Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 KIRK-YARD.
Subject_3 Additional burying-ground necessary for a parish, partly landward and partly composed of the inhabitants of a populous burgh of barony, must be furnished by the heritors having ground proper for that purpose, and they are to be indemnified by the other heritors and by the community, in proportion to the examinable persons within the parish.

Magistrates of Greenock
v.
John Shaw Stewart

Date: 4 July 1777

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[Fac. Col. VII. 450; Dict., App. 1, Kirk-Yard, No. 1.]

Hailes. This question could never occur in our ancient law; for, as the Popish clergy reaped great emoluments from burying the dead, they were always ready to furnish burial-ground. There is no doubt that the church-yard belongs to the heritors, subject to the single burden of interring the dead. The grass of it is theirs, and the trees planted in the church-yard are theirs. They have connived at the kirk-session drawing the emoluments arising from what is called layers, because this is applied by the kirk-session for the use of the poor, for whose maintenance the heritors are ultimately liable. I think that the heritors must furnish the ground for an additional church-yard, and that the ground so furnished will continue theirs, and that they will have all the profits arising from it. The only question in effect, is, Who shall advance the money?—for, it will, in course of time, be replaced by the wonted emoluments. I doubt as to making the town or inhabitants advance the money; for here there is only a burgh of barony without funds, and without the power of assessment. But I am clearly of opinion that the heritors must fix the place, and that it would be most unreasonable to allow the town or the inhabitants to choose any spot which might suit their caprice.

Braxfield. Here we are in a new question, and we must determine it as we best can by analogy, and according to rules of equity. In building of churches, the general rule of law is, that the expense shall be borne by the heritors according to their valued rent. This, in most cases, is an equitable rule, but cases may occur when it will not be so. Thus, when there happens to be a burgh and a landward parish, the burgh may chance to contain two-thirds of the inhabitants of the parish, and yet may not have above one-tenth of the valuation. The rule then is to inquire what proportion of the church will accommodate the burgh, and what the landward parish, and then to proportion the expense accordingly. To apply this to the case of church-yards, the ground must be furnished by the heritors, for no one else can furnish it. But who is to be at the expense? In common cases the heritors are, because they and their tenants and dependants have the whole use of the church-yard. But when there is a town, the town for the same reason must pay its proportion. As to administration, that is generally left with the kirk-session, because the profit goes to the poor, and the heritors are so far relieved. But in this particular case I think that the ground should be vested in the burgh.

Covington. It is impossible that the statutory rules can take place here. Where there is a burgh, the real rent of the burgh, and of the landward parish, ought to be the rule in proportioning the expense.

President. A general rule must be assumed here. There was a church-yard sufficient for the parish till the town became enlarged. My doubt is whether the heritors should be burdened at all? It is impossible that the heritors should be solely burdened. The community ought to be burdened according to the probable use that will be made of the church-yard. I see no inconveniency in having the church-yard at a distance, but much in having it near the church. Why take ground of great value when you may have ground of less value? I do not see why money should be paid for layers? Burying ought to be free, and I did not know that there was any such exaction in Scotland.

Gardenston. I am surprised that this should be a question. I have a little village of my own, and if the number of inhabitants should increase to my benefit, I would not grudge them a church-yard. The common rules cannot apply to this case, where there is a burgh. It is unreasonable however that the community, who have not the whole use, should pay for the whole; and the price demanded is exorbitant. The situation of the ground must be such as is most convenient for the heritors.

Justice-Clerk. Here is a great town, exceedingly populous; there are many persons in it who have no property in it: it might seem reasonable to take them all in computo.

Kaimes. If we go into such minutiæ, matters will become inextricable.

On the 4th July 1777. “The Lords found that the additional burying-ground, necessary for the parish, must be furnished by the heritors thereof having ground proper for the purpose; but found that the heritors who furnish the same must be indemnified by the other heritors, and by the community of the Town of Greenock, in proportion to the examinable persons within the parish, residing upon their estates, and within the community respectively;” varying the interlocutor of Lord Auchinleck.

Act. Ch. Brown. Alt. J. M'Laurin.