Part II – The golf course – The Litigation
Researched and compiled by Graham Johnston
On or about the middle of February or it may have been March 1812, Robert Carstairs the tenant farmer of the Malcolm family who owned Grange estate in Earlsferry set out from Grange Farm down the road toward Earlsferry, no doubt with his trusted Clydesdale horses and his plough. What he did within the next few hours was to have repercussions for at least 30 years – events which were not eventually resolved until the 1850s at great personal expense and angst to the citizens of Earlsferry and considerable financial benefit to the lawyers. Indeed Earlsferry nearly became bankrupt as a result.
To understand the significance of what happened we have to go back a few centuries. Earlsferry was not like it is now but consisted simply of two rows of houses one on the north and on the south side of Earlsferry High Street which stopped at the end of the high street .
There was no building on the shore line and the houses on the north side of the High Street had gardens or more likely yards and middens which extended up a few yards and ended on an area of ground which was really just waste ground. However the citizens of Earlsferry used the area for a number of things. This is the first ordnance survey map of 1850 so it is reasonable to assume that prior to that date and certainly prior to 1812 there was somewhat less building on the north side.
This is what the area looked like in 1813.
The tenant of the grange ploughed roughly the area in the red box. In effect he cut off the links beside the village from the links beside west bay.
The contours and size of the golf course, the number of holes available to play, varied according to a number of factors. It changed not only with the seasons but also when the playing of golf competed with so many other things happening or expected to happen on this hallowed piece of ground stretching from Ferry Road to West Bay. Sometimes cattle and sheep were grazed on it and sometimes parts of it were ploughed up by the tenant farmer of the grange. When it was, the golf course simply changed direction until after the harvest or the residents of Earlsferry made a path through the corn or drove the ball over it. Not that the ground actually produced much crop.
The locals said that Golf had been played on the links at Earlsferry for many centuries and the links area which borders on the north side of Earlsferry along Links Road was common ground used for a variety of purposes over the years.
It was always considered that this ground was common to the residents of Earlsferry and as such they had a right of access over it for whatever purpose they chose or so they alleged. However it was golf that predominated on this area.
The proprietor of Grange Estate Sir Michael Malcolm in the 1810s obviously took exception to the playing of golf on what he considered was part of his estate farm and he instructed his tenant Carstairs, to prevent the good citizens of Earlsferry from playing golf there by ploughing up more land than had been done before.
Eventually in 1815, after no doubt considerable disruption to the games of golf Malcolm raised an action in the Cupar Sheriff court seeking interdict to prevent the citizens of Earlsferry from playing golf on his land.
The Magistrates of Earlsferry as representing the people of Earlsferry raised a counter action claiming that the citizens of Earlsferry had a right to play golf on their land and they owned it but lest they did not then they sought, a right which they claimed was enshrined in law as a servitude. A servitude is a right to do something over a piece of land you do not own which attaches to the occupation or ownership of an area of land which you do own. One would have thought that the possession of a title deed might have been definitive of this dispute but as no one seemed either to have a title deed or, if they had at one time it had been lost, the litigation was necessary.
There was eventually a hearing of evidence which lasted in all two years during which there were witnesses led by both sides. There was a procession of the good great, and maybe not so great, of Earlsferry including such luminaries as James Waddell the town clerk, James Forrester the golf professional and Admiral William Duddingston of Gaspee incident fame who had built Earlsferry House. All summoned to appear in Edinburgh to evince the fact that golf had been played on this bit of land for as long as they, no doubt their fathers and grandfathers too, could remember.
Malcolm contended that the evidence of these witnesses for the burgh was tainted because they lived at or near Earlsferry and might be supposed to have been biased in favour of being able to play golf on as large an area as possible so no doubt the first question in cross examination was “Do you play golf ?” to which the answer seemed to have been invariably “Yes” thereby disclosing a vested interest.
