The Officers of State - Attorney Genera - Solicitor General (Cockburn) v. Earl of Haddington - Dr. Lushington - Mr. Anderson [1831] UKHL 5_WS_570

UKHL
The Officers of State - Attorney Genera - Solicitor General (Cockburn) v. Earl of Haddington - Dr. Lushington - Mr. Anderson
[1831] UKHL 5_WS_570 · 1823-06-24
Found (reversing the judgment of the Court of Session), that the keeper of the King's park of Holyrood House is not entitled to work quarries in the park to any extent.When this case was formerly before the House of Lords on appeal * their Lordships (May 25, 1826,) ordered and adjudged, “That so much of the interlocutor of the 24th of June 1823, complained of in the said appeal, as finds that the defender has no feudal right of property in the park of Holyrood House, be, and the same is hereby affirmed: And it is further ordered, that as to the remainder of the said interlocutor, and as to the other interlocutors complained of in the said appeal, the cause be remitted back to the Court of Session in Scotland to review the same: And it is further ordered, that the Court to which this remit is made do require the opinion of the other judges of the said Court of Session in writing upon the questions of law which may arise in the same, which opinion the said other judges are required to give; and after such review the said Court do and decern in the said cause as may be just.”The Court, in applying the judgment of the House of Lords,

Footnote

* 2 Wilson and Shaw, 468. In the Report of the Speech of Lord Gifford, p. 480, line 12, “Lord Haddington” has, by mistake, been printed instead of Officers of State.”

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Cases were accordingly given in, and thereafter the following questions were laid before the Judges of the First Division and the permanent Ordinaries for their opinion:—
“1. Whether the grant in 1646 in favour of Sir James Hamilton, and the subsequent grants which have been found to convey no feudal right of property in the park of Holyrood House, do or do not, when the terms of the grants and the proof of usage are taken under consideration, import a right in the grantees of quarrying stones in the park, and of drawing the profits arising from such quarrying according to use and wont?
2. Whether such right has been established and confirmed by prescription?3. Whether it is competent for the pursuers, under the present summons, to complain of any abuse or excess supposed to have been committed by the defender in the exercise of his alleged right of quarrying? or what is the proper method of obtaining redress, if the right of quarrying, according to immemorial usage or to a certain extent, is held to belong to the defender? and if the object is to limit and control the exercise of this right according to such usage, or within certain defined bounds?4. Whether the grant imports a right to work the quarries without limitation? and if the right is limited, what are, in law, those limitations? and have they been exceeded by the operations complained of in the summons?

On which the consulted judges delivered the following opinions:—

Lord President , Lords Balgray , Gillies , and Corehouse .—(1.) The grant, in 1646, in favour of Sir James Hamilton, and the subsequent grants, convey no feudal right of property in the soil of the park; but they convey a feudal right to the office of keeper of the park, and to all the emoluments belonging to that office. We are of opinion, therefore, that those grants import a right in the grantees of quarrying stones

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Lord Craigie .—“By the original grant in 1646 to the defender's ancestor, the office of keeper of the King's park of Holyrood House, formerly personal and temporary, was feudalized and made perpetual; but the import and effect of the right, as well as the extent of the emoluments pertaining to the office, continued the same. It seems impossible by any construction to establish by it, or by the subsequent investitures, which are in the same terms, an immediate right to the property of the soil, or to the mines or minerals to be found in the lands. The defender's predecessors, in exercising the

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Lord Cringletie .—“In 1554 the city of Edinburgh, as is proved by its records, had the privilege of quarrying stones in the park for paving its streets, and I think that the city exercised this privilege by their own workmen down to 1664. Certain it seems to be that they continued to do so thirty-one years after the office of keeping the park was granted to Sir James Hamilton, because the records of the city, in 1675, prove that Bailie Hay was appointed ‘to speak with Sir James Hamilton, that in setting of the King's park there be liberty reserved to the good town to win stanes, and lead the same

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It does not, however, appear that he used his right, or worked the quarries at all; but it is probable (although the fact is not established) that in 1764 he had sublet the right of quarrying to Andrew Sinclair, because it was in that year Sinclair entered into the agreement with the city to which I have alluded, which he could not have done without powers from Knox, as his lease of the quarries was then current. Such seem to me to be the facts appearing by the evidence in process, so that the Earls of Haddington never wrought the quarries in the park, nor let them till 1748. In that year they were let to Knox; but until 1764 there is no evidence of their having been worked for any other purpose than paving the streets of Edinburgh. I do not think it necessary to detail the words of the grant, in 1646, by his Majesty Charles the First to Sir James Hamilton. It is established now beyond dispute that it did not convey the feudal property to the

