Cunninghams v. Alexander Cunningham

This case concerns burial rights to the Currie Kirkyard. Alexander (John) Cunninghame, victual-dealer at Fountainbridge, was not a parishioner of the Currie Kirk. He was, however, a descendant of John Cunninghame of Balerno (d. 1640), who was buried in the Balerno family plot, which ran along the south wall of the parish church. By the end of 1777, Cunninghame had buried his wife and three children in this burial plot, near the wall of the church. When he had a tombstone made for their graves, William and Laurence Cunninghames, portioners of Ballerno, petitioned the Sheriff of Midlothian to forbid Alexander Cunninghame from placing this stone and from making any further burials. They claimed exclusive possession of this area of the kirkyard due to their status as joint-heritors in Currie parish. The sheriff found that the defender should not "be deprived of the pious satisfaction of placing a stone over the grave of his departed wife.” The pursuers then presented a bill of advocation to the Court. Lord Covington determined that as the defender was neither a heritor nor a parishioner of Currie, he had no right to make use of the kirkyard. When the defender petitioned the Court for review, it upheld Covington's decision. The arguments of the pursuers and defender centered on whether a kirkyard was common or private property.