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should have been actually reaped or taken from the property during the Fifthly, What period for which the rate is made; but the property is at all times rateable property is rateaccording to the improvement in its value, or in the rent which might fairly able. be expected from it. The property of these underwoods is at all times liable to be rated whenever rates are made. Rate confirmed.
8. Underwoods. Rex v. Inh.of Ferrybridge, 2 D. $Ryl.634 ; 1 B. 4. C. 375. Upon an appeal Firs and larch of R. R. Milnes, Esq., against a rate made for the relief of the poor of the planted with oaks township of Ferrybridge, in the W. R. of Yorkshire, the sessions ordered the sheltering the latrate to be amended by striking out a portion of the rate assessed upon the ter, and cut from appellant, amounting to 161. 16s. 10d. in respect of his woods and plan- the oaks grew
as tations, subject to the opinion of the Court of K. B. on the following case. larger and requirThe appellant is the occupier of 650 acres of land in Ferrybridge. It ed more space, appeared in evidence, that in the years 1785 and 1786, 340 acres of the
cut, not growing said land were planted with oak and ash closely intermixed with Scotch again, and some firs and larches. At different periods, portions of the firs and larches were
of them yielding
a profit by sale, cut down for the purpose of thinning the plantations, and some of these are not saleable thinnings were sold under the name of fir and larch poles, but the greater underwoods withpart were used in the erection of buildings. Considerable thinnings of the the primary ob? firs and larches have been made within the last four years, and produced a ject of planting profit ; many of them were of the height of from 30 to 40 feet, and them being to contain from 10 to 12 cubic feet of wood, and were 30 years old. This and not to derive wood is cut without reference to size, in order to allow room for the ashes a profit from
them per se by and oaks to spread. The purpose of introducing firs and larches into those plantations, being to keep the same thick and sheltered, and to make a Semble. That profit by cutting the firs and larches from time to time, when the oaks and they are not un. ashes by reason of their growth require more space. Fifteen years ago, 18 cerwood at all. other acres of the said land were planted in a like manner; and five years ago, 17 other acres of the said land were also planted in a like manner, The 18 acres have been thinned by cutting out a portion of the firs and larches, but no profit was derived by such thinning. The 17 acres have not yet been thinned. The roots or boles of the firs and larches which are cut, die in the ground and produce no shoots. The whole of the land so planted hath been always rated to the relief of the poor. After argument, per Bayley, J. The stat. 43 Eliz. does not throw the charge of maintaining the poor on the occupiers of every species of property, but only on the occupiers of property of certain particular descriptions there specified, and amongst others it speaks of the occupiers of saleable underwoods. The legislature does not use the word “ Underwoods” per se, but“ Saleable Underwoods:" and they have not in this or in any former statute affixed any definite meaning to the term “ Underwood.” If they had done so, we should feel ourselves bound to adopt that as the meaning of the word in construing the present act. It has been said that all wood comes within the description either of timber or underwood, and, therefore, that as firs and larches are not timber, they must be considered as underwcod. It is not necessary to decide whether this be correct, because by the statute of Eliz. saleable underwoods only are subject to be rated to the relief of the poor. It may, however, be observed, that if all wood which is not timber, be underwood, it would follow, that horse-chesnuts, limes, plane-trees, and aspens would come within that description. Yet, surely, it would be a perversion of language to call such trees underwood. Generally speaking, that term is applied to a species of wood which grows expeditiously and sends up many shoots from one stool, the root remaining perfect from which the shoots are cut, and producing new shoots, and so yielding a succession of profits. It is probable that this is the description of coppice and underwood to which the statute of Eliz. applies. But it is not necessary to decide that, inasmuch as that statute also requires that it should be saleable underwood, and the word saleable in Rex v. Inh. of Mirfield has been held to denote such as is intended or destined for sale, in contradistinction to such as is to supply the land with estovers for fuel and other purposes of the estate. It does not, therefore, come within the description of saleable underwood, unless the prospect of deriving a profit by sale was the main object of the proprietor when the plantation was made. There are some species
Fifthly, W hat of wood, such as hazel, which are valuable only as underwood, and which property is rate- must have been planted originally for the purpose of acquiring profit by able. sale. But of all plantations, fir is perhaps the least valuable, being chiefly,
I believe, intended for protection rather than profit. It is found as a fact
no means follows; for by the 45 Edw. III. c. 3, gros bois of the age of Fifthly, H'hat 20 years, in respect of which the clergy had claimed tithe, under the name property is rate. syłra cuedua, is expressly exempted froin tithe. Now, gros bois means tim- able, ber; and, by the common law, includes oak, ash, and elm; and, by the custom of the country, in particular places, many other species of trees.