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Lords Meadowbank , Medwyn , and Newton .—”(1.) The grant in 1646, in favour of Sir James Hamilton, and the subsequent grants, convey no feudal right of property in the soil of the park, but they convey a feudal right to the office of keeper of the park, and to all the emoluments belonging to that office,—the office, which was previously personal and temporary, being now made a feudal grant, and perpetual in the person of the grantee and his heirs male. We are of opinion therefore, that those grants import a right in the grantees of drawing the profits arising from the park to the extent sanctioned by the usage at the time of the grant, or immediately subsequent to it, and no farther; and that the emoluments of the keeper, not being defined in the grant, can be ascertained by such usage alone. (2.) We do not think that the law of prescription applies to the case. The right of the Earl of Haddington depends on the import of his grant, to explain which it is necessary to refer to usage. If the grant were challenged, prescription would establish or confirm it. But the grant is not challenged; it is only the import of it which is the subject of discussion. It would also afford a title to prescribe in a question with any conterminous proprietor as to the boundaries of the park; but it can afford no title of prescription against the granter, to the effect of altering the nature of the grant, or extending the powers of the keeper, so as to give him those of a feudal proprietor. (3.) As the present summons contains a conclusion to have it found that the ‘defender has no right or title to do or authorize any act or operation by which the property of the park may be in any way dilapidated or exhausted,’ we are of opinion that it is competent for the pursuers, under their summons, to complain of any abuse or excess supposed to have been committed by the defender in the exercise of his alleged right of quarrying, provided it be an abuse or exercise that tends to injure the park. (4.) We are of opinion, that as the grant does not contain any express right to work the quarries, a right to do so can

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Lord Mackenzie .—“(1.) I think that the right of the noble defender is only that of heritable keeper of the King's park of Holyrood House, with the power of levying the profits of that park for his own use. There appears nothing to show that this park was ever intended to be disparked, to be wholly separated from the royal palace to which it was attached (which remains a royal residence at this day), and to be converted into ordinary property, in which the King had no longer any right or interest

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Lord Moncrieff .—“(1.) It is a settled point that the noble defender has not, under the charters, any feudal right of property in the King's park. He has, however, a feudal title in the office of keeper of the park, with the profits and emoluments which may be held to belong to it; and this being an estate of inheritance in his person, I conceive that, in regard to all the benefits clearly attached to it, the right established in it goes far beyond a mere power of custody under any commission from the Crown. The right is so vested that not only it could not be recalled by his Majesty, but I humbly apprehend that, except with reference to the actual use of the palace as a royal residence, it would not be competent for the Crown to resume any use or command of the grounds of the park for profit, whereby the keeper's established enjoyment of it might be destroyed or materially injured. But, as there is still no title of property carried by the grants, and as the beneficial uses are not therein defined, otherwise than by a reference in general terms to the issues and profits, either of the office, or, as I rather think, of the park itself, the nature and measure of them must be determined by principles of law, or by usage legitimately applied to those principles. In general, titles affecting property in land, which consist in a right of custody, possession, and enjoyment only, are confined to the ordinary uses of the surface, as capable of yielding annual fruits, and do not extend to the working of minerals or other extraordinary acts, whereby a part of the subject itself is withdrawn or destroyed, or the nature of it may be essentially and permanently changed. If the present question, therefore, depended simply

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The Second Division of the Court, on resuming consideration of the case, delivered the following opinions:—Lord Justice-Clerk. —“I have read the papers in this case with all the attention in my power, and also the opinions of the learned judges, whom we were called on to consult by the remit from the House of Lords. We have these opinions now before us, and I shall shortly state what is the result of the opinion to which I have come. And in the first place, with the exception of one point, entertaining, I fairly own, some doubt as to the application of the doctrine of prescription at all to this case, under the circumstances in which it is presented,—with this exception, I freely confess, that on considering the case with all the attention in my power, and looking to the supposed difficulties in reconciling the judgment of this Court with that of the court of last resort, I retain the opinion which I had formerly formed.

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Lord Pilmilly .—“My Lords, as I was Ordinary in this case, and as I think some misapprehension has been entertained in regard to the interlocutor which I pronounced, I wish to make a few observations; and I shall begin what I have to state by making some remarks on the points which I think it competent for us to decide under this summons. My Lords, when this case came before me in the Outer House, I paid particular attention to the terms of the summons, and I saw, as it appeared to me, evidently two different grounds on which the action was rested, which seemed to me not only distinguished from each other, but to stand opposed to each other, so that

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Lord Glenlee .—“Although Lord Haddington might have exercised the right of quarrying for sale, yet he is not entitled to use this to the destruction and dilapidation of the subject itself, to which he has not any right. He is bound not to destroy the subject; that is a perpetual condition, against which he can never prescribe. The Court, by its first interlocutor, assoilzied from the action, but did so in respect there was no abuse alleged; but if they now allege such abuse, where is the difficulty of inquiring into it in the process, when there is a conclusion against the exercise of the right at all? If the recent usage had been that of quarrying to a very great extent, I am not prepared to say he is entitled to continue that.”Lord Justice-Clerk .—“We must endeavour, the best way we can, to extract and discover what, upon the whole opinions, is the judgment we are to pronounce, which must be in terms of the opinions of the whole judges, without regard to the division of the Court in which the case happens to be. Now, from the opinions, it appears to me that Lords Craigie, Meadowbank, Newton, and M'Kenzie, although there are shades of difference between them, yet generally are in favour of the pursuers.The opinions of my Lord President and the three other judges who concur with him in his opinion, and Lord Moncreiff, as I draw the conclusion at least from his lordship's opinion, are generally in favour of the defender. These are five opinions, and there are two of the judges present who concur in that view. Lord Glenlee's opinion, I think, was more qualified.”

