Scottish Court of Session Decisions

The proprietors having interest in the commonty of Shapinshay, in Orkney, were the Crown, as in right of the Bishops of Orkney, Captain Balfour of Elwick, and Mr Laing of Papdale; these parties being the sole heritors in the island and parish of Shapinshay. Besides the dominium utile of part of the lands of Shapinshay, the Crown possessed the feudal superiority of the lands of Captain Balfour and Mr Laing, which were held by titles importing a right of commonty. The valuation of the Crown property in the parish, as instructed by the cess-books of the county of Orkney, amounted to £1594 Scots, which sum included the valuation not only of the lands belonging to the Crown in property, viz. £1074, but also that of the feu-duties payable from the other lands in the parish, viz. £520. Upon this cumulo valuation the Crown is rated for payment of cess and other county burdens. The total valuation of the parish is £2136.

In 1831, the Lord Advocate, for the interest of the Crown, libelling upon the act 1695, c. 38, for “the dividing of commonties,” whereby it is declared “that the interest of the heritors, having right in the said, commonties, shall be estimate according to the valuation of their respective lands or properties,” and on the 10th Geo. IV. c. 132, extending the provisions of this act to commonties in which the Crown has an interest, brought a process of division of the commonty of Shapinshay against Captain Balfour and Mr Laing, and the minister of the parish.

The Court granted commission to the Sheriff-Depute of Orkney, appointing him to conduct the division and report, in common form.

In this process, the Lord Advocate claimed for the Crown, 1st, a share of the commonty corresponding to her Majesty's interest therein, upon the footing of the valuation of the Crown property in the cess-books, as including the feu-duties; 2d, a præcipuum of one-fourth of the commonty in respect of the property of the whole commonty being vested in the Crown; 3d, the whole mines and minerals within the commonty; and 4th, the whole shores adjoining to the commonty under high-water mark. Captain Balfour and Mr Laing claimed respectively a share of the common, corresponding to the valuation of their properties in the cess-books, and also a share corresponding to the valuation of the feu-duties payable by them to the Crown.

The minister claimed a share of the common equivalent to the right and interest of the benefice.

In regard to these claims the Commissioner issued notes of his opinion, holding the claim of the Crown to a præcipuum to be unfounded, on the authority of the case of Henderson v. M'Gill, Feb. 21, 1782; requiring farther information as to the claim of mines and minerals, and holding the Crown's claim to the adjoining shores under high-water mark not to be embraced under the commission. As it appeared from the evidence that the minister of Shapinshay had been in the constant practice of exercising rights of commonty upon the common, he sustained the minister's claim. The chief question was as to the valuation effeiring to the feu-duties payable to the Crown; Balfour and Laing contending that it ought to be deducted from the whole valuation of the Crown property, and at the same time ought to be added, as part of the value of their lands, to their proper valuations, in ascertaining the respective interests of the parties in the common; while it was maintained on the part of the Crown that the full valuation of £1594 ought to be the rule of its interest, the Crown having for time immemorial paid the cess and other burdens corresponding to such valuation, and no division of the cumulo valuation ever having taken place. The Commissioner was of opinion that the valuation corresponding to the Crown feu-duties must be deducted from the valuation in the cess-books in ascertaining the Crown's interest, but that it ought not to be added to the valuations of the vassals; and thereupon reported the matter to the Court for instructions as to the principle of division.

The Lord Ordinary pronounced the following interlocutor, adding the note subjoined ^*:—“Finds, that in terms of the act 1695, c. 38, the division of this commonty must be made among the several heritors claiming a share thereof, according to the valuations of their several lands or properties: Finds, that where lands are held by infeftments in feu, the title to the share in the commonty corresponding to such lands, by the valuation thereof, is vested in the vassal holding the dominium utile: Finds, that no right to any share in respect of such lands is vested in the superior by virtue of his title of superiority, or dominium directum: Finds, that the feu-duties payable to the superior, though valued in the cess-books for the payment of the public tax, do not, according to the true meaning of the statute, constitute such an estate in land or property, distinct from the lands held in feu in respect of which they are paid, as to entitle the superior to any share of the commonty in respect of such feu-duties: Finds, that, in the present case, the valuation of the feu-duties payable to the Crown, in respect of lands held in property by the other parties, must be deducted from the whole valuation of £1594, 6s. 10d. Scots, standing in the cess-books in the name of the Crown, as now in the right of the Bishop of Orkney, and that the claimant; his Majesty's Advocate, can only be ranked in the division for the balance of such valuation: Finds it admitted, that if this principle be laid down by the Court, the just rule for determining the proportion of the whole valuation corresponding to the lands held in property by the Crown, when separated from that corresponding to the feu-duties, is that explained in detail in the observations lodged with the Commissioner by Samuel Laing, Esq.; and that, according to that rule, the amount of the valuation of the Crown's property lands is £1074, 5s. 2d.: Finds that there is no just or legal ground on which the other claimants can demand that, in this division, the amount of the valuation of the feu-duties of their lands standing in the cess-books in the name of his Majesty, shall be added to the proper valuations of the lands themselves standing in the names of the heritors; and, as no other points have been discussed before the Lord Ordinary, appoints the cause to be enrolled, in order that, so far as it may be necessary, a precise interlocutor may be adjusted for the guidance of the Commissioner in proceeding farther in the division: Finds no expenses due to any party.”

