Scottish Court of Session Decisions

The pursuers in this action were the Provost, Magistrates, and Councillors of the burgh of Leslie, acting under and in terms of the Town Councils (Scotland) Act 1900, and the defenders were the Council of the Burgh of Barony. The pursuers sought declarator “that the whole subjects, lands, and other properties, heritable and moveable, funds, customs, properties, rights,

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privileges, and others, belonging to the Burgh of Barony of Leslie, are vested in and belong to the pursuers and their successors in office as the Provost, Magistrates, and Councillors of the Burgh of Leslie … that the defenders and all others claiming to be councillors of the said burgh by virtue of the charters mentioned in the summons, or in any other way, are no longer entitled to any part or share in the management or administration of the affairs of the community, or in the management or administration of the said subjects, lands, and other properties, funds, customs, and others belonging to the community, and that their whole duties, powers, functions, and privileges, as representing the community or burgesses thereof or as Magistrates, Councillors, or office-bearers thereof, have ceased and determined, and that it is now incompetent and illegal to constitute, appoint, or elect any Magistrates, Councillors, or other officers for the said burgh otherwise than in accordance with the provisions of the Town Council (Scotland) Act 1900: And that the pursuers have now the only good and undoubted title to possess, manage, and administer the said subjects, lands, and other property, heritable and moveable, funds, customs, properties, rights, privileges, and others of whatever kind, for behoof of the burgh and community of Leslie, as fully and freely as the same were or might have been possessed, managed, and administered by the defenders or other persons claiming to be the Town Council of the Burgh of Barony of Leslie prior to the adoption by the said burgh of the General Police and Improvement (Scotland) Act 1862.” …

By Crown charter under the Great Seal, granted by King James the Second, dated 21st March 1457, the town of Leslie was created into a free burgh of barony with a grant of market and fair and the customary rights of free trading. By charter dated 10th July 1539, in favour of George third Earl of Rothes, King James the Fifth ratified the creation of Leslie into a burgh of barony, and in addition to the rights of trade given by the charter of 1457 conferred upon the burgh the power of electing yearly bailies and other officers necessary for its government. By charter dated 8th December 1514, George third Earl of Rothes feued a portion of his lands in specified lots to certain feuars, who became the burgesses of Leslie. On the narrative that sasine had not been taken upon the last-mentioned charter, John fifth Earl of Rothes granted a feu charter, dated 3rd October 1627, in favour of the inhabitants of the burgh of Leslie, therein named, of certain specific feus, including the portions feued by the feu charter of 1514, and he conferred upon the said feuars all the privileges of burgesses of a burgh of barony, and, in particular, decerned and ordained the inhabitants and community of the burgh to have power of creating their bailies, treasurer, officers, sergeants, and free burgesses of the said Burgh of Barony. The disponees under the charter were infeft for their respective rights and interests, conform to instrument of sasine dated 5th October 1627, and registered in the Register of Sasines for the county of Fife and Kinross at Cryle the 18th day of November 1627. From a very early date the inhabitants of the burgh, acting under these charters, have been in the habit of electing a council of seventeen inhabitants for the management of the affairs of the burgh, the last election having been held on 24th October 1901, when the defenders to the present action were elected.

In 1865 the householders of Leslie adopted the General Police and Improvement (Scotland) Act 1862.

Section 41 of that Act provided that in burghs of regality or barony having magistrates and councils, the householders might vest such magistrates and councils with the office of commissioners for executing the Act, or might elect commissioners. The householders of Leslie adopted the latter alternative and elected commissioners. Sections 22 and 26 deal with the question of property, and are as follows:—Sec. 22—“Not withstanding anything in this Act in the contrary implied or expressed, and whether this clause be adopted by any burgh or not, it is hereby enacted that in all cases where the management of the police affairs of any burgh is transferred from any existing commissioners of police or other persons to the magistrates and council of such burgh, or to commissioners elected under this Act, the whole lands, heritages, assessments, claims, demands, and effects of every kind belonging to or vested in the commissioners of police or other persons from whom such management is so transferred, or in any person on their behalf, and all powers, rights, and privileges conferred on or vested in such commissioners of police or other persons by any Act of Parliament, in so far as not inconsistent with the provisions of this Act, shall be and are hereby transferred to and vested in the magistrates and council or commissioners to whom such management is so transferred, who shall be liable for the whole debts and obligations of the commissioners of police or other persons from whom such management is transferred, and in all cases where this Act shall be adopted in whole or in part such adoption shall not free or redeem the magistrates and council or commissioners of police of any part from any obligations incumbent on them at the date of such adoption, and all such obligations, together with the powers of assessment and other faculties therewith connected, shall remain in full force as if this Act had not been adopted.” Sec. 26—“The monies arising from the assessments hereby authorised to be levied, and all other property acquired by the commissioners in pursuance of the powers hereby granted, shall be and the same are hereby vested in the commissioners and their successors for the uses and purposes mentioned in this Act, and for no other purpose whatever.”