The contention of Earlsferry was that the burgh had a servitude right on an adjoining land of commonty called Ferry links of golfing, bleaching clothes, steeping lint, casting divots and perambulating over it. And that they had a right to a piece of land called Coalbaikie but it or part of it had been ploughed up by Carstairs, Malcolm’s tenant, and in addition he had been taking stone from the quarry there.
During the process a map was drawn up showing the then position
This is a copy of the original map showing a little wear and tear.
The citizens claimed that they had ownership of the area on the map called Coalbakie.. This was ascertained by drawing a line from the Coach Rock which sits out to sea and joining it up with the corner of what is now Chapel Green walk. In any event it seems that Carstairs egged on by his landlord Malcolm, claimed he tenanted the whole area which he had ploughed it up to the detriment of the golfers, bleachers, steepers, divoters and perambulators.
He further contended that there is no such servitude in law as the right to play golf. After evaluating the evidence The first judge found:
“that the Burgh of Earlsferry has, past all memory, enjoyed all the rights and privileges of a royal burgh….and that this burgh has enjoyed property past all memory and that in so far as the burgh has been in possession of the ground it is entitled to protection of its rights….[he rejected the evidence of most of the witnesses who were resident in the burgh but founded his opinion on independent witnesses]…. there was a lot of contradiction in the witnesses….……. There is strong evidence that part of the ground called Coalbaikie had been possessed by the inhabitants of the burgh for a great length of time and ….that although the inhabitants of this burgh and strangers visiting it had played golf on the eastern links and enjoyed other exercises and amusement upon these links, then not ploughed or enclosed yet that during all that period the proprietor and tenant of Grange exercised every right of property by ploughing them at different periods, and killing rabbits on them and that the whole of these links had been ploughed and in regular cultivation except some small hillocks. That there was also a golf course upon the links to the west which although diminished by part of the ground being enclosed and ploughed seems still by the plan to afford a sufficient space for golfing:- that the present course as marked upon the west links seems perfectly sufficient for affording the amusement of golfing such as the population of Earlsferry can require, without having any title to exercise that right except alongst the same or links, where aration (sic an old word meaning ploughing) cannot well take place ; but in order to prevent any dispute in time to come appoints Mr Wilson the surveyor who prepared the plan (vide supra) in process at the sight of the parties to put in march stones* ….. such as he conceives will be the least prejudicial to the estate of Grange and may sufficiently secure the exercise of golfing to the inhabitants of Earlsferry;” The court remitted to the Sheriff of Fife to draw up a plan showing the roads and golfing tract.
*These march stones still exist between 6th and 7th fairways and at the side of the 9th green.
Sensible way of proceeding one would have thought but it did not quite work out that way. The sheriff of fife attended with the parties and wandered around the ground and he first looked at the roads. He started with Ferry Road which recommended stayed as it was since it was a statute labour road. This meant that it was a road whose maintenance was entrusted to the road trustees of the area and which was maintained by labour (although by that time it had been commuted to money) from the various tenants around the village.
The second road he looked was a road which now does not exist. It ran sort of diagonally from the corner of Ferry road opposite the telephone box up to Grangehill and is noted as being the road from Leven to Earlsferry. He considered this should stay for the convenience of the village.
The next road he looked at was what is described as the road to Largo and is probably the road that crosses the golf course to the corner of Grange Road and thereafter up to Grangehill Farm since it is described as the road to Largo. He considered that that should remain and the fourth road he looked at was Cadgers Wynd which is an extension of our now Allan Place and goes across 4th fairway of the golf course. He considered this should be retained. And the last road he looked at seems to have been Seatangle road to West Bay which again he recommended remain as it was. I do not think there was much disagreement between the parties about that although perhaps Malcolm and his tenant would have preferred to be able to cultivate the whole area without having to allow pedestrians along for roads.
The Sheriff then went on to look at the area of ground necessary for a golf course. At that time there were holes marked out of sorts starting at Ferry road here called Germans Wynd ! going west. He laid out a line of golfing tract which effectively consisted of the present fourth fairway, from the fourth green north west at an angle roughly to the top of the hill at the ninth green and then 12th thirteenth and that was about it. The current 10th and 11th would remain because there was no dispute that this was on commonty land owned by the burghers of Earlsferry and Sir Robert did not make a claim to this.