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* “ Note.—The Lord Ordinary must consider it as entirely settled, that, in a division of commonty under the statute 1695, the superior of lands held in feu, with clauses importing rights of commonty, has no right to a share of the common, or to any prsecipuum, in virtue of his title of superiority in the lands feued. Where all the lands feued stand on titles importing rights of commonty, and the superior has no lands retained in property which by the original titles and possession had the benefit of the commonty, the inference must be, that the whole land of the commonty has been alienated to the feuars. Where the superior has still lands in property entitled to the benefit of the common, he must receive a share corresponding to the value of such lands. Where there are lands feued, but with clauses importing only rights of servitude in the common, the property, quoad hoc, is held to remain with the superior, and a share must be allotted to him in the first instance corresponding to the valuations of the lands so held with rights of servitude, besides what he gets on account of his own property lands, Leaving the rights of servitude to be satisfied by means of the portion so allotted. This seems to be the result of the cases of the Earl of Wigtown against his feuars, Jan. 23,1739 (Morr. 2287); Duke of Hamilton v. Johnston, &c. July 30, 1768 (Note to Fac. Coll. vol. xvi. p. 688); and Duke of Buccleuch v. Erskine, &c. June 16, 1812.

“There is no precedent, as far as the Lord Ordinary sees, for admitting generally any claim for a share to the superior in respect of feu-duties. The case of the Duke of Douglas v. Baillie, February 2, 1740, merely determined that the valuation must rule, and not the proportional possession by usage. The case of Sharpe v. Carlile, June 16, 1748 (Morr. 2478), was, that lands were entitled to a share by the valuation, though they had a servitude on another common. In the case of the Duke of Buccleuch against Erskine, the point found was, that where there were feus with rights of servitude merely, the superior must be ranked for a share corresponding to the valuation of the lands in feu having such servitude only. There is a mistake in the Faculty Report, in not stating the prayer of the reclaiming petition correctly. The Lord Ordinary has seen Lord Meadowbank's papers, and certainly that was the only point determined. In Small against Ferguson, February 10, 1804, it was simply held, that where a valuation included a mill, mill-lands, and multures, it must be taken as it stood, and no deduction could be allowed. The case of Bruce v. Grierson, December 11, 1823, is foreign to the question, as it related merely to the competency of a division in Zetland, where there is no valuation.

“As there is no precedent for such a claim generally, neither is there principle for it in the present case. The only peculiarity is, that the Crown pays the cess on the valuation of the feu-duties, and it stands in the Crown's name. But the presumption is, that this was by special agreement at the constitution of the feu, and that it was paid for in the feu-duty stipulated. It does not alter the reality that the lands are the property of the vassal, and that, from the nature of the thing, the right to the feu-duties cannot give right to the use of the common.

“It is surely at least equally clear, that the proposal of the vassals to add the feu-duties to their valuation cannot be admitted. This would be to give them a share of the common, not on account of their lands or properties, but on account of the burdens affecting them, which, the Lord Ordinary imagines, never was heard of before.

“It is perhaps unnecessary to observe, that the particular statute on which this action is founded having so far removed the exception in the Act 1695, the case in other respects must be regulated by the provisions of that act.

“There is, in the discussions before the Commissioner, some aiming at a question regarding the title of the minister of Shapinshay for his glebe. The Lord Ordinary does not know whether that is to be made a point here.”

Balfour and Laing reclaimed; and, cases having been ordered, they pleaded—

1. The Crown is not entitled to be preferred to a share of the common, on account of the valuation of the feu-duties. This claim is equivalent to demanding that the Crown should take from its vassals the subject of the original grant in their favour, the feu-duties being paid in consideration of acquiring and continuing to enjoy that very right of property in the commonty which the Crown is now trying to regain. If the grant to the vassals conveyed, inter alia, the right of common, it follows that the common cannot be taken away by reason of the yearly feu-duty paid on account of it. The plea maintained by the Crown is besides inconsistent with the rational construction of the Act 1695, c. 38, according to which, “property” means land or other heritable tenement, not feu-duties, and “heritor” means proprietor, not superior. A superior is not liable in parochial burdens, such as the building of manses and assessment for the poor; ¹ but if, quoad his feu-duties, the superior is to be exempted from the burdens, he cannot consistently be found entitled to the benefits which attach to property.