Lord Cringletie .—“I think there has been a usage of quarrying

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Lord Justice-Clerk. —“It is very difficult to criticise these opinions so as to come to a satisfactory result. But I think there are some points upon which we are all agreed:—1st, we are agreed that prescription does not apply to the case; 2d, that the right is not of an unlimited nature, but that it must be qualified by usage; and, 3d, that any abuse or excess in the exercise of the right may be restrained. We are all agreed upon these. But to say that there is any thing proved as to the excess is difficult; it is difficult to point out where it begins or ends. I therefore think, that if we embody these three findings in an “interlocutor, and order a condescendence upon the question of excess or abuse of the right, we do all that is consistent with the case as it stands now.”

The Court then pronounced this judgment (4th June 1830): *

In addition to that part of their former interlocutor of the 24th June 1823, affirmed on appeal by the House of Lords, and in terms of that affirmance adhered to by their interlocutor of 9th June 1826, finding, ‘That the defender has no feudal right of property in the park of Holyrood House:’ find, that in opposition to or inconsistently with the terms of the grant from the Crown, which is the defender's title of possession, there are not termini habiles for any plea of the positive prescription in defence against the conclusions of this action, and repel that defence accordingly: find, that in consistency always with the peculiar nature and terms of the grant from the Crown to the defender's ancestors and authors, the conditions and extent of his right must be explained, defined, and regulated by ancient and continued usage: find, that from time immemorial quarries for stones have been opened and worked within the park of Holyrood House by the defender's ancestors and authors; but further find, that the defender's right in that respect is of a limited nature, and that he has not a

Footnote

* 8 Shaw and Dunlop, p. 867.right to work such quarries for general and unlimited sale; and before further answer as to the nature, special purposes, or extent of any limited right in the defender of opening and working quarries, allow the pursuers to give in a special condescendence of what they aver and offer to prove as to the usage in these respects, both ancient and recent; and, when given in, allow the defender to give in answers thereto.”

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The Officers of State appealed, in so far as the interlocutors of the Court “do not find or imply that the Earl of Haddington has no right whatever to work quarries in the park of Holyrood House.”Lord Chancellor .—I am now about to assign the reasons why I feel it my duty to advise your Lordships to take the course which appears to me, with great humility, unavoidable in this case—I mean, altogether to reverse the judgment of the Court below. My Lords, if, upon examining the grounds of the decision, with all the respect which it is possible to feel for the very-learned persons who have concurred in supporting this judgment, I had found that the facts were undeniably as they assume them to be, and that the whole difference of opinion in the case was upon a point of law applicable to an unquestionable state of facts, I should then, in deference to the judgment which has been given and the authority of those learned judges, have taken more time to consider it before I advised your Lordships to reverse the judgment. But upon the best attention I can bestow upon the case, assisted by the arguments of the learned counsel, upon whom I pressed from time to time the difficulties as they struck me, I find that their Lordships have, as is but too common in Scotch decisions, taken facts for granted, and proceeded to argue and decide upon the law long before they had entitled themselves to raise the legal question, inasmuch as the facts were not established in evidence. I have no hesitation whatever in the course I am to pursue, having also an opinion, that even if the facts had been as they were gratuitously assumed to be, there is little to support this judgment in point of law.Now, my Lords, the claim here is of a very singular nature, it must be confessed of a nature wholly novel in this country, and (as I gather from the silence of the cases in the books and of the learned advocates in this cause) equally novel in Scotland. The Crown, in the exercise of an undoubted prerogative, conferred upon the ancestor of the Earl of Haddington, Sir James Hamilton, in the year

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This being the state of the fact, I will go a step aside to illustrate this point in observing upon the language of the grant, which is very material. We find that the grant was made to Sir James Hamilton and his heirs of this office—“hereditarium officium et custodiam dicti nostri roborarii, cum omnibus feodis, casualitatibus, divoriis, et privilegiis quibuscunque ad eundem pertinentibus, cum plena potestate prefato domino Jacobo suisque predictis, faciendi et constituendi, sub custodes dicti roborarii unum vel plures pro eorum arbitris pro que eorum officio exercendo.” Now, my Lords, I shall refer for the present only to the tenendas clause, which states, “omnibus et singulis libertatibus commoditatibus, proficuis, asiamentis, ac justis suis pertinentibus quibuscunque, tam non nominatis quam nominatis, tam subtus terra quam supra terram.” But, it is a matter to be proved what those profits and advantages, under the ground as well as over the ground, are, which belonged to the office, because it instantly follows “ad dictam officium spectantibus seu juste spectare valentibus quo modo libet in futurum.” Now, with respect to the tenendas clause, it is hardly necessary to remind your Lordships that the granting part of the instrument (the dispositive part, as it is called in Scotland,) formed the operative part of the grant, and that the office of the tenendas clause is strictly to state the person from whom holden, and to state the kind of the holding or tenure, and not to alter or enlarge the grant. This, which is always the office of that clause, has been undoubtedly of late years—for the last one hundred and fifty years—still more peculiarly its office, since, I believe, it is understood among conveyancers in Scotland that during that period the tenendas clause is of such a nature that it could always be dispensed with, because a good deal is generally now inserted in the dispositive part which used to form part of the

