Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 SEAT IN A CHURCH

Saint Clair of Saint Clair
v.
Miss Alexander

Date: 21 November 1776

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In deciding a cause between Colonel Saint Clair of Saint Clair and Miss Alexander, concerning a seat in the church of Laswade, the Lords agreed, Primo, That a seat in a church, a parochial church, was not to be considered as private property, in the proper sense of that word: the church was the place appointed for the heritors and inhabitants of the parish to meet for public worship; and no heritor could be excluded from a seat in it. The heritors had right to seats in it, by way of real servitude; and no person, except an heritor, and the inhabitants under him, had right to a seat there. A person, therefore, who was not an heritor, could have no proper right to a seat there, either by a voluntary or prescriptive title: it was a subject which could not prescribe. Secundo, They thought, in consequence of this, that no heritor could have an exclusive property to more of the area of a church for a seat, then effeired to his property in the parish; and that this property was to be estimated by the valued rent. And therefore, Tertio, That when a church was sought to be divided legally, the rule was, the valued rent; and, this division once made, behoved to continue, notwithstanding of the accidental increase of inhabitants, in one corner more than another; because, otherways, processes of division would be repeated daily, and be endless.

In this case between Colonel Saint Clair and Miss Alexander, the fact was, that the church of Laswade had never been divided legally.

The shape of the process was a declarator at Colonel Saint Clair's instance, against Miss Alexander, that he had the only good right to the whole of that area of the church of Laswade, fitted up as seats for the feuars, tenants, &c. of the barony of Roslin. In the proceedings in this process, both parties referred to a proof of the possession taken in another process.

It was not disputed that the barony of Roslin had its proper share of the area; but then Colonel Saint Clair contended, that Miss Alexander had more than her proper share of this share, to which she pretended an exclusive right. She again alleged a verbal grant of that share from Colonel Saint Clair's author, and exclusive possession for more than 40 years. The Lords seemed generally of opinion, That, where a church was not divided legally, possession was the rule, until a legal division should be made; but, in this case, they thought the possession rather promiscuous, and therefore they pronounced this interlocutor, 22d November 1776:—

“Find that the defender, Miss Alexander, qua proprietrix by progress, of those parts of the lands of Roslin, granted in feu by William Sinclair of Roslin, to the deceased Yaxby Davidson, is entitled to a rateable proportion of that space or area of the church of Laswade appropriated to or occupied by the possessors of the barony of Roslin, corresponding to the lands so acquired; and that the pursuer, Colonel Saint Clair, as now standing in the right of the said barony, is entitled to the residue of the said space or area appropriated to the whole barony: and find that Miss Alexander and her author's possession of that double pew in the church of Laswade, which occupies about two-thirds of the aforesaid space or area appropriated to the barony of Roslin, gives her no further right, either of property or possession, than to a rateable proportion of her lands with the rest of the said barony: but, in regard it does not appear that there has been any regular division of the church, and that, from the proof, it appears that the said area or space, in its former and present state, has been possessed in common by Miss Alexander and her authors, and their servants, and by the other feuars, tenants, and servants of the remaining parts of the said barony; find, that the same common possession must be continued till such time as either a legal division of the whole church shall be obtained, or a subdivision between the pursuer and the defender, of that space or area appropriated to the whole barony, conform to their respective rights and interests therein.”