Rev. Robert Moore - Connel - Kea - Stuart v. Alexander Hepburn Murray Belches, Esq. - Spanki - Campbell [1827] UKHL 2_WS_558

UKHL
Rev. Robert Moore - Connel - Kea - Stuart v. Alexander Hepburn Murray Belches, Esq. - Spanki - Campbell
[1827] UKHL 2_WS_558
Lords Gillies and Meadow-bank .

Subject_ Grass Glebe — Stat. 1663, c. 21. —

were alleged to be equally as good and convenient as those designed by the Presbytery, and that he was not entitled to a compensation for the want of a glebe during the litigation, Held, (reversing the judgment of the Court, but affirming that of the Lord Ordinary,) That the minister was entitled to have the glebe designed out of the kirk lands, and to a compensation for the want of it.A Presbytery having designed, under the above statute, to the minister of the parish a grass glebe out of kirk lands belonging to one of the heritors, whose mansion-house had formerly been built on them; and the Court of Session, (altering the judgment of the Lord Ordinary,) having found that the heritor was entitled to object to those lands being so designed; and that the minister was bound to accept a glebe out of other lands, which were not kirk lands, but which

Page: 559 ↓

The Presbytery of Dunbar designed four and a half acres of the kirk lands of Blackcastle, the property of Alexander Hepburn Murray Belches, Esq. of Invennay, as a grass glebe to the Rev. Robert Moore, minister of the parish of Oldhamstocks. To this designation Mr Belches objected, and suspended, on various grounds; but principally because the lands designed were the site of the old manor-house of Blackcastle, now in ruins, and offered in lieu thereof a grass glebe at some distance, which he alleged was equally good and convenient. The case having come before Lord Gillies, his Lordship at first sustained the reasons of suspension, but on a representation by Mr Moore, he altered and repelled the reasons. Against this judgment Mr Belches represented, and having alleged that the lands which had been designed were arable and not pasture lands, his Lordship remitted to Mr Turnbull, a person of skill, to inspect them, which he accordingly did, and reported that they were pasture lands, and that it would require six acres of them to pasture a horse and two cows. Objections having been made by Mr Belches to this report, Lord Meadowbank, (before whom the case had now come,) on the 13th of May 1823, approved of the report, repelled the objections, found the letters orderly proceeded, and expenses due, and at the same time issued this note of his opinion :—
“The lands in question have undoubtedly been subjected to cultivation, but that only to render their being employed as grass lands more beneficial. They are, therefore, according to the admissions of the suspender, exactly in the predicament of those which were designed in the case of Maule, 18th May 1809; and as to the objection of their lying adjacent to the manor-place, the allegations do not appear to the Lord Ordinary to be of that description that would authorize the Court to hold that they are to be exempted from the burden in question, to which, by law, they otherwise must be subjected.”
Mr Belches having reclaimed, the Court, before answer, appointed him to give in a condescendence “of the grounds he offers to have designed as a grass glebe for the respondent, (Mr Moore,) instead of the ground designed by the Presbytery;” and having done so, their Lordships remitted to Mr Turnbull to report “how far the ground condescended on was adapted, by facility

Page: 560 ↓

Mr Moore reclaimed, praying the Court to repel the reasons of suspension, or at all events to grant to him a pecuniary compensation for the want of a glebe since the designation by the Presbytery. The Court, however, on the 23d of December, 1825, refused the petition and adhered. *Mr Moore appealed.Appellant .—By the act 1663, c. 21, a minister is entitled to have a grass glebe designed to him out of the kirk lands nearest to the manse; and the heritor is not entitled to defeat the enactment by an offer of other lands, not kirk lands, and less convenient in point of situation and in other respects. The object of the legislature was to give an indefeasible right to the minister to such lands as had formerly belonged to the church establishment; and accordingly those lands are first pointed out

Footnote

* See 4 Shaw and Dunlop, No. 244.

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Respondent .—The glebe designed by the Presbytery lies within the old garden wall, which encloses the outer park of the castle, and comes close to its front. This is an insuperable objection to its designation. It is no answer that the castle is in ruins. That does not render the situation less suitable for a mansion-house, either consisting of a new erection, or the old house repaired. In the substitution made by the Court, the appellant obtains a designation perfectly suitable for the purpose in view. The circuit of the road is trifling. The road itself is guaranteed, and has been lined off. Even although there

Page: 562 ↓

The House of Lords ordered and adjudged, “That the said several interlocutors complained of in the said appeal be, and the same arc hereby reversed; and it is farther ordered, that the interlocutor of the Lord Ordinary, dated the 13th May, 1823, be, and the same is hereby affirmed; and it is further ordered, that the cause be remitted back to the Court of Session, to fix the time for the appellant's entry to the glebe designed by the Presbytery; and it is declared, that the appellant is entitled to a pecuniary compensation for the want of a glebe; and it is further ordered, that the said Court of Session do fix the time from which the same shall be calculated, and do ascertain the amount of such compensation, and proceed therein as shall be just.” *Appellant's Authorities.— Appellant's Authorities.— .1663. c. 21.—1572. 2. 48—1587. c. 29.—1593. c. 161. Cuningham, Jan. 6, 1594 (5135)—1594. c. 202,—Earl of Galloway, June 12, 1823, (2. Shaw and Dunlop, No. 373.)—Dundas, Feb. 3, 1808, (not reported.)—A branch of the same cause, Dec. 6, 1805, (Fac. Coll.)—2. Ersk. Inst. 10. § .—Steele, July 27, 1748 (5161.)—Hodges, Feb. 27, 1756 (5162.) Respondent's Authorities. —Marshall, June 20, 1605 (8495.)—Connc's Law of Parishes, p. 423.Solicitors: Spottiswoode and Robertson,— Richardson and Connel, —Solicitors.

Footnote

* The Lord Chief Baron heard this appeal.