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¹ Dundas v. Nicolson, July 2, 1778 (M. 8511); Dunlop's Parochial Law, p. 386.

2. The claimants are entitled to be preferred to a share of the commonty, in respect of the valuation of the feu-duties of their lands payable to the Crown; and this, because such valuations truly form valuations of the lands of which they are proprietors. They only claim that their lands shall be valued without deducting from the total value the amount of feu-duty. It will not be denied that the feu-duty payable for both infield and outfield (or common) was originally equal to the full annual value of the property conveyed to the vassals. Suppose the valuation to have been made immediately after the grant, the valued rent and feu-duty would have been the same; and suppose that the Act 1695 had then been passed, and an action of division brought, the claim of the vassal to derive a share of the commonty could not have been resisted. But if this be so, then his right could be estimated by no other standard than the valuation of the feu-duties, if the valuation was to be the rule by which the Court was to be guided. The vassal must in that case have been preferred, according to the valuation, to a share of the commonty proportioned to the feu-duties, or he must have been deprived of the whole interest in that very common, the interest of which he meant to purchase, and did purchase, by his agreement to pay feu-duty. The doctrine contended for by the Crown is plainly inconsistent with this view, which in principle applies to the present case. It is also inconsistent with the analogy of the rule of valuations adopted with reference to the old elective franchise; a Crown vassal having been held to be entitled to count as part of his valuation the valuation of the superior's feu-duties, though entered in a separate part of the valuation roll, and it being considered of no consequence whether the cess was paid by the superior or the vassal. ² There is, moreover, a direct analogy in favour of the plea of the present claimants in the doctrine above referred to, that the superior is not liable, in respect of the feu-duty, for the expense of the reparation of a manse, and that the extent of the contribution of the vassals is not to be determined by a deduction of the feu-duty from the real rent paid by them; ³ since the vassal, if he cannot deduct the feu-duty, but must pay according to his whole rent, in a case of imposition of a burden, ought to be entitled to count the feu-duty, where the question is as to benefit.

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² Freeholders of Orkney v. Traill, Feb. 23, 1791 (M. 8639); and Bell's Election Law, p. 58 (note) and 208; Erskine v. Glassford, Jan. 18, 1812 (F. C.)

³ Dundas v. Nicolson, supra; Dunlop's Parochial Law, p. 146 (note.)

For the Crown it was pleaded—

1. There are no grounds to justify a deviation from the rule of division of commonties expressly prescribed by the statute, viz., the “valuation of the lands and properties” of heritors; or to sanction the deducting from or adding to the valuation set down in the records of the Commissioners of Supply, as the valuation on which cess and other public burdens were to be paid. The statutory instructions to the Commissioners for fixing the valuation, and which were prior to the Act 1695, show that all kinds of “property” (including of course feu-duties), were to be comprehended therein; ¹ and by the subsequent practice of the Court, the cumulo valuations upon which cess is paid are taken as the sole criterion of a right to a share in a commonty, without reference to the nature of the subjects on which the valuation was laid. ²

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¹ Thomson's Acts, vol. VI., pp. 30, 496, 498.

² Duke of Queensberry v. Johnston, Jan. 22, 1771; Small v. Fergusson, Feb. 10, 1804.

2. If, upon the principle now stated, the Crown is entitled to a share of the commonty effeiring to the valuation of its free rents as appearing in the cess-roll, and without any deduction, it necessarily follows that the shares thereof awarded to Balfour and Laing must be in proportion to their valued rents, without any addition. The practical result for which these parties contend is, that they are to have a share of the commonty, not in respect of lands or properties belonging to them, but of feu-duties and land rents, being burdens on their lands and properties, and not belonging to them, which is a result manifestly extravagant. The “valuation” referred to in the statute can only mean that of the lands or properties owned by the heritors respectively, there being no warrant or authority in the statute for extending the valuation to which a right of commonty is attached beyond that standing in the heritor's name, and applicable to subjects truly belonging to him in property.

Thereafter, the Court being equally divided in regard to the claim of the vassals to add the valuation of the feu-duties in question to the valuations of the dominium utile of their lands, though concurring in the first part of the Lord Ordinary's interlocutor, consulted the other Judges. The following opinions were returned;—