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Fifthly, What of the order of sessions, Rex v. the Trustees for the Burgesses of Tewkesbury, property is rate. 13 East, 155, was cited. Contra, Rex v. Watson, 5 East, 480.–Bayley, J. I able. am of opinion that the corporation were the beneficial occupiers of the land in

question, and, consequently, that the order of sessions must be confirmed. 9. Commons, &c. We have been pressed strongly in the course of the argument, with the case

of Rex v. Watson, 5 East, 480, but that case differs from the present in two important particulars. There the individuals who turned on had the exclusive enjoyment of the land, for the purpose of turning on their cattle. No payment was made by them to the corporation, but to those resident burgesses who had the right to stock and did not exercise it. Here it is clear, from the facts stated in the case, that the corporation retained the exclusive right to the possession of the land. They appointed a ranger, he was their servant, and paid out of their funds ; his duty was to keep the keys of the gates, clean the ditches, repair the fences, and impound cattle: all these acts are usually done by the occupiers of land. The commoners could not insist upon having the keys from him. If the occupation, however, was in them, they would be entitled to have the controul of the gates, and they would be bound to do the several acts in respect of their occupation, which the corporation did by their servant. The corporation received the agistment-money paid in respect of the cattle turned on the land; they therefore occupied the land as agisters of cattle. The present case appears to me to fall within the principle of the decision in Rex v. the Trustees for the Burgesses of Tewkesbury, 13 East, 155. The only difference is, that there the common was fed by the cattle of strangers, and here, by the cattle of the members of the corporation. If, however, the exclusive occupation of the land is in the corporation, the principle upon which that case was decided is applicable to the present. There, an act of parliament had vested the aftermath of a certain meadow in trustees, in trust for the burgesses and principal householders of Tewkesbury, with power to let the same annually for the best rent, and also to let it in pastures for cattle, &c., to different persons, at such rates and subject to such regulations as the trustees should appoint, or by writing under their hands and seals, to demise the same for a term of years; the rents and profits, after payment of all charges, to be divided by the trustees amongst the objects of the trust. The trustees having let out the aftermath in pastures, at so much per head, for horses, cattle, and sheep, were held

to be the occupiers of the land, and, consequently, rateable for the same. The trustees were there considered as taking in cattle to agist, and particular stress was laid by the court upon the circumstance, that there was no letting of any definite portion of the aftermath. Now, in this case, no definite portion of the land is let to any one individual. The corporation do nothing more than take in cattle to agist; they do not even know, in the first instance, how many cattle will come in. For these reasons, it seems to me that this case falls within the principle of the decision in Rex v. the Trustees for the Burgesses of Tewkesbury, and is distinguishable from Rex v. Watson. If it were necessary to overrule either case, I should adhere to the decision pronounced in the former case, which seems to me to furnish a more reasonable rule of construction than Rex v. Watson.-Holroyd, J. This case differs from Rex. v. Watson, in several particulars. In that case it did not appear that the corporation did any acts upon the land. The temporary ownership seems to have been given up to the three persons mentioned in the case. Here the right of soil is in the corporation ; they have the management of the land by the ranger, their servant, who keeps the keys of the gates, and cleans the ditches; at the court mentioned in the case, they annually make regulations with respect to the mode of enjoyment of the commons by the burgesses. The money paid in respect of the cattle turned on, is received by the corporation, though it be afterwards distributed among the poorer burgesses. Many of these acts done by them could only be done in respect of their being in possession of the land. That is perfectly consistent with the exercise of subordinate rights by the burgesses. In respect of any injury done to the land itself, trespass would lie by the corporation, but in respect of any injury done to the right of common, the burgesses could only maintain an action on the case. In

Rer r. Watson, the part of the common situated in the parish of St. Mary Fifthly, What seems to have been in the exclusive occupation of the three persons men- property is ratetioned in the case. The objection to the rate was, that those persons were