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Now, we come to the question which is raised by the learned judges in the Court below, and upon which they have decided; and you have the weight of the authority of four most learned judges one way, and you have, I think, seven, or at all events six, the other way. We are then, not only to count the number of judges, but to weigh their reasons; and your Lordships shall hear what they say in answer to the main question, number 4, and whether or no I have been justified in stating to your Lordships that they have made a present of the fact in order to raise a question of law:
“We are of opinion that, as the grant does not contain any express right to work the quarries, a right to do so can only be claimed in virtue of a usage at the date of the grant; and that it cannot be carried to any greater extent than is sanctioned by such usage.”
Then when their Lordships were pressed by the argument, whether this did not go to giving a power to the keeper of the subject-matter to destroy the subject-matter altogether, for he might proceed to quarry under Holyrood House windows, “No,” say

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other purposes in the city and neighbourhood.”

“We think there is evidence in process that the keeper of the park has been in use, from the date of the grant, to quarry and sell, or to permit others for his behoof to quarry and sell, stones for the purpose of causewaying the streets of Edinburgh, and perhaps for some

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Now, this expression “perhaps” was just one of the things in this singular but important passage which first excited my attention, and made me suspect the inaccuracy of the whole; because to say there is evidence in process of a certain fact, I can understand, and upon reading that expression I should never have doubted that I should find the fact in the process; but to say there is evidence of that fact, and “perhaps” of another fact, I cannot understand, because either there is evidence of it or there is not. There can be no “perhaps” about it, unless they mean to say that the evidence is of a very doubtful nature, and that it is possible it may go farther than that, which it can be strictly taken to prove, whether it is confined to causewaying the streets or to some other purposes; but there is no doubt of that, because it is easy to see if there is any other purpose mentioned. How, therefore, can these words that come under the “perhaps” have any accurate place in the opinion? But passing this by, I have looked into the whole process, and I have not found any evidence; I have called upon the learned counsel for the respondent to show the evidence of this, and they have referred me to something, but I apprehend to nothing which can be called evidence of any such fact; and I pray of your Lordships to see how these very learned lawyers assume the fact in order to get at the point of law. They say, “We think there is evidence in process;” that is to say, documentary evidence, because that which in the Scotch law is called evidence in process is a perfectly well known and technical phrase, and it means some document in the process legitimately proved, and in the possession of the Court. Now, where are the documents which, even according to the laxity of the Scotch practice in matters of evidence, prove this following proposition, that the keeper of a park —nobody else—(for if it were any body else it would avail nothing) has been in use from the date of the grant of 1646 to quarry and sell, or to permit others to quarry and sell for his behoof? I will tell your Lordships what that means; if this finding was correct there ought to have been legal evidence in process, receipts from different park-keepers or their stewards, now dead, charging themselves with the receipt of monies from different individuals who had leave to quarry and take away stones from Holyrood House Park. That is the sort of evidence which, to an English lawyer's mind, is described by these words; or else depositions perpetuated, which have become evidence of persons who, of their own knowledge, stated that different persons had at different times actually applied for and obtained leave to quarry from the park-keeper, and had paid to the park-keeper and his agents monies or other considerations for that leave so obtained.

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My Lords,the first evidence * relied upon to show this fact, that

Footnote

* The following excerpts from the council records of the city of Edinburgh, and extracts tack, are the evidence relied on in the Court below to which his Lordship adverts:—Edinburgh, 15th June 1554.—The quhilk day the provest, baillies, counsale, dekyns of craftis, with ane gret part of uther honest men of the burgh, at the requiest of Mare Dowriar and regent of yis realm, moder to our Souerane Lady ye Quein's grace, comperand be my Lord of Dunfermling, and Sir Johnne Campbel of Lunde, knycht, her Gracis master houshald, consentit to big on yair expensis ye haill sloppis in ye park-dyke, circulit about Arthour Sett, Salisberie, and Duddingstoun Craggis, under protestatioun, vat ye samin prejudgit nocht them anent ye calsey stanes quhilk yai wer in use to get furth ye said craigis quhen yai had ado yr with.Edinburgh. 28th March 1599.—The same day compeiret John Robertsoun, flesher, and tacksman to the King's G. of his M. park, and was content and consentit that the toun sall haif yair calsey staynes furth of the samen, not hurtand his corne, grass, or guids, and repairand the skayth in case ony be sustained.Edinburgh. 28th October 1664.—Appoints the threasurer to agree with the layers of the calsey for wining of calsey stones out of the park, for the service of the toun's common calseys, of such square and thikness as sall be prescryvit to them.Edinburgh, 24th October 1668—The counsell grants warrand to the threasurer to agree wt any persone for winning of stones in the park for the use of the calsey.

