Scottish Court of Session Decisions

The Rating Exemptions (Scotland) Act 1874 (37 and 38 Vict. cap. 20), sec. 1, enacts—“No assessment or rate under any general or local Act of Parliament for any county, burgh, parochial, or other local purpose whatsoever, shall be assessed or levied … upon or in respect of any ground exclusively appropriated as burial ground.”

William James Wood, collector of poor, school, and other rates for the parish of Glasgow, pursuer, brought an action against the Western Cemetery Company, Limited, Glasgow, defenders, for payment of £144, 11s. 3d., being the amount of assessments imposed by the Parish Council of Glasgow for the year 1909–10 on the defenders, as owners and occupants of the Western Cemetery, situated at Lochburn Road, Westfield, Maryhill, Glasgow.

The pursuer averred that the defenders had acquired and carried on the cemetery with the object of making profit by disposing, for money consideration, of rights of sepulture in it to members of the public who contracted with them for the acquisition of such rights, and that they earned large profits from the undertaking.

The defenders pleaded—“1. The pursuer's averments being irrelevant and insufficient to support the conclusions of the summons, the action should be dismissed. 2. The defenders' property, in respect of which the assessments now sought to be recovered were imposed, being exclusively appropriated as burial ground, and consequently exempt from assessment in terms of the Rating Exemptions (Scotland) Act 1874, the defenders should be assoilzied, with expenses.”

On 1st November 1910 the Lord Ordinary ( Skerrington) sustained the first plea-inlaw for the defenders, and dismissed the action.

Opinion.—“The question in this case is whether a cemetery which belongs to a cemetery company and is used for the purpose of making profit by selling rights of sepulture therein is exempted from local taxation as being ‘exclusively appropriated as burial ground’ within the meaning of the Act 37 and 38 Vict. cap. 20. I was informed that in practice such exemption has been allowed. The same statute exempts churches, &c., ‘exclusively appropriated to public religious worship.’ This latter exemption was considered by the Court in the case of Trustees of College Street U.F. Church v. Parish Council of Edinburgh, January 31, 1901, 3 F. 414, 38 S.L.R. 265. There does not, however, appear to be any decision as to the exemption of cemeteries from taxation.

“Counsel for the pursuer (a collector of rates) argued with great force that the exemption from taxation of a cemetery used as a source of profit to its owners was an anomaly, and constituted an injustice to the other ratepayers which Parliament could not have contemplated. He argued that the words of the statute were satisfied by holding that the exemption applied to public cemeteries such as parish churchyards or burial grounds established under the Act of 1855, and (possibly) to cemeteries which are dedicated as such by private trust. In such cases there is no question of making a profit out of the burying ground; and further, the dedication is complete because the public, or certain sections of the public, are entitled to insist upon the whole of the ground being used for burial purposes. In the case of a private cemetery like the one under consideration, the pursuer's counsel did not dispute that the portion of the ground actually occupied by lairs is exclusively appropriated as burial ground not merely de facto but also de jure. The law forbids any wanton disturbance of a grave, and it might be invoked not merely by a lair-holder

Page: 931↓

but also by a relative of the deceased. But he argued that the ground already given off for lairs is practically of no value to the Cemetery Company, and that the value of the cemetery as a profit-producing subject consists in the portion of the ground which has not yet been given off or ‘appropriated as burial ground.’ This argument does not, in my opinion, give sufficient weight to the fact that when the owner of a private cemetery has once allowed interments to take place he subjects himself to serious restrictions as to the use which he can lawfully make of the remainder of the ground—see Cunningham v. Edmiston, June 23, 1871, 9 Macph. 869, per Lord Gifford (Ordinary), p. 875, and Lord Deas, p.885, 8 S.L.R. 576. In the absence of any relevant averments to the contrary, I must assume that the only profitable use which the defenders, the Cemetery Company, could lawfully make of the unoccupied portion of the ground, would be to use it as a burial ground, a phrase which in my opinion is not confined to actual interments, but might include other uses appropriate to a burial ground, such as the erection of a mortuary chapel or a cenotaph.

In these circumstances I am of opinion that the defenders' cemetery is de facto exclusively appropriated as burial ground, and that it is immaterial to point out that the defenders may, if they please, cease to selllairs and so allow the unoccupied ground to remain unprofitable. The view above expressed as to cemeteries is consistent with the construction which I should be disposed to place upon the exemption of churches or premises exclusively appropriated to public religious worship. I do not think that it is a condition for obtaining the exemption that the church should be held under a title which forbids it to be used for any purpose except public worship. It is, I think, enough that it is de facto so used under circumstances which give rise to the inference that the user is of a more or less permanent character. The case of a cemetery is really a fortiori of the case of a church. As I have already explained, the vacant portion of the cemetery cannot (generally speaking), either de facto or de jure, be put to a profitable use for secular purposes, whereas there are voluntary churches in Scotland which might be used for secular purposes without alteration of their structure or violation of the law.

I accordingly dismiss the action, but it will be open hereafter to the pursuer to allege and prove, if he can, that there are portions of the so-called cemetery which are not in any reasonable sense appropriated as burial ground.”

The pursuer reclaimed.