able. not rated for certain lands in the parish of St. Mary, over which they had

9. Commons, &c. commonable rights, which said land, in the notice of appeal, was stated to be in the respective occupation of the said three persons. The case stated that the mayor, aldermen, &c., of Huntingdon, were the owners and proprietors of large tracts of land within the borough, used as a common of pasture, and stocked by the burgesses, part of which lands, viz., those mentioned in the notice of appeal, was in the parish of St. Mary. Now, that part in the parish of St. Mary was stated in the notice of appeal to be in the occupation of three persons named in the case. Those persons appear, therefore, to have had the exclusive occupation of those lands at the time when the rate was made. During that time the corporation could not do any act upon the land ; they could not maintain trespass for any injury done to the land. Here the possession is in the corporation, although there be a subordinate right in others. There was no letting of any definite part of the common to the burgesses, there was no rent reserved, but merely something paid for the agisting of the cattle. For these reasons I am of opinion that this case differs from that of Rex v. Watson, and that the order of sessions must be affirmed.-Best, J. I think Rex v. the Trustees for the Burgesses of Tewkesbury furnishes a more just principle of construction than Rex i. Watson, and I should be disposed to overrule the latter case, if it were necessary to do so in the present instance. If A. occupies for the benefit of B., C., and D., A is to be rated. Here, the corporation are the owners as well as the actual occupiers of the common, although they occupy for the benefit of individual corporators, viz. first, for the benefit of the burgesses who put in their cattle; and secondly, for the benefit of the poorer sort, among whom the money received" is afterwards to be distributed. The burgesses are nothing like tenants in common; they have no interest whatever in the soil; it is clear that the corporation retained possession by their officer; he could not otherwise impound cattle damage feasant, that being an injury done to the occupier of the land. The corporation are even to decide how many cattle each burgess is to tum on. This shews clearly, the right of occupation to be in the corporation, although the right of tuming on be in different members. It seems to me that this is not distinguishable from the case of persons taking in cattle to agist. The corporation must be considered as the owners, for it is impossible to rate any other person ; for before the orders of the Court are issued, the individuals who are likely to have any interest are unknown. Order of sessions affirmed.

Rex v. Churchill and Booth, 4 B. & C. 750; 6 D. $ R. 635. The bur- A right of comgesses of Nottingham and the occupiers of ancient messuages there, have, as mon for a portion such, the right to turn cattle into certain fields, from Old Lammas Day to ing which period Old Martinmas Day in every year, during which period neither the owner of the commoners the freehold nor the tenants have, as such, any right to turn cattle therein.

owner of the free. It was objected to the rate that the persons exercising this common right hold and his teought to have been included in the rate. The sessions decided against nant from the this objection. After argument, Bayley, J. In order to prove a person the right is exer liable to be rated, it is necessary to shew that he is an inhabitant, or an cised, is not rateoccupier of lands, houses, &c. The question here is, whether the persons

able. whose names are alleged to have been improperly omitted out of the rate, were individually occupiers of land. The word common is well known to the law, and Lord Coke says, there are four kinds of common of pasture; common appendant, which is appendant to arable land; common appurtenant, for which one must prescribe (in a que estate); common per cause de rieinage, which is but an excuse for trespass; and common in gross, which is so called, for that it appertaineth to no land, and must be by writing or prescription. Land lies in livery, but a right of common in grant. Does that for which it is attempted to rate the burgesses of Nottingham lie in grant or in livery? Each has a right to turn three cattle upon certain fields during a certain portion of the year. It is claimed by them as burgesses, VOL. IV.

G

Fifthly, Ilhat and as occupiers of ancient houses. Could they be enfeoffed of such a property is rate- privilege? If not, it is plain they have no right to the soil, but merely an able. incorporeal hereditament, a right of common by prescription which is not

rateable. The order of sessions was therefore right.-Holroyd, J. It appears to 9. Commons, &c.

me that the right is vested in the corporation, for the benefit of its members. Supposing that there was a possession in law of those fields, so that trespass might have been maintained either by the corporation or the burgesses, I think it must have been by the corporation. But this appears to me a mere incorporeal right, and not within any of the words in the statute 43 Eliz. c. 2. Land to which a right of common is attached, may on that account be rated at a higher value, but the right of common is not rateable per se.—Little dale, J. The burgesses had a mere right of common, and according to the decided cases that is not the subject of rating. It is said that the exclusive pasture gave them the exclusive interest. I think it had not that effect, and that they could not maintain trespass as persons having the primam vesturam. The right enjoyed by these burgesses could only be claimed by prescription in the name of the corporation. According to Com. Dig. Pri scription (H) there may be a prescription for sole and several pasture, so as to exclude the owner of the soil, as appears also by Hoskins v. Robins, 2 Saund. 324, and under such circumstances the persons enjoying the right may grant it to others. But in this case no such grant to others could be made by the burgesses; the exclusive right was in the corporation, and they had it but for a limited time, and could only take it by grant or prescription. The burgesses could not take it by either of those modes, which shews that. they had a mere privilege of turning on cattle, in respect of which they

were not rateable. The order of sessions must therefore be confirmed. Way leave (being In Rex v. Jolliffe, 2 T. R. 90; 1 Bott, 181; 1 Nol. P. L. 86, it was a bare casement) decided, that a person who had leased to him a right of way (i.e. a way. not rateable.