Edinburgh, 3d December 1675.—The council recommends to Bailie Hay, the

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Footnote

threasurer, and Deacon Hamiltoune, to speak with Sir James Hamiltoune, that in seting of the King's park yr be libertie reserved to the good toun to wine stains, and lead the same from the said wark, for helping and making the public calsey.Edinburgh, 15th December 1675.—The same day report was made be Bailie Hay, that he having met with Sir James Hamiltoune, anent a liberty to be reserved for the town to wine calsey stones out of the King's park, which the said Sir James Hamiltoune most willingly condescended to, that the toune should have that liberty, with this provision and declaration, that if, in the winning of stones and carrying them off the ground there be any prejudice done to his tacksman, that as for that damage he was willing that the toun should take two persones, and his tacksman other two, to whom the liquidation of the damage is to be referred to their discretion.Edinburgh, 19th March 1680.—The said day the council appoynts Magnus Prince, toun threasurer, to pay to the relict of Alexander Todrig, keiper of the King's park, the soume of fourtie pounds Scots money, and that for two thousand and fyve hundred calsey stones, at sexteen pound Scots per thousand, furnished be the said deceist Alexander Todrig to the good toun, conforme to a particular accompt, qranent thir presents shall be a warrand.Edinburgh, 20th January 1697.—The same day the council, upon the threasurer's report, that he had appointed several persons to furnish calsey stones, which are now ready to be carried out of the King's park, do therefore appoint the threasurer to advance money for that use, and to cause carry the said stones to ane convenient place, for the use of the good town, whereanent thir presents shall be a warrand.It is appointed, contracted, finallie agreed, and endit, betwixt ane noble carle Thomas Earle of Haddingtone, and heritable proprietor of the park underwrn, on the ane pairt, and David Smith, pnt., possessor of the said park, on the other pairt, as follows; that is to say, the said noble earle has set in tack and assedatione, and be the tenor hereof, for the rent and duetie under written, in tack and assedatione letts to the said David Smith, (secluding his airs, exers, assignees, and all others, his representatives,) all and haill the park of Halyrudhouse, the grass and pasturage y'rof, with houses, biggings, meadows, and haill pertinents of the samyne as pntly possessed be him, and formerly be Andrew Dubissone and Christian Lawrie his spouse, for all the years and time of nyne years (he being on life himself) next and immediately following the term of Candlemas next 1712 years; which is hereby declared to be his entry thereof, by virtue of this tack, as being the expiring of ane year's possession thereof by him without tack, and from thence furth this present tack to continue; and the said park, houses, grass, pasturage, meadows, and pertinents thereof to be peaceably brooked and possessed by him, he being on life, during the said space and years of nine years from and after the said term of Candlemas next, without any revocation, obstacle, or impediment whatsomever; which tack and assedation above written the said noble earle binds and obliges him, his airs and successors, to warrand to the said David Smith, as above expressed, at all hands, and against all deadly. For the which causes, and on the other parte, the said David Smith binds and obliges him, his airs, executors, intromitters with his lands; heritages, goods, and gear, and successors whatsoever, thankfullie to content and pay to the said noble earle, Thomas Earle of Hadinton, his

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Footnote

airs or assignees, or to his factors in his name, yearly and ilk year during the space of this present tack, the soume of four thousand ane hundredth twenty-five merks Scots money, at two terms in the year, Lambas and Candlemas, by equal portions, &c. And sicklike, the said David Smith obliges him and his foresaids, that neither he nor any other, by their order or knowledge, shall not plow up any part of the said park, nor cast any faile or divotts, or winn any stones for building (except causeway stones), in any part thereof, except what shall be necessary for repairing the saids houses during this present tack; and they shall flit and remove themselves, their families, subtenants, &c. &c.At Edinburgh, the 12th April 1717.—Which day the honourable the magistrates and council of the city of Edinburgh being assembled, the council, with the extraordinary deacons, authorized and empowered Robert Wightman, present threasurer, to agree with David Smith, tacksman of the King's park, for liberty to dig for calsey stanes, and carrieing the same off for the good town's use, for such an number of years, and for such an yearly rent as he can best agree, whercanent thir presents shall be a warrand.It is contracted, agreed, and ended betwixt Mr. Charles St. Clair of Hermiston, advocate, as commissioner for Thomas Earl of Haddington, heritable proprietor of the lands and others under written, conform to a commission and factory granted to him, dated the day of on the one part, and George Knox, second lawful son to Archibald Knox of Mayshiell, on the other part, as follows;—that is to say, the said Mr. Charles St. Clair, as commissioner foresaid, sets, and in tack and assedation, for the yearly rent and tack-duty under written, lets to the said George Knox and his heirs allenarly, secluding assignees and subtenants, all and haill the park of Holyroodhouse, with the grass and pasturage thereof, houses, biggings, yards, meadows, parts, pendicles, and haill pertinents thereof, as the same were last possessed by David Smith, late tacksman thereof, lying within the sheriffdom of Edinburgh, and that for all the days, years, and space of twenty-one years next and immediately following his entry thereto, which is hereby declared to have been and begun to the arable land at the term of Martinmas last, and to be and begin to the houses, grass, and pasturage at the term of Candlemas next, and to the working of the quarries upon the 1st day of April next, and from thenceforth to continue and endure to be peaceably possessed and enjoyed by the said George Knox and his foresaids during all the years of this present tack, which the said Thomas Earl of Hadinton, his heirs and successors, are hereby bound and obliged to warrand to the said George Knox and his aforesaids at all hands, and against all deadly, as law will; for the which causes, and on the other part, the said George Knox as principal, and the said Archibald Knox of Mayshiell, his father, as cautioner and surety for and with him, bind and oblige them, conjunctly and severally, their heirs, executors, and successors whatsoever, to make a good and thankful payment to the said Thomas Earl of Hadinton, his heirs and assignees, of the sum of two hundred and fifty pounds sterling yearly, at two terms in the year, Whitsunday and Martinmas, by equal portions. And it is hereby agreed to by both parties that the said George Knox and his foresaids shall have liberty to open and work stone quarries and causeway stones in any part of the grounds of the said lands, and to sell and dispose upon the stones workt by them out of the same at their pleasure, &c. &c. And, lastly, it is hereby communed and agreed upon