By virtue of the Burgh Police (Scotland) Act 1892, sections 20, 23, 24, and 25, the commissioners of the General Police and

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Improvement (Scotland) Act of 1862 became the police commissioners under the Act of 1892, and their election has regularly taken place under the provisions of the statute. Section 20 deals with the question of property, and is as follows:—“In all cases where the management for the purposes of this Act of any burgh is by the application of this Act transferred from any existing commissioners of police or other persons acting under any of the general Police Acts or any local Police Act to commissioners under this Act, the whole lands, heritages, assessments, claims, demands, and effects of every kind belonging to or vested in the commissioners of police or other persons from whom such management is so transferred, or in any person on their behalf, and all powers, rights, and privileges conferred on or vested in such commissioners of police or other persons by any Act of Parliament, charter, or writing, in so far as not inconsistent with the provisions of this Act, shall be and are hereby transferred to and vested in the commissioners under this Act, and they shall be liable for the whole debts and obligations of the commissioners of police or other persons from whom such management is transferred… . And where by any Act of Parliament any powers and duties are conferred or imposed upon the commissioners under the General Police Acts, such powers and duties shall now be vested in and discharged by the commissioners under this Act.”

By the Town Council (Scotland) Act 1900, section 8, it is provided that “the whole rights, powers, authorities, duties, liabilities, debts, … of ( a) commissioners under the Burgh Police (Scotland) Act 1892, … and the whole lands, works, and other assets vested in them … be transferred to, imposed on, and vested in the town council.” By section 33 it is provided—“The existing town council or commissioners and magistrates of every burgh shall be the town council and magistrates under this Act, and the existing commissioners of a police burgh shall individually be the councillors thereof, but their retirement and the filling up of vacancies shall be regulated by this Act.”

The property belonging to the Burgh of Barony was the following, as set forth in a joint-minute of admissions—“(1) Certain common lands (hereafter referred to as ‘the commonty’) extending to 30 acres or thereby. (2) Arable lands extending to 12 acres or thereby. (3) Feu-duties arising from portions of the aforesaid commonty which have from time to time been feued. (4) Rent of stances used at the annual spring market. (5) Rents for accesses from private gardens in the new town to the commonty. (6) Buildings of the Town Hall. (7) Twenty shares of the Leslie Joint-Stock Water Company. (8) A legacy of £500 left by the late Robert Miller, Esquire. (9) Various charters, written documents, books, accounts, plans, and various other effects and moveables. All the above are hereinafter specially described and dealt with.

The said commonty is not described in the burgh charters but is described in an early minute book of the Burgh of Barony, the minute being signed by the granter of said charter, the Earl of Rothes, and the Bailies. The commonty was possessed by the community of the Burgh of Barony at the time the before-mentioned charter was granted in 1627, if not earlier, and the boundaries of the commonty have from time to time been altered. The said commonty has been from time immemorial used solely for the following purposes, viz.—For grazing cows, casting feal and divot by the feuars of the Burgh of Barony, as a bleaching green, and for recreation generally, subject to the regulation and control of the Barony Town Council. Feuars of the Burgh of Barony of Leslie had and have the exclusive right of pasturing cows on the commonty, each feuar holding one rood being entitled to graze one cow. Tenants of feuars have also from time immemorial been allowed to graze cows on the commonty, but only on payment of grass mail. Several feuars at the present time pasture cows on the commonty, and from time immemorial the feuars have exercised this right. Such right is a valuable privilege and is considered to enhance the value of the feuars' properties. The Barony Council have let the pasturage to persons who are not feuars or tenants of feuars and charged a rent therefor. The annual value of the commonty may be taken to be about £50 yearly, and the average rental received during the past three years from the commonty has been £10.