leave) over the land of another, paying for it so much per ton for the goods carried over it, was not rateable as an occupier, such way-leave being a bare right of passage, which is an easement and not a grant of the profits of the land, and an easement is not rateable; the land having been before rated

in the hands of the occupier of that land. Waggon way, In Rex v. Bell and others, 7 T. R. 598; 1 Bott, 218; 1 Nol. P. L. 81, occupation of the 86, 128, 133. The Dean and Chapter of Durham granted certain leases ground, held rate of lands for twenty-one years, reserving to themselves the right of granting

waggon-ways over the demised premises, paying damages for the spoil of ground. The appellants leased of the Dean, &c., certain waggon-ways over these premises, making satisfaction to the original lessee for spoil of ground; they constructed these ways as most convenient to themselves, and prevented all persons, excepting such as were authorised by themselves, from using or going upon these ways. They paid 2001. rent for them, and were rated for them. The lands also through which these ways passed were rated after the construction of them the same as before ; and the appellants were held by the Court to be rateable for these waggon-ways; and Grose, J. said, it was clear that the appellants had the exclusive occupation of this ground.

Rate confirmed. Where a farmer Rex v. Broum, 8 East, 528; Bott, Cont. 59; 1 Nol. P.L. 205. The occucows, he may be piers of several farms, who are rated to the poor for their respective farms, rated for the pro- let their cows to an under-tenant called a dairy-man, at a certain rent per cow; fits, as part of the which cows, by the agreement, were exclusively depastured on different profits of the farem, grounds belonging to the occupier of the farm, at different times of the year; rated in the hands he being obliged to feed and maintain them without any expence to the dairy of the dairyman, provided the

man ; the dairy-man made a profit of the milk and produce of such cows, farmer be not independently of the profit made by the tenant of the farm. The appeal was, rated for the pro- because these dairies were not rated, and the court of sessions thought such fithe derives from dairies not rateable. It was held' by Ld. Ellenborough, C. J., that preletting them to hire.

suming the farmer to have been rated to the full profits of the farm, it mattered not to the appellant whether the rate were distributed to the farmer and the dairy-man, or laid solely on the farmer. That certainly the dairyman had an interest which would have given him a settlement, and he might have been rated separately from the farmer. That if a farmer bar

with exclusive

able.

gained with another to let him have a field of grass to cut, or the aftermath Fifthly, What of his meadows, such other might be rated whilst those subordinate interests property is rateexisted. But if one general rate were made upon the whole, including these

able. particular profits and interests, it would be no injury to the appellant. So also where the owner of a house and garden let the profits of his garden.

9. Commons, &c. The principle is, that what has once paid shall not be made to pay again. And this agrees with the case of Lord Bute v. Grindall (1 1. R. 338.) And he said it would be a different case if a farmer derived profit from stock kept on his farm, but not connected with the management of it, as if he kept stock which he fed with oil cake for sale, there he would be rateable separately for that stock, not as stock of his farm, but as stock generally, from which he derived a distinct and separate profit. The present are properly the stock of the farm.—The other judges agreed. Rate confirmed.

The mere fact of a party being found in the profitable occupation of land, is not sufficient to render him liable to the rate in respect of such land. This will appear by

Rer v. Trent and Mersey Narigation Company, 4 B. & C. 57; 6 D. & R. 47, in which case the proprietors of certain limestone quarries agreed to deliver to a canal company, yearly, such quantities of good limestone as the latter should direct, at the rate of 7d. per ton, and if they should at any time neglect to deliver the quantities required, it should be lawful for the company to enter upon the lands, or limestone quarries, of any of the proprietors, and to take such quantities of limestone as they should think proper, paying 2d. per ton. The proprietors having failed to make the supply, the company entered, and worked the quarries for more than twenty years, according to the contract, and they were, therefore, rated as occupiers; and the sessions confirmed the rate on appeal.- Abbott, C. J., having adverted to the fact, that no one besides the company had got stone from the quarries, since they first entered to work them for themselves, proceeded ;-". But the right of the company was merely to get there what stone they might think fit : there was nothing in the contract to prevent the owner from giving to others also the privilege of getting stone in the same quarry. The company, therefore, had not the sole and exclusive occupation, but a mere privilege, and consequently, were not liable to be rated to the relief of the poor.” Order of sessions quashed.

10. Extra Profits from Land. The words of the 43 Eliz.c. 2, s, 1, are “by taxation of every inhabitant, 10. Extra profits

from land, &c., and of every occupier of lands, fc., in such competent sum and sums of money as they shall think fit or convenient.”