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Footnote

by both the saids parties, that the persons to whom the quarries now going upon the saids lands are presently let shall have the liberty of carrying off what stones are already wrought by them, or shall be wrought by them before the said George Knox his entry thereto, till the first day of April next to come, &c.At Edinburgh, the 22d February 1764 Which day the right honourable the lord provost, magistrates, and council of the city of Edinburgh being assembled, anent the memorial given in for Andrew St. Clair, merchant in Edinburgh, setting furth, that the memorialist, Mr. St. Clair, was tacksman of the stone quarry in the King's park, and thereby had occasion to carry on a very extensive work, for which purpose he has a great number of hands daily employed in making causeway stones for pavement. As the good town has frequent occasion for such stones for paving the streets and avenues, the memorialist apprehended it would be for the advantage of the good town, as well as for him, if they could agree upon terms for the memorialist's furnishing the town from time to time, during the continuance of his lease, with such stones as they have a demand for, and with this view Mr. St. Clair offered the following conditions:—That the memorialist should become bound to supply the good town with whatever quantity of dressed or undressed stones they might require during his lease at or till the day of April one thousand seven hundred and seventy, at the following rates, viz. best dressed stones at eight shillings and sixpence per ton, and undressed stones at one shilling and eight-pence per cart, each cart containing 12 cwt., both to be delivered without further charge anywhere within the libertys of the town as occasion requires, and to oblige himself to free and relieve the town of the sum of twenty pounds sterling, which they at present pay annually to the tacksman of the King's park for the liberty and privilege of working stones there. On the other hand, it is proposed that the town council become bound to take all the stones they have occasion for, for the use of the city and liberties, from the memorialist, during such space as shall be agreed upon, and not to supply themselves with stones any where else without the consent of the memorialist, and to pay at the prices stipulated for such stones as are furnished once in the year. Lastly, that the workmen employed by the town may not be thrown idle, the memorialist proposed to engage and become bound to employ such of them in his service as are experienced in such work, while they continue to work to the satisfaction of the memorialist's overseer, and to allow them such wages as they give their other workmen. If these terms were agreeable to the council, it was proposed that a contract be entered into betwixt them and the memorialist upon stamp paper, containing a penalty and other clauses requisite, as the memorial under the hand of the said Andrew St. Clair bears. Which being read in council, the same was remitted to Bailie Hamilton and his committee, and they to report. Accordingly the following report was this day given in; viz. the committee subscribing, to whom the memorial of Andrew St. Clair, merchant in Edinburgh, offering to contract for furnishing the city with causeway stones, and a proposal by Robert Campbell, merchant in Stirling, to the same purpose, were remitted,—report that they had taken pains to compute the cost of the causeway stones for some years past, and find that it has never been less than eight shillings and sixpence per ton for drest stones, and three shillings three-pence one fourth per ton for undrest stones, besides tear and wear of quarry-graith, &c. That, upon inquiry, they likewise find the stones of the rock in the King's park have by experience been

