Scottish Court of Session Decisions

In October 1892 the Rev. William Jardine Dobie, minister of the parish of Kinghorn, presented a petition to the Presbytery of Kirkcaldy calling their attention to the state of the parish church, and the Presbytery in December 1892 found that the church was incapable of being repaired, and ordained the church to be taken down and a new one to be built. The heritors being dissatisfied with this order appealed to the Sheriff of Fife under the provisions of the Ecclesiastical and Glebes (Scotland) Act (31 and 32 Vict. c. 96). The Provost, Magistrates, and Town Council of the burgh of Kinghorn sisted themselves as parties to the appeal along with the heritors. The Sheriff remitted to Mr Sydney Mitchell, architect, Edinburgh, to report. He reported that the church could be repaired, and on 2nd May 1894 the Sheriff found—“(1) That the repairs proposed by the heritors would not make the church sufficient and suitable for public worship; (2) that the church was capable of being repaired so as to be suitable and sufficient for public worship, and that, in accordance with the law as at present existing, it should be so repaired, and that the repairs and alteration described by Mr Mitchell on pages 11 to 15 of his report would make the church sufficient and suitable for public worship with accommodation for 684 sitters” (the old accommodation being for 698 sitters), “and remitted to Mr Mitchell to prepare plans and specifications of said repairs and alteration, take in and accept estimates, and see to the carrying out of the work.”

The repairs were executed under the direction of Mr Mitchell, and it became necessary to levy an assessment to meet the expenses.

A Special Case was presented by (1) the heritors of the parish of Kinghorn assessable according to old Scots valuation, (2) the heritors of the parish assessable on their real rents in the valuation roll, and (3) the Provost, Magistrates, and Town Council of the burgh, for the purpose of determining the question upon whom the assessment was to be levied.

The following facts, inter alia, were stated in the case. After describing the very extensive repairs which had been executed on the structure of the church, clause 6 proceeded—Further, parties are agreed that when all accounts incident to the work of carrying out the plans of Mr Mitchell are rendered and paid, a sum of not less than £2889 will have been expended on the church; that a completely new church could have been erected at a cost of £3500 or thereby; and that the greater portion of the area of the church has been so affected by the repairs and alterations that the sittings will require to be re-divided among parties who held allocated sittings immediately before the said work was commenced, assuming that such parties only will continue to have right to the area as now altered. (6 a) The whole area of the said church has never been allocated among the heritors according to their respective valued rents. Prior to the year 1859, and from a period at all events antecedent to 1759, the area of the church was occupied by the landward heritors, and by or on behalf of the burgh respectively, in proportions substantially equal. In or about the year 1859 certain alterations and repairs having been executed in 1853 and 1854, including a reseating of the church, a petition was presented by the managers of the royal burgh of Kinghorn, as representing the community thereof, against the valued rent heritors of the landward portion of the parish, praying the Sheriff to divide and allocate the sittings in the church, to make due provision for the minister of the parish and the poor thereof, and to divide the remainder of said sittings into two equal parts, one whereof to be set aside for behoof of the community of the burgh of Kinghorn, to be allocated amongst the members thereof by said managers, and the other to be divided and allocated by the Sheriff amongst the landward heritors in proportion to their valued rents. The Sheriff-Substitute, after providing for the minister, the session, and the poor, allocated the sittings of substantially one-half of the remainder of the area of the church among the said landward heritors in proportion to the valued rents, and of the other half to the managers of the royal burgh of Kinghorn for behoof of the community of the burgh. In the facts narrated in the petition it was stated that the expenses of executing the repairs ‘were, according to use and wont, paid as follows, viz., one-half by the petitioners … out of the common funds of the burgh.’ (7) The parish of Kinghorn is partly landward and partly burghal, including as it does the royal burgh of Kinghorn. The houses, &c., in the town of Kinghorn have in recent years extended beyond the ancient royalty to such an extent that the real rental of the town outside the ancient royalty now exceeds the rental within the ancient royalty, and the district at the eastern end