There are other cases besides those enumerated under the preceding nine heads, in which lands, houses, and other tenements become of greater annual value, in consequence of particular circumstances attached to them ; and it is determined thai in such cases the assessment must be made upon the aggregate ralue, including the amount of these additional profits. (a) Rer v. Miller, 2 Coup. 619; 1 Bott, 155; I Nol. P. L. 77. Certain The profits of a

mineral spring lands with buildings thereon, and a certain well of mineral water thereout

are part of the arising, called the Cheltenham Spa, were demised to W. M., at a yearly produce of the rent of 1001. The lands and buildings, independent of the well, were of land, and there. the annual value of 201. And he was rated to the poor as for an entire is rateable for estate of 100l. a year.—By Lord Mansfield, C. J. Nothing can be plainer the whole as one

estate. than the present case. This is not a rate upon the profits of the well, but upon four acres of land, let to the defendant at 1001. a-year; and the value arises partly from the buildings, and partly from the spring that produces the mineral water. Therefore, the profits of the spring are part of the produce of the land. In Worcestershire and Cheshire, where there are salt springs, the rent of the land is increased considerably on that account. So here, the consideration of the well increases the rent. It is part of the produce of the land; and therefore, as such, ought to be rated.

(a) If any of these are let, the rent, in the absence of fraud, is the criterion of

annual value. 9 B. & C. 68, 162, 810.

from land.

£ s.

value of which

the land and

Fifthly, What Rex v. The Governor and Company of the New Rirer, 1 M. & S. 503 ; property is rate. Bott, Cont. 96; 1 Nol. P. L. 77. In a rate for the liberty of Little Amable.

well, in the county of Hertford, the governor and company of the New River 10. Extra profits

were rated as follows:-
Rental, 3001.—Governor and Company of the New

d.
Land, the annual
River, for land in Chadwell Mead

15 0 0 is improved by

The governor and company of the New River were incorporated by charter, a spring of water, liable to be rated' dated June 21, 1619, for the purpose of conveying water from a certain at the aggregate spring, rising in Chadwell-Mead, in the liberty of Little Amwell, to the

cities of London and Westminster; and do supply a great part of the same spring together. with water, by means of a cut called the New River, leading from the spring,

to a head or reservoir at Islington, whence it is distributed by means of en-
gines and pipes to the different parts of the metropolis, and from which the
company receive considerable profit beyond the sum at which the property
in question is rated. The water of the New River is derived from two
sources, part from the river Lea, from which there is a cut communicating
with the New River, near Chadwell-Mead, and part from a spring arising
and inclosed in a basin in Chadwell- Mead, which is the subject of the pre-
sent rate, and is the freehold of the New River company, and in their occu-
pation. The quantity of water derived from each of these sources is nearly
equal. That part of Chadwell-Mead which is occupied by the company, and
is the subject of the rate, contains about two acres : it consists solely of the
basin in which the spring rises, and so much of the cut from thence called
the New River, as lies in the liberty of Little Amwell, where it joins the
water taken from the river Lea, and from thence it continues to run with the
said water so taken from the river Lea, in one joint course to Islington. The
said land alone, without the spring, and if it were not covered with water,
is of the annual value of 5l. The whole profits of the company arise from
the sale of the water, no part of which is distributed, nor is any of the
money received for it by the company, nor does any become due in the
liberty of Little Amuell. If the advantage which the company derive from
the use of the spring, may by law be included in the rate upon the land, the
land and spring of water together, are of the annual value at which they are
rated. The sessions confirmed the rate.Bourchier supported the order of ses-
sions; and Berens, Trollope, and Walford, contrà.—Lord Ellenborough, C. J.
This is a rate imposed on land, including a spring of water, as being of the
aggregate annual value of 3001. The case finds “ that the land alone, with-
out the spring, and if not covered with water, is of the annual value of 51.;
but if the advantage which the company derive from the use of the spring
may by law be included in the rate upon the land, the land and spring
together are of the annual value at which they are rated.” Much of the
argument against this rate seems to be built on a perversion of the terms of
this finding. I am at a loss to discover between this case and Rex v. Miller,
(ante, 89), any other distinction than that which has been alluded to, riz,
that the quality of the two waters is different, the one being a mineral, and
the other plain water. It has been assumed, indeed, that in that case all
the profits were received in the parish where the land lay: but the case
does not warrant any such conclusion ; and we know perfectly well
that the mineral water in question, in that case, is disposed of in great
quantities at distant places. It may be said also, that in this case the
owners of the property are also the occupiers, but there the property
was in the occupation of a tenant ; to which the answer has already
been given, viz. that the circumstance is no otherwise material than
as it affords a more easy criterion for ascertaining the annual value. Here,
then, is land and water inclosed in a basin upon the land, which falls
within the legal description of land; and although a considerable portion
of the profits of such water is derived from pipes, through which it is dis-
tributed to other places, yet it is found that the water has a certain
ascertained value at the fountain-head : and in cases of this kind it is
enough to ascertain the local value of the property, without enquiring
whether it yields a return on the spot. A degree of confusion has arisen

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