The rest of the land of the current golf course he recommended be part of the estate of Grange although he makes a comment that Malcolm did not produce a title deed to that ground. Mind you neither did Earlsferry who relied upon the charter granted to it as royal burgh. In any event the strip of ground which the sheriff reported back to the court of session was bounded on the north by what looks line a line down the middle of the rough between 4th and 17th. Then a line from about the current front tee at the 5th to a marker which was down 6th fairway Thereafter the line went north westerly to the current 15th green and from there directly north to the fence of the field at Kincraig Point. And the land to the seaward side of that line and the ground to 10th green and 11th green would be part of the course.
Earlsferry and its golfers were not happy. Firstly they claimed that the corner of Coalbackie had always belonged to the Burgh as part of the commonty and superficially Carstairs had ploughed this bit up actually provoking the dispute.
So there was an appeal actually by both sides. Malcolm on the basis that the witnesses had been biased and that there was no such thing known to the law as a servitude right of golf.
We are very fortunate to have the original papers in the case which were laid before the appeal court.
The sheriff had reported but the burgh took objection on the basis that the track he had marked out was not sufficient to the enjoyment of golf. {it seems in some of the areas marked out the course were too narrow and not enough to hit a golf ball – this is probably where the legend arises that the amount of ground was determined by the normal hit of a golfball} The Court of Session then granted a new remit :
“to experienced golfers, or to the sheriff (who by implication was not an experienced or even a golfer ) along with experienced golfers and it remitted to Walter Cook W.S. and John Taylor attorney in Exchequer [they must have satisfied the test of being experienced golfers ! ] to examine the ground in question to lay out a proper golfing course thereon sufficient for the exercise of that amusement. “
Indeed our researches show that these gentlemen were indeed experienced golfers. Walter Cook W.S. was a stalwart member of the R and A and on 3rd October 1806 won the autumn meeting at St. Andrews with a gross 100 and John Taylor was a member of HCEG at Muirfield and he won one of their medals on 21st July 1814.
Their plan was a little different from the earlier one and eventually this was the one which the court accepted and gave authority to. From what we can ascertain it was broader than that drawn up by Wilson and the sheriff and included the corner ground at Coalbackie.
So we have the outline of the golf course in 1831 and of course that was the same date as the establishment of Earlsferry Abbey golfing society. We hazard a guess that this club formed in 1831 was so that they could make representations to Cook and Taylor about the golfing tract.
So it was established that the citizens of Earlsferry could golf on this area of ground set out to the court. 
This is the area coloured blue on above plan.
We believe that this was the kick start that golf needed in Earlsferry and even visitors from as far away as Elie could play golf on this area of ground for free. There was some restriction in that the golfers were not expected to interfere with the comings and goings of the farmer and the Grange estate.
The parties co-existed for a few years and there may have been some tension because there was a warning sent out by the Burgh to golfers that if they hit their ball into a field being cultivated they were not allowed to retrieve it lest they do damage to crops.
But the dispute did not end there because in 1878, Sir James Malcolm of Balbeadie and Grange, and David Fraser, farmer, Grange Farm, his tenant, sued the Committee of Management the Earlsferry and Elie Golf Club, and George Forrester, clubmaker, Earlsferry, green keeper to the Club, and also the Magistrates of Earlsferry, and James Waddell, Town-Clerk, and community of Earlsferry, for their interest, to have it declared that the golfers have no right to cut or carry away grass from any part of the golfing course of Earlsferry, part of the farm of Grange, and that they should be interdicted from so doing.
The pursuers also ask the Court to regulate the hours during which the privilege of playing golf over said golfing course shall be exercised, in such a manner as will enable the pursuer and his tenants of said farm to pasture their cattle and sheep on said golfing course, without injury or molestation to them – one assumes the animals rather than the golfers.