Page: 602 ↓

Footnote

found the best in every respect; and as they cannot see how Mr. Campbell could provide the town with these stones, were of opinion, that if Mr. St. Clair will undertake to furnish them in terms of his said memorial, viz. drest stones, that is, equal to the best causeway stones that have been used in paving the streets of Edinburgh, at seven shillings per ton, of such size and dimensions as the town's overseer shall require from time to time, and rough or undrest at one shilling and sixpence per cart, each cart containing twelve hundred weight, the price at which Mr. Campbell offers to furnish them, the town council should enter into a contract with Mr. St. Clair for that purpose, he, as offered in his memorial, taking off the town's hands Knox's tack, and paying the rent from Candlemas last, and purchasing the town's quarry-graith and tools at a valuation, and also engaging to employ all the town's layers, hewers, and dressers, except when the town has occasion to employ the layers in paving the streets, the town treasurer to pay annually at Whitsunday for what stones are furnished, beginning the first term's payment at Whitsunday one thousand seven hundred and sixty-five, as the report under the hands of the said committee bears. Which being considered by the magistrates and council, they, with the extraordinary deacons, approved of the said report, and authorize Bailie Walter Hamilton to enter into a contract with the said Andrew St. Clair accordingly, containing a clause for a mutual break at the end of three years; with a proviso, that the city shall have the use of the stones already quarried without any payment, and also such old stones as may be lifted, and again employed when causewaying the streets.—Extracted from the council records, &c.It is contracted, agreed, and ended betwixt Thomas Earl of Hadinton, heritable proprietor of the lands under written, on the one part, and George Knox, tenant in Holyroodhouse Park, on the other part, as follows; that is to say, the said Thomas Earl of Hadinton hath set, and by these presents, in tack and assedation, for the yearly rent and tack-duty under written, lets to the said George Knox and his heirs allenarly, excluding assignees and sub-tenants, all and whole the park of Holyroodhouse, with the grass and pasturage thereof, houses, biggings, yards, parts, pendicles, and pertinents of the same, (excepting hereof the whole stone and sand quarries, and the houses belonging to them in the said park, with free ish and entry thereto, which the said earl reserves for himself, or to set to others,) all presently possest by the said George Knox, &c.; and that for the space of three years next and immediately following his entry thereto, which is hereby declared to have been and begun to the houses, yards, grass, and pasturage at the thirteen day of February last one thousand seven hundred and seventy-one years, notwithstanding the date hereof.—Rent. 400 l . sterling.

Page: 603 ↓

“The same day appeared John Robertson, flesh er and tacksman to the King, of his Majesty's park, and was content and consented that the town shall have their calsey stones forth of the same, not hurting his corn, grass, or goods, and repairing the skaith in case any be sustained.”
Now every lawyer knows this, that if my tacksman or tenant consents to do a thing, that gives no right to any body against me, unless it is proved that he told me; you must prove that I knew of it. But all that is said is that the tacksman was consenting, and there is nothing about the park-keeper. I am supposing now that this would be evidence of his consent, which it would not, because an entry in the council books is no evidence of the man having come there to consent. Those two entries are prior to the date of the original grant of the office. Then, we come to 1664, the period after the grant, when there was a park-keeper:
“On the 28th of October 1664 there is the following entry in the council records: ‘Appoints the treasurer to agree with the layers of the calsey for winning of calsey stones out of the park, for the service of the town's common calseys, of such square and thickness as shall be prescribed to them.’”
That is an entry of the council appointing them to agree with the layers of the causeway, (that is to say, the paviors of Edinburgh,) for winning stones out of the park, and that is no evidence at all. Then comes, in 1688, this entry:
“The council grants warrant to the treasurer to agree with any person for winning of stones in the park for the use of the calsey.”
Now, that is no evidence; but if it were, it does not prove that the town-council claimed a right in those days to take stones from the park. No doubt my opinion is, that, upon the whole, there is reason to believe that from time to time the Crown has given leave to the town to procure stones for paving out of the park, as lying handy to the town; but then it was only through favour. Then, my Lords, the first entry in which the keeper is introduced is about thirty years after the date of the grant, namely, in 1675. How far a usage which begins thirty years after the grant, that is to say, when both the grantor and the grantee are removed,—how far that amounts to contemporaneous usage, which is to be considered as expository of a doubtful usage, I leave your Lordships to judge, even if it were usage; but I shall show you

Page: 604 ↓

“The same day report was made by Bailie Hay, that he having met with Sir James Hamilton,”
that is, the keeper of the park, “concerning a liberty to be reserved for the town, to win calsey stones out of the King's park, which the said Sir James Hamilton most willingly condescended to, that the town should have that liberty, with this provision and declaration, that if, in the winning of stones and carrying them off the ground, there be any prejudice done to his tacksman, that, as for that damage, he was willing that the town should take two persons, and his tacksman other two, to whom the liquidation of the damage is to be referred to their discretion.” Now, what is this? It is not that Sir James Hamilton gave them a right to quarry. If it had been so, it might have been said to be the exercise of an act of ownership as to the quarry, though still it might be better referred to his office as park-keeper. But it is not that; it is no exercise of that right by him; he gives no leave to take the stones; they only say, that he condescends to their request of reserving, as against his tacksman, a right for them to go over the grass, they paying reasonable damage for any injury they may do to the same. It is not a right to quarry. He does not say a word about that,

Page: 605 ↓

“The said day the council appoints Magnus Prince, town treasurer, to pay to the relict of Alexander Todrig, keeper of the King's park, the sum of 40 l . Scots money, and that for two thousand and five hundred calsey stones, at 16 l . Scots per thousand, furnished by the said deceased Alexander Todrig to the good town, according to a particular account, whereof these presents shall be a warrant.”
Now, this is not only no evidence what ever to prove the fact of the payment, but it is not admissible. No judge is allowed by the law of the land to look at that document. It is not evidence to prove the fact. If they had found an entry in a book by the park-keeper himself, or his bailiff or steward or other agent, charging himself with the receipt of 40 l ., and stating that the 40 l . was received as a consideration for so many thousand calsey stones, that would have been strict legal evidence of the fact. But this is only an entry in the books of the person who paid the money, which by law is no evidence whatever to prove that he paid the money. My agent, or myself, entering in my books that I have paid money, is no evidence that I paid it. If I enter that I have received money, that charges me with receiving it; but this is a man's entry in his own books, used by the learned judges as what they call evidence in process” to prove the receipt of money; so that, if A's book is found, saying that he paid over to B, it is to be set up by B as evidence that he received money. But, marvellous to tell, it does not even purport that the money was paid; it does not say a word about the money being paid. It is, “The said day the council appoints Magnus Prince, town treasurer, to pay to the relict of Alexander Todrig” certain sums of money; but non constat that Magnus Prince did pay. Magnus Prince, like many other magni principes, may not have paid. He may have got the money to pay, and never paid it over to any body. It is only an order