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of the parish, known as Bridgetown of Invertiel is a populous place and now forms part of the parliamentary burgh of Kirkcaldy. The district of Bridgetown further forms part of the quoad sacra parish of Invertiel, which was erected in the year 1869, and includes also part of the adjoining parish of Abbotshall. Bridgetown is about 2 miles from Kinghorn. (8) The parish church of Kinghorn is a very old one, and the inhabitants of the burgh had prior to 1759 been in use to occupy a considerable part of the area of the church, and the Magistrates and Town Council of the burgh paid one-half of the expense of repairing the church and manse. In that year, however, the burgh refused to continue to pay one-half of some repairs then ordered, and raised an action of suspension of a charge of payment given by the heritors. An action of declarator, on the other hand, was raised by the heritors against the burgh that the Town Council were only entitled to the area of the Parish Church that should correspond to the cess paid by them. These two actions, after procedure before the Lord Ordinary, were argued to the Court on a reclaiming-bill, with the result that decree was pronounced on 6th February 1761. The extract of said decree, inter alia, bears—“The Lords of Councill and Session aforesaid found, decerned and declared, and hereby find, decern and declare, that the community of the burgh of Kinghorn are intitled to retain possession of that proportion of the area of the kirk of Kinghorn presently possesst by them; and that the heretors of the landward parish are also intitled to retain possession of that proportion of the area of the said kirk presently possesset by them; without prejudice to the heretors of the landward parish dividing the said proportion of the kirk ascertained to belong to them in common, and to the community of the burgh dividing the proportion of the said area ascertained to continue with the community; and, of consent, found, and hereby find, that the community of the burgh of Kinghorn has been in use to pay one-half of the repairs of the kirk, manse, and office-houses: Therefore that they are lyable in the one-half of the present repairs, and also in the half of all the repairs on said kirk, manse, and office-houses in time coming.” With reference to said decree it was explained that the finding of consent therein appears to have been the result of a compromise arrived at after argument had been submitted to the Court. After this decree the burgh paid till 1854 one-half of whatever repairs were made on the church and manse.

In 1855 a new manse was built, and the heritors proceeded to assess the burgh for one-half of the cost thereof as they had done before, but the burgh refused to pay the assessment. At a meeting of the parties on 19th July a compromise was come to and embodied in a minute from which the following is an excerpt:—“It was then stated that the present meeting had been called in consequence of the managers of the burgh of Kinghorn having declined to pay the one-half of the sum assessed at last meeting for the new manse, upon the ground that, in their opinion, although liable for the one-half of the repairs upon church and manse, they were not liable in the one-half of the expense of new buildings. After considerable discussion it was proposed on the part of the burgh that instead of one-half, it should be agreed that the burgh be assessed in one-fifth part of the total expense of the manse, site walls, and other expenses connected therewith, which proposal the heritors hereby agree to accept, without prejudice to the legal rights of the parties in future similar cases.”

The next assessment, which was for defraying the balance of the cost of the manse, was laid on on 27th June 1856, and was assessed “one-fifth from the town;” and the scheme of assessment made up by the collector stated that this was payable “without prejudice to the. right of parties in future similar cases.”

The next assessment was laid on 23rd September 1869, the larger part being for expenses incurred for the manse, and was made “on the heritors of the parish to be levied in the same way as last assessment.” The assessment roll contained a similar statement to the effect that the payment of one-fifth by the burgh was without prejudice.

The last assessment, which was for repairs of the church, was levied on 20th April 1878, and the assessment roll contained a similar reservation as to the fifth payable by the burgh.

Section 33 of the Valuation Act 1854 (17 and 18 Vict. c. 91) contains the following proviso:—“Provided always that when the area of any parish church heretofore erected has been allocated among the heritors according to their respective valued rents as appearing from the present valuation rolls, all assessments for the repairs thereof shall be imposed according to such valued rent.”