Before the hearing took place the parties lodged a joint-minute of admissions in which it was stated, inter alia—“5. The whole lands were acquired for cemetery purposes, but until actually required and laid off for burial purposes the remaining ground was let to a farmer for agricultural purposes, the whole ground so let from time to time being returned for separate valuation and all assessments thereon being duly paid. 7. (1) That originally the defenders fenced off or enclosed as a cemetery ground a portion only of the … total area … extending to 14 3 4 acres or thereby; (2) that the remainder of said total area (excepting a road along the southern boundary extending to 65 acres) was then let by the defenders for agricultural purposes; (3) that the defenders have from time to time increased the extent of ground fenced off or enclosed for burial purposes by shifting the position of the fence, and bringing within the same successively parts of the ground previously let for agricultural purposes; and (4) that the portion of the total area … extending to 27·71 acres or thereby represents the extent of ground presently fenced off and enclosed for burial purposes. 12. That the whole area of 27·71 acres or thereby now fenced off or enclosed for cemetery purposes … is laid out as lairs for burial, with the necessary carriage drives, walks, grass and flower plots, and the said superintendent's house, &c.; that said 27·71 acres are divided into various sections containing lairs, the right of burial in which has been or is in course of being sold by the defenders on the terms and conditions and at the various scales of prices set forth in the rules and regulations, … and common lairs in which interments have been and are being made for a pecuniary consideration as stated in said rules and regulations; that the whole subjects before referred to, viz., (1) those let for agricultural purposes, (2) those feued to the Cremation Society, (3) the Jewish Mortuary Chapel, and (4) the superintendent's house and offices, do not form any part of the subjects entered in the valuation roll as the Western Cemetery, about the assessability of which the present action has been raised. 14. That the title conferred by the defenders on the purchasers of lairs or vaults is solely a right of burial in said cemetery.… 15. That no parish council rates or other assessments have hitherto been imposed on or paid by the defenders in respect of the foresaid subjects belonging to them, in so far as fenced off or enclosed for burial purposes. 16. That the profit derived by the defenders from the business carried on by them, which, however, partly represents return of capital, has been sufficient to yield an average dividend of 4·7 per cent. per annum to the preference shareholders, and of 5·03 to the ordinary shareholders.”

The pursuers argued—The ground here was not exclusively appropriated as burial ground, and so did not come under the exemption of section 1 of the Rating Exemptions (Scotland) Act 1874 (37 and 38 Vict. cap. 20). It could not be said to be so appropriated when its primary use was to realise profits. It was not the intention of the Legislature to exempt profit-making undertakings— Trustees of College Street United Free Church v. Parish Council of Edinburgh, January 31, 1901, 3 F. 414, per the Lord President at p. 418, 38 S.L.R. 265, at p. 267; the Burial Grounds (Scotland) Act 1855 (18 and 19 Vict. cap. 68), sections

Page: 932↓

17–26. Counsel also referred to North Manchester Overseers v. Winstanley, [1907] 1 KB 27, [1908] 1 KB 835, [1910] AC 7; University of Edinburgh v. Greig, July 20, 1865, 3 Macph. 1151, rev. June 8, 1868, 6 Macph. (H.L.) 97, 5 S.L.R. 620; Craigton Cemetery Company, Limited v. Assessor for Lower Ward of Lanarkshire, February 2, 1889, 16 R. 802, 26 S.L.R. 527; Parish Council of Edinburgh v. Magistrates of Edinburgh, 1907 S.C. 1079, 44 S.L.R. 811. It was only ground de jure appropriated that the Legislature intended to exempt, and the ground here was not so appropriated. Although the defenders' ground had been fenced off and enclosed for burial purposes, only part of it had so far been used for these purposes. Ground could not be said to be exclusively appropriated for burial purposes until it was actually used for such purposes. The value of the cemetery as a commercial undertaking consisted in the portion of the ground not yet occupied by lairs, and until the ground was so occupied it was not exclusively appropriated as burial ground, and so was not exempted under section 1 of the Act.

Argued for the defenders—The intention of the Legislature was that the exemption under the Act should extend to cemeteries like the defenders'. The Act was passed to give effect to the practice of assessors in exempting such cemeteries and to encourage the formation of cemetery companies. The words of section 1 must be reasonably interpreted. “Appropriate” meant “to set apart for, assign to a particular purpose or use, to the exclusion of all other purposes or uses.” Whether the ground had been appropriated in the sense of the section must be evidenced by fact. Admission No. 12 concluded the case against the pursuer. The best evidence of appropriation was use, and there was in the present case user de facto. But appropriation was wider in its meaning than actual use—section 11 of Burial Grounds (Scotland) Act 1855 (18 and 19 Vict. cap. 68)—it included dedication—dedication to a particular purpose. Ground was dedicated to purposes of burial when it was fenced off for these purposes, and any person acquired a right which barred the owner of the ground from putting it to any other use. The Cemetery Company became so barred when the first lair-holder acquired his right to a lair— Cunningham and Others v. Edmiston and Others, June 23, 1871, 9 Macph. 869, per Lord Ordinary (Gifford), 8 S.L.R. 576; Paterson and Others v. Beattie and Others, March 4, 1845, 7 D. 561, per Lord Mackenzie at p. 569. It was necessary to distinguish between the purposes for which the company acquired the ground and carried on the cemetery, viz., to make profits, and the purposes to which the ground was put, viz., purposes of burial. The section of the Act dealt merely with the purposes to which the ground was put. If it was put exclusively to burial purposes then it was to be exempted. The defenders had been assessed on the whole ground as a unum quid, so that even if it were decided that the portion of it not yet actually occupied by lairs was liable to assessment, the action should be dismissed, since there were no means in the case of ascertaining what portion was exempt.

At advising—