Page: 606 ↓

“The same day the council, upon the treasurer's report that he had appointed several persons to furnish calsey stones, which are now ready to be carried out of the King's park, do therefore appoint the treasurer to advance money for that use and to cause carry the said stones to any convenient place for the use of the good town, whereunto the presents shall be a warrant.”
Now, what is that? It has nothing to do with the quarrying; it is for taking the stones away. Then we come to 1711, and that is a lease from Lord Haddington to David Smith, in which David Smith “obliges him and his foresaids, that neither he, nor any other by their order or knowledge, shall plough up any part of the said park, nor cast any faill or divotts, or winn any stones for building (except causeway stones), in any part thereof, except what shall be necessary for repairing the said houses during the present tack.” Then comes, in the year 1717, the following entry in the records:—
“The Council authorized and empowered Robert Wightman, present treasurer, to agree with David Smith, tacksman of the King's park, for liberty to dig for calsey stones, and carrying the same off for the good town's use, for such a number of years and for such a yearly rent as he can best agree, whereunto these presents shall be a warrant.”
Now this only proves, according to the effect of the observation I have already made, that the town did agree with the tacksman for liberty to dig causeway stones, and carry them off for the use of the town. Your Lordships have seen before that the town did not ask leave to dig; but it appears here that they asked leave to carry off what they had quarried, which they would not have had a right to do without the leave of the tacksman. But at all events the reservation of David Smith, bargaining that he should not win any stones, is merely an acknowledgment of a man's tenant made to himself, by a private instrument between them, behind the back of the over-landlord, the Crown, by which the tenant agrees not to take the stones. Does that vest the right of the stones in the landlord? No such thing;—any thing but that. There is, my Lords, a class of evidence which is very frequently resorted to in courts of law, and which does not, perhaps, prove much; but still it is competent proof, and always goes for something. In cases where one party or

Page: 607 ↓

Page: 608 ↓

“Excepting herefrom the whole stone and sand quarries, and the houses belonging to them in the said park, with free ish and entry thereto, which the said earl reserves for himself or to sett to others.”
I need not remind your Lordships that this is no evidence whatever, except that such a lease was granted, and that such an exception was made. It is quite immaterial to this question what part he chose to let, or what he chose to reserve. Indeed his not letting the quarries might be because they were not his to let. Then the practice stated in 1777, I dare say, was considered as proving very much. In the factory account for the year 1777 of Mr. Craig, factor for the earl, there is the following entry:25th September 1777.—Received from David Waugh, rent of Holyrood House Park, 460 l ., and for quarries, 40 l .;”and then it says, that “Waugh continued in possession and paid the same rents until Candlemas 1780;” and that is the whole evidence in the cause. I see nothing else, from beginning to end, to prove the proposition of the learned judges, which they say is fully proved in the cause, “that the keeper of the park has been in use, from the date

Page: 609 ↓

Page: 610 ↓

My Lords,having had recourse to the arguments of the Court, I have looked into the way in which some of the Judges of the First Division attempt to illustrate the proposition more generally dealt with by the Judges of the Second Division, and I certainly can find nothing to satisfy me in the least, either upon the general question, if usor were out of the case, or upon the disputed fact, of which I say there is no evidence in the cause, that prior to the grant, or even contemporary with the grant, there was any usor by the grantee or his predecessors (of whom he indeed had none), to any extent whatever of the right now claimed. I have thought it necessary to trouble your Lordships, out of my respect for the Court below, with these reasons as illustrative of the grounds upon which I am about to move your Lordships to reverse this decision; and I have thought it right also to point out the doors that are opened to irregularity by the practice of allowing averments to supply the place of proof, and permitting that to be taken as proof which is any thing and every thing rather than legal evidence.The House of Lords ordered and adjudged, That the interlocutor complained of be reversed.Appellants' Authorities .—2 Ersk. 9, 57—59; Forbes, 31st January 1822 (Fac. Col.); Facculati Lexicon, Ducange Glossarium; Lord Aboyne, 16th Nov. 1814 (Fac. Col.); Earl of Nottingham's Case, Manwood, 143; Lord Coke's Inst. 233, 536; Lear's New Forrest, 201; Earl of Haddington, 2 Wilson and Shaw, 478; 3 Ersk. 7, 12; Forbes, 29th Nov. 1827 (Fac. Col.) Respondent's Authorities .—Stat. 1617, c. 12.Solicitors: Mundell— Spottiswoode and Robertson,—Solicitors.