8. Underwoods. Every species of wood which is not timber by the common law or by custom, is titheable. By the statute of Eliz. no species of wood, but saleable underwood, is liable to be rated to the relief of the poor. It has been said, that sylra cædua and underwood are synonymous. In Ford v. Rackster, 4 M. $ S. 137, however, Lord Ellenborough, delivering the judgment of the court, says, “ Sylva cædua and subbois, or underwood, are not, it should seem, from 45 Edw. III., synonymous; for subbois is stated to be comprehended in it, not to be it itself, or to be the same thing with it. Sylva cedua seems to comprehend, ri termini, besides underwood, all such wood as is occasionally cut, either in body, branch, or root, with the statutable exception only of gros bois, properly so called, when it is of that age at which it is, by the 45 Edw. III., exempt from being tithed, i. e., of 20 years or npwards." Underwood, therefore, is one species of sylra cadua, and, possibly, the firs and larches may be sylva cædua, though not underwood. It is, however, unnecessary to decide in this case, whether these firs be underwood or not. It is sufficient to say, that they are not saleable underwoods, and, therefore, that they are not rateable to the relief of the poor. Order of sessions confirmed.
9. Commons, Way-leaves, Rights of pasture. That commons, which afford a beneficial occupation, are rateable, seems 9. Commons, scarcely to have been disputed ; the only difficulty has been to determine rights of pasture, upon whom the rate ought to be imposed. The following cases shew that the party to be rated must not only be the beneficial occupier, but he must have such a possession as will enable him to maintain an action of trespass, which a mere commoner cannot sustain. See, in particular, Rex v. 1'rent
Mersey Navigation, 6 D. F R. 47; 4 B. & C. 57. In most cases, therefore, where the common belongs to a coporate body, the corporation, and not the members individually, must be rated. A mere right of common is not rateable, nor is a right of way, if not accompanied with exclusive occupation, or any other easement, upon the same principle. See 9 B. f. C. 827.
Rex v. Watson, 5 East, 480; 1 Bott, 237; 1 Nol. P. L. 172. In this Members of a case W'. appealed against a rate, because E. H. and others were not rated corporate body, for certain common lands upon which they had commonable rights, which fec certain com. rights they enjoyed and used. The justices confirmed the rate. The case mon lands, exer. stated that the mayor, &c., of Huntingdon were the owners in fee of these cising their right lands, which were used as a common of pasture, and stocked by such such lands, are resident burgesses as thought proper to stock, under certain restrictions. rateable. That some of the resident burgesses stocked fully, that others did not, and some not at all. That in the latter case, an annual payment was made by those who did stock to those who did not; and that E. H. &c., were resident burgesses and did stock. In the course of the argument it was observed by Lawrence, J., that the word occupation, properly speaking, implies possession. By Lord Ellenborough, C. J. This is not an incorporeal hereditament. The corporation are the owners, in fee, of the land, and they dole it out annually, according to the custom, to certain of the burgesses, such of them as take it paying a certain sụm to those who do not turn on any stock. Then when the number of those who stock is ascertained, what is there to distinguish them from other tenants in common, each of whom might maintain trespass for an injury done to his occupation in common? It has Quere, Whether a been decided that a common in gross is a tenement, and it should seem from common in gross thence that it is rateable. But I consider this not as an incorporeal hereditament, but as a corporeal tenement, of which the several burgesses who stock are tenants in common. And we cannot say that an enjoyment of land, which is of such value as that those who do not actually enjoy it, but who might if they so pleased, are entitled to a compensation from those who do, is not
Fifthly, What something which is rateable; and being rateable, it must be rated in the property is rate- hands of those who have the beneficial possession. able.