The before mentioned arable land extending to 12 acres or thereby is held upon written titles. The said arable land now held by the Burgh of Barony was not part of the original grant, but was acquired by contracts of excambion at various times from the Countess of Rothes and others in exchange for portions of the commonty alienated in lieu thereof. The said excambed lands are declared in the titles thereof to be held by the disponees for themselves and behalf of the haill community of the said baron burgh as a part of the common lands of Leslie, and for the benefit of the feuars of Leslie, in the same way as they had previously held the other common lands. Said lands are let at the yearly rent of £22.

The feu-duties referred to consist of the duties payable by certain vassals in respect of portions of the commonty which have been feued out by the Burgh of Barony from time to time. In particular (1) Feu-duty amounting to £4 payable by the Leslie Gas Company for a half acre or thereby of commonty feued to them. (2) Feu-duty of 5s. payable by the Leslie Water Company, now by the Leslie Town Council, for ground occupied as a site of a house used by the company. (3) Feu-duty payable for Croft Cottage, which is built on part of the commonty, and the amount of which feu-duty is determined by the fiars prices for the year. The amount for the past year was 17s. 6d. (4) Feu-duty for houses at Croft, built on a portion of said

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commonty and now held by Miss Mary Hardie, the amount of the feu-duty being determined by the fiars price for the year. The amount for the past year was 7s. 6 1 2d. (5) The feu-duty for the site of the old Green Inn belonging to the Honourable George Waldegrave Leslie, built upon part of the commonty, and the amount of which feu-duty is determined by the fiars prices for the year. The amount for the past year was £1, 11s. 4d.

The stances are let to stall-holders, showmen, and others at the annual fair or market held in Leslie in April of each year and at other times. The said accesses from private gardens in the New Town to the commonty are charged for at the rate of 1s. to 2s. 6d. each yearly, but the privilege is granted to the feuars of the Old Town without charge. The rents payable by such stall-holders on the average amount to £12, 10s. and for such accesses to £2, 10s. yearly.

The buildings of the Town Hall were erected in the year 1872 at a total cost of £954, 0s. 8d. The site for the Town Hall was granted by Mr Andrew Wyllie of Prinlaws in exchange for ground granted by the Barony Council to him for the purpose of widening the public footpath leading along the main street to his works at Prinlaws. The said Andrew Wyllie also granted free of charge the whinstone of which the hall is built. The subscriptions were raised from the community of Leslie generally, other natives of the town who had left, and several gentlemen in the neighbourhood. The Barony Council possessed a hall previous to the erection of the present building, The old hall was sold for £100, and the price thereby received from the sale was applied pro tanto in meeting the cost of the new hall. In order to complete the building the sum of £600 was borrowed under a bond and disposition in security, but of this sum £100 were repaid by the Barony Council prior to the bazaar after mentioned. In 1895 a public bazaar was held, and contributions towards the bazaar were given from the public of Leslie and neighbourhood, and the bazaar realised £415 or thereby. The balance of the sum required to pay off the bond was contributed by Mr James Smith of Dhuloch, near Inver-keithing, who was at one time a paper-maker in Leslie. The Barony Council promoted the movement for erecting the Town Hall and also promoted the bazaar. The title is taken in name of the Town Council of the Burgh of Barony of Leslie. The hall has been used since its erection for public meetings, political, social and religious, also for entertainments. The pursuers and all others excepting the Barony Council paid a rent for the use of the hall when required. In particular, the pursuers pay a rent of £2, 10s. per annum for the Police Court held within an ante-room of the hall. The administration of the hall has hitherto been and presently is in the hands of the Barony Council. No. 15 of process is a correct copy of the title on which the said hall is held. The revenue derived from the use of the hall has amounted on an average for the last five years to £50 annually.

The shares of the Leslie Joint-Stock Water Company stood in name of the magistrates of the Burgh of Barony of Leslie. The said shares were granted to the said magistrates as a consideration by the company for leave to erect a water tank on part of the property belonging to the Burgh of Barony, and also as a consideration for the right of wayleave through the said commonly. The whole undertaking of the Water Company has now been purchased by the Town Council of the Burgh of Leslie and the shareholders have been repaid the full value of their shares, The sum received by the Barony Council in payment of the shares held by them amounted to £45. The income derived from said shares amounted on an average for the past five years to £1, 10s. annually.