The questions submitted to the Court were:—“(1) Whether the said assessment falls to be levied to the extent of one-half on the burgh of Kinghorn, and to the extent of the other half on the old valued rent heritors, according to their valued rents? (2) Whether the assessment for said repairs and alterations on said church falls to be imposed on the individual owners of lands and heritages in the parish of Kinghorn, according to their real rents as shown in the valuation roll? (3) Whether the said assessment falls to be levied to the whole extent on the old valued rent heritors according to the valued rents?”

The contentions of the parties to the case were as follows:—“In the circumstances before set forth the first and second parties maintain that the assessment for said alterations and repairs, falls to be levied to the extent of one-half on the burgh of Kinghorn, and to the extent of the other half on the old valued rent heritors, according to their valued rents; and the third parties maintain that the said assessment falls to be imposed on the

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individual owners of lands and heritages in the parish of Kinghorn, according to their real rents as shown in the valuation roll; but, as alternative contentions to the foregoing, in the event of the first question falling to be answered in the negative, the second parties maintain that the said assessment falls to be levied to the whole extent on the valued rent heritors according to their valued rents, and the first parties also in the same event adopt the contention above set forth for the third parties.”

Argued for the first parties—The rule of liability had been fixed by the decree of 1761, which defined the custom existing in the parish. That rule had never been unconditionally departed from, and the custom had never been abandoned. It was true that in certain instances after 1854 the assessment had only been laid upon the burgh to the extent of one-fifth, but in every case this was the result of a compromise, and the rights of parties in the future were specially reserved. Custom such as this could only be destroyed by indications of consent, which showed that the matter had been thoroughly considered, and the custom definitely and unreservedly departed from with the consent of both parties. Accordingly, as long as the church existing in 1761 still existed, that custom must be observed. The decision of the Sheriff, who was final on this point, was that the alterations and repairs, extensive though they might be, did not amount to building a new church, and it must therefore be assumed that this was the same church. There was nothing against the proposition that the custom of a particular parish would prevent the application of a rule of law which might otherwise apply— Duke of Abercorn v. Presbytery of Edinburgh, March 17, 1870, 8 Macph. 733; Heritors of Kinghorn v. Magistrates of Kinghorn, February 6, 1761, M. 7918; Feuars of Peterhead v. Heritors of Peterhead, June 24, 1802, 4 Paton 356. Stiven v. Heritors of Kirriemuir, November 14, 1878, 6 R. 174, showed that the third parties, to support their contention, must prove that there was a new church. (2) Assuming the legal effect of custom to have been destroyed, then the repairs should be assessed on the real rent heritors— Downie v. M'Lean, October 26, 1883, 11 R. 47; Highland Railway Company v. Heritors of Kinclaven, June 15, 1870, 8 Macph. 858, at 860.

Argued for second parties—On the first alternative the second parties adopted the argument of the first parties. (2) Alternatively, the burden must fall upon the valued rent heritors, for the second parties had no right to sittings in the church. The seats had been allocated in 1859, half to the burgh and half to the valued rent heritors. But in the cases where the real rent heritors had been held liable there had been a question of rebuilding the church to accommodate the whole heritors.

Argued for the third parties — (1) The parties to the decree of 1761, which was of consent, had no power to bind their successors. Moreover, the facts showed that this was only a regulation for the time being, and when circumstances changed the parties had no hesitation in departing from it, as was shown in a number of instances from 1855 onwards. Nor was the church the same as the one existing in 1761. The Sheriff's report was not conclusive; he really decided nothing more than that Mr Mitchell's proposition was better than that of the presbytery. It was impossible on the facts to call these extensive works anything but the building of a new church. But assuming the church to be the same, there was really no case where custom was held to overrule what would otherwise be the law. The case of the Duke of Abercorn came nearest to it, but that was a peculiar case where there were only four valued rent heritors, who had controlled the whole church from time immemorial, and had let the seats and applied the proceeds in repairs, &c. (2) The assessment should be laid on the real rent heritors. That principle had been applied in a number of cases, of which the Kinclaven case was a leading one. Indeed, since the Peterhead case there had been none except that of the Duke of Abercorn where it had not been applied. The proviso in sec. 33 of the Valuation Act had no application, because there had really been no allocation.

At advising—