Rex v. the Trustees for the Burgesses, g-c., of Tewkesbury, 13 East, 155 ;
Bott, Cont. 86; 1 Nol. P. L. 173. Upon appeal against the poor's rates 9. Commons, &c. after mentioned, tried at the borough sessions of Tewkesbury, between the Aftermath let out trustees appointed by an act of the 48 Geo. III. for the burgesses or freemen
and principal householders of the borough, appellants; and the churchwardens and overseers of the parish of Tewkesbury, respondents: the sessions were of opinion, that the trustees themselves must be considered as the occupiers, and liable to such rates, and stated the following
case. The first of the rates appealed against, was made on the 13th of October, 1809, as follows
Trustees of the Aftermath of the £ 16 10 0
by tuning in their cattle from the 12th of August, 1809, to the 13th of
Fifthly, WhatFebruary, 1810, and the trustees did not occupy it, unless such letting and property is rateenjoyment in pursuance thereof amount in law to an occupation by them. able. No alteration has been made since the passing of the act in the proportion of the poor rates of the parish assessed on the occupiers of the said houses 9. Commons, &c. there, who were previously entitled to such right of common on the Serern Ham, nor has any deduction been made from the assessments in consequence of the alterations introduced by the act. The question was, Whether the trustees were liable to be rated in respect of the after or lattermath ? If they were, the rates and order of sessions were to be confirmed; if not, the rates were to be amended accordingly. After argument, in which Rex v. Watson, 5 East, 480, was cited as an authority to shew that the persons who took the lettings for their cattle, and not the trustees, were the proper parties to be rated; Lord Ellenborough, C. J., said, there the corporation could not take in the cattle of a stranger, but here the trustees may contract with any persons to take in their cattle by the year, or by the month, or week; and here not being able to let it altogether, they took in the cattle of different persons at so much a head. Who then can be said to be the occupiers, if they are not in this case? The letting is at so much a head, without any definitive time, or for any definitive portion of the aftermath, nor were the trustees bound to limit the number of cattle, though they might have done so.-Grose, J., agreed.-Le Blanc, J. The persons whose cattle were taken in had no definitive portion of the aftermath let to them.--Bayley, J. In the Huntingdon case the portions of those who had a right to stock were ascertained, but here there was nothing to limit the trustees from taking in others, Order of sessions confirmed.
Rer v. The Mayor, Aldermen, and Burgesses of Sudbury, 1 B. &. C. 389; Where a corpora2 D.G. R. 651, S. C.; 1 Nol. P.L. 173, 174. Upon an appeal by the mayor,
tion, consisting of
a mayor, alder. aldermen,and capital burgesses of the borough of Sudbury, against the poor rate men, and twentyof Ballingdon in Essex, on the ground that they were rated for property which four capital hur they did not occupy, the sessions confirmed the rate, subject to the opinion in fee of certain of the Court of K. B. on the following case :-Richard De Clare, about the pasture lands, Year 1250, granted certain pasture land, called Portman's Croft, in the and appointed a hamlet of Ballingdon, to “his burgesses and whole commonalty of Sud- keys of the gates, bury;" and Charles the Second, by his charter, under which the corporation clean the ditches, now exists, confirmed the said grant to the mayor, aldermen, and burgesses. Preserve the
im This land is inclosed, and the corporation, consisting of a mayor, six alder- pound cattle tres. men, and twenty-four capital burgesses, appoint and have always, within passing thereon ; the time of living memory, appointed, a person who is called the ranger of held annually. the commons, to keep the keys of the gates, clean the ditches, preserve the made such regu. fences, impound cattle trespassing, and do other acts of a similar descrip- ing their pas: tion. They have, during all that time, at a court called a Court of tures, and the Orders and Decrees, annually made such regulations concerning their number of cattle commons, as they thought proper, and given a public notice of them by the to turn on, and common crier; and for the year when the rate in question was imposed, the the sum to be paid order declared, that every burgess who had a right to turn on his cattle to in respect thereof, feed on the commons, should put two head of cattle, and no more, on Port- after deducting man's croft. It then proceeded to appoint the day when the cattle should the expences of be turned on, and to fix the price of each head of cattle, which price is the land, was disalways paid by the freemen exercising this right (who amount to more than tributed among 100) to the treasurer of the corportion. The mayor, aldermen, and capital the burgesses burgesses (being resident) enjoy the same right upon the same terms, and some on : Held, that of them exercised it during the year for which the rate was made. The cattle the corporation are branded by the ranger when turned on. The whole of the money thus paid rated to the poor, to the treasurer, after deducting the expences incident to the management as the beneficial of the land, is distributed among the poorer burgesses, who have, but do occupiers of these not, on account of their poverty, exercise, a right of depasturing cattle. pastures. The mayor, aldermen, and capital burgesses were rated, in their corporate capacity, as the occupiers of Portman's croft; and the questions for the opinion of this court were, whether there was any rateable occupation of Portman's croft; and if there were, whether the corporation or individuals who depastured their cattle upon it, were liable to be rated ? In support