The legacy of £500 referred to was bequeathed to the Magistrates or Bailies and Councillors for the time being, in Leslie, in the year 1898, by the late Robert Miller Esquire, Edinburgh, a native of the Burgh Barony, the income to be used for improving the amenity of the town, or for improving the common, or for any other purposes the Magistrates and Bailies or Town Councillors might consider best for general good of the public of the said town. The legacy is burdened with and subject to a liferent, and no income has yet been received from this source.

On or about the 29th September 1865 the householders of Leslie adopted the provisions of the General Police and Improvement (Scotland) Act 1862. Police Commissioners were duly elected in terms of the provisions of the said Act down to 1893, when the election duly took place under the Burgh Police (Scotland) Act 1892, and after 1903 under the Town Councils (Scotland) Act 1900. The original Burgh of Barony erected by the charters was mainly but not wholly within the limits of the police boundaries of the burgh fixed by the Sheriff in 1865. The boundaries of the police burgh were extended in the year 1887, and include the district known as Mansefield. The only portion of the Burgh of Barony property outwith the police boundaries is the arable land extending to 12 acres or thereby. The said arable land was, as already mentioned, acquired by excambion in lieu of portions of the commonty which have been alienated, and which portions so alienated were partly out with the boundaries of the police burgh. A plan is produced showing the boundaries of the police burgh as extended, and also showing the area of the ‘Old Town’ as the Burgh of Barony is locally designed.

The population of the said police burgh, according to the last census, was 2164, of which the population of the ‘Old Town’ or Burgh of Barony is estimated at one-half.

The whole revenues derived from the Burgh of Barony, amounting in all to £115 per annum or thereby, exclusive of the income to be derived from said legacy of £500, have been and are administered

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by the Barony Council. These revenues have never been administered by the Barony Council on behalf of the general community of Leslie. The police burgh of Leslie, as will be seen from the aforesaid map, is not conterminus with the Burgh of Barony. A large portion of the police burgh known as the ‘New Town’ is outwith and quite distinct from the Burgh of Barony. Amongst the distinctive features of the Burgh of Barony is the tenure of property there held of the Rothes estate. In the Burgh of Barony property is held by feudal tenure, whilst in the New Town property held from said estate is leasehold. No portion of the revenues of the Burgh of Barony has ever been applied for the benefit of the community of the New Town. These revenues have from time immemorial been applied for the benefit of the community of the Old Town only. In particular, said revenues have been applied to the following purposes, viz.—(1) For the administration of the Burgh of Barony— e.g., salaries of officials, election and suchlike expenses. (2) For payment of rates, taxes, and public and parochial burdens, and upkeep of the various properties. (3) For improving the amenity of the Burgh of Barony, draining the commonty, erecting and maintaining seats on commonty, repairing footpaths on commonty, &c. A very large sum has also been spent in renovating and maintaining the Town Hall. Prior to 1895 a large portion of the income was utilised to meet the interest upon the Town Hall debt. Since then surplus income has mainly been accumulated and expended upon draining the Commonty and improving the Town Hall.”

The pursuers contended that by virtue of the various Acts set forth they had taken the place of the Barony Council; that the whole of the property of the Burgh of Barony had vested in them, and that they were entitled to apply it for the purposes of the extended Burgh of Leslie as it now existed.

The defenders contended that they were entitled to retain and administer the whole property, and claimed further as feuars to have a private and patrimonial right in the property and the revenues of the Burgh of Barony. They founded on the 27th section of the Burgh Police (Scotland) Act 1892, which provides for the saving of patrimonial rights, and is as follows:—“(1) When by the operation of this Act the right to elect the municipal authority is transferred and taken away from the existing body of electors, and any dispute arises as to whether any right or privilege exercised by all or any of such is a public or a private and patrimonial right, such dispute shall be decided by the Sheriff, but an appeal shall lie to the Court of Session; (2) Nothing contained in this Act shall affect the patrimonial rights of any body of feuars at the passing of this Act administered by the town council of any burgh or barony.”