being apparent to the presbytery, and to every one, that all the kirk lands that he was possessed of in the parish, were infield or arable lands, and had been in that state for time immemorial, and so described in his charter of 1721, as “dimidium terræ lie infield vocat Clartyburn,” these lands were not subject to be designed. And the pasture formerly enjoyed by the minister in common with other pasture rights on the common within the parish, could not affect the present question in any manner of way, because the common lands and kirk lands of Clartyburn were distinct.Pleaded for the Respondents .—It is admitted that the minister has had an immemorial right of pasture upon the appellant's lands, on that part of the common allocated to him when the division thereof took place, therefore, if the minister insists for a designation, that designation will fall to be made out of his lands. And it is no answer to this, that the appellant's lands, particularly that part consisting of the kirk lands, have been reduced to culture, and converted into arable land; because the very fact of their being kirk lands informed him of the burden which they were subject to, as from the minister, and therefore he cannot, on this ground, remove that burden from himself and lay it on the respondent.

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After hearing counsel, it was

Ordered and adjudged that the appeal be dismissed, and that the interlocutors complained of be affirmed, with £60 costs.Counsel: For Appellant, Ja. Montgomery, Al. Wedderburn. For Respondents, Al. Forrester, Thos. Lockhart.Note .—Unreported.