Malcolm averred that the defenders had recently, in the course of the present year, 1878, and particularly in the month of June, cut and carried away large quantities of grass from the said golfing course against the remonstrances of the pursuers, and to their serious loss, and they maintain a right to do so without permission of the pursuers.
In answer to the pursuers’ statements the defenders, the Committee of the Golf Club said that the decree founded on by the pursuers proceeded on the basis of a report prepared, under a remit of the Court, by Walter Cook, W.S., and John Taylor who examined the Links and laid off the golfing course which has since been in use. It is admitted that golfing has been practised on this course on the Links since 1832,[ Note this date as when Earlsferry Abbey golf club was incorporated.] that it has been practised on the Links from time immemorial, and that the exercise of the right was restricted and regulated by the decree, so far was deemed compatible with the due exercise and enjoyment of the right. It is explained, in particular, that Messrs Cook & Taylor, as their report bears, considerably narrowed the space over which golfing had been in use to be practised. It is admitted, also, that the defenders, the Club, have cut the grass upon certain parts of the course, and explained that the Club was instituted in 1858 [ this is the Earlsferry and Elie golf Club ], and has had from the first, among other officials, greenkeeper that was George Forrester the golf club maker , whose duty it is, and always has been, to keep the course order for play.
With that view he cuts and always has cut, the grass of the putting greens when necessary, and also the nettles and rank weeds and grass which grow in the hollows, of which there are several on the course. He also levels moleheaps, fills up rabbits holes, and the like. All this, it is said, is absolutely necessary to the due exercise of the game, and no more has at any time been done than is absolutely necessary. From the circumstance that in the present year the Links have not been grazed, the quantity of grass cut may have been larger than formerly, but the area cut is not larger than in former years. The course is about 1500 yards long, and from 50 to 100 yards wide. There are from nine to eleven holes in it.
Formerly there were double greens at each hole; now with one exception, they are all single. The first (which is a double green) 86 by 110 feet; the second 91 feet in diameter; the third (where there is a double hole) is 96 feet; and all the others about 66 feet in diameter. The holes are occasionally changed, but always within the same grounds. These greens are cut with a mowing machine, and the vegetation in the hollows with a scythe.
The defenders claim no right to carry away the grass cut by them, and they have never done so. It has always been left on the ground, and might have been carried away by the pursuer, Fraser, if he had so chosen. If others have taken it away, that has not been with the authority of the defenders.
For eight months in the year (October to May inclusive) there is very little golfing ; and, during the remaining four months, the farmer and landlord have the course to themselves on Sundays, and during the night and early morning of each day, and also during unfavourable weather when there is no play. Last summer the bestial were put out from 5 to 10 every morning, when they were removed to an adjoining park. The Links being unenclosed, herds have any case to be kept {in}. There is, the defenders maintain, no necessity for further regulation, and no room for such regulation, without abridging their rights, as defined by the decree of the Court founded on. In particular, the hours of play cannot be restricted without entirely interfering with their rights, and depriving players of all opportunity of playing.”
This case did not come to anything the parties having settled it and it is in our view not insignificant that an extra strip of land was leased in 1886 the new Golf House Club leased an area of ground from the Grange estate which broadly included part of the ground which had been in the farm. We will deal with these extra areas in another part. Of course by that time Elie Golf House club was also playing on the small stretch of ground lying between effectively the quarry and the back of the houses of Williamsburgh and Liberty and eventually in 1971 the whole thing was consolidated into the golf course as we know it. So what happened to the right of the Burghers of Earlsferry to pay golf on that golfing tract ?
The most fascinating is that a burgher of Earlsferry (by that we mean an owner of property) had the right to play golf on the Earlsferry links. Or at least on the part decided in this court action which does not include the land to north of the 15th Green or the land alongside Grange road. Of course at that time the Melon Park was not part of the golf course and anyway that was in Elie. It became part later.
The rest is history and will be dealt with in Part 3 .