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able.

from land.

Fifthly, What the shape of tolls; but the gas company could obtain no profit by merely property is rate- laying down these pipes for the conveyance of gas through the streets. The gas must afterwards be manufactured by the company at a great expence, and sent through those pipes before they will be entitled to any recompence. 10. Extra profits The gas company stand, therefore, in the same situation as any other manufacturer who produces by artificial means a saleable commodity. Now the profits of such a manufacturer could not, with justice, be rated to the relief of the poor in a parish where other profits and other stock in trade are not rated. I think, therefore, that the company ought to be assessed at that annual sum for which the premises and pipes would let to a person willing to carry on the trade, and, therefore, that the rate ought to be amended by inserting the sum of 2001. instead of 800l., and 51. instead of 201. Rate amended accordingly.

A gas company are rateable as occupiers of the land wherein their mains and

pipes are laid, for the entire profits of that land, part

of them arising from such pipes so laid therein.

Rex v. Brighton Gas Light and Coke Company, 5 B. & C. 466; 8 D. § R. 308; 4 D & R. Mag. Ca. 60. The company was established by act of parliament for lighting Brighton with gas. The buildings and manufactory are in the parish of Rottingdean, the mains or pipes, forming the subject of appeal, are placed in the ground in the parish of Brighton, where the gas is sold and consumed; the company being authorised, with the consent of certain commissioners (appointed under another act for paving and lighting the town), to open the ground in the streets of Brighton for this purpose. The mains or pipes were assessed at 401. per annum, being a ninth part of the estimated value of 360/., that being the proportion in which other rateable property is there rated. Personal property is not rated in Brighton. It was proved that the mains and pipes were worth 360l. a-year at the least, to any person who could use them for the purpose for which they were laid down. The sessions confirmed the rate. The case having been argued, Bayley, J., said; The only question in the case is, whether the company can be deemed occupiers of land, and to the extent to which they are rated. If it were doubtful in this case, whether the pipes constituted part of the freehold, the company would, at all events, be liable to be rated for an occupation way; but I think that we may collect from the case, that the pipes are fixed in the soil; and if so, then Rer v. The Corporation of Bath, 14 East, 609, establishes that they are to be deemed occupiers of that land in which the pipes are fixed. Rex v. The Rochdale Water Works Company, 1 M. & S. 634, and Rex v. The Birmingham Gas Light and Coke Company, 1 B. & C. 506; 1 D. & R. Mag. Ca. 385, establish the same principle. In many acts of parliament, authorising the making of a canal, it is provided, that the company shall not be rated at a higher rate than the adjoining land; but if there be no such provision, then they must be rated in respect of the value which the land has acquired from its having been used for the purposes of the canal. There is no such provision in this case; and as the pipes are laid down so as to become part and parcel of the land, for the time they remain, they thereby improve the value of the land, in the same manner as buildings erected upon the land, and the whole must be rated accordingly. I entertained some doubt at one time whether the right of the company to remove the pipes might not prevent their being rateable in respect of the increased value of the land; but upon reflection it appears to me, that that makes no difference, because they must be rateable upon the same principles as buildings are which may be removed at the end of the term. There are cases which in principle are similar to the present. Thus a person who had the exclusive occupation of a waggon way, and not a mere right of passage, has been held to be rateable. Upon these grounds I am of opinion, that the property is rateable. Secondly, that it is rateable to the extent of the value of that which, for the time, constitutes part of the freehold. Thirdly, I am of opinion that the rate is properly made in Brighton, and not in Rottingdean, because the rate must be upon the land occupied by the company, and here the land occupied is in the parish of Brighton.-Holroyd, J. The first point is decided by many cases which are similar in principle to the present. I think, therefore, that so long as the company use the land for the purpose of their pipes, they are rateable, for they have the exclusive occupation of that part of the land in which their pipes lie; and that they are rateable for

Fifthly, What property is rate.

able.

from land.

the entire profits of that land, part of them arising from the gas pipes placed in the land.-Littledale, J. The only difficulty in the case is, whether the company are to be considered as occupiers of land. Now in Dyson v. Collick, 5 B. & A. 600, it was held that the contractors for making a navigable canal having, with the permission of the owner of the soil, 10. Extra profits erected a dam of earth and wood upon his close, across a stream there, for the purpose of completing their works, had a possession sufficient to entitle them to maintain trespass against a wrong doer. This is an authority to shew that the company were virtually in the occupation of this land, and being in the exclusive occupation of that portion of land in which their pipes lay, they are rateable within the principle laid down in Rex v. The Corporation of Bath, and Rex v. The Rochdale Water Works Company. Order of sessions confirmed.

The profits of a

house containing the steelyard of a weighing machine, are rateable as arising from the machine being annexed to

the house itself,

the freehold.

Rex v. St. Nicholas, Gloucester; Cald. 262; 1 Bott, 163; 1 Nol. P. L. 81. The mayor and burgesses were possessed of a house in the parish of St. Nicholas, in Gloucester, and erected a machine in a street by the said house for weighing waggons, carts, &c., for which they received 2d. per ton for what was weighed there, but persons were not compellable to weigh their carriages, &c. The steel-yard, part of the said machine, was in the said house, which was called the engine-house: the house, exclusive of the profits of the machine, was worth 57., and the profits worth about 40/. a year: the mayor and burgesses were rated, " for the machine-house 241.: 11. 16s."-Per Ld. Mansfield, C.J. The nature of the thing shews that the machine is annexed to the freehold; they are one entire thing, and are together rated by the common known name (the machine-house), which comprehends both. The steel-yard is the most valuable part of the house; the house therefore applied to this use, may be said to be built for the steelyard, and not the steel-yard for the house: the clear profits are undoubtedly rateable, but a liberal allowance ought to be made for wear and tear, labour and attendance.-Willes, J., said, if the machine be appurtenant to the building, its clear profits are undoubtedly rateable. If a billiard-table Billiard Table. stand in a house, and the house should, in respect of such table, let at a higher sum, it would be rateable, while the table continued there and was so let, at the advanced rate. Rate affirmed.

In Rex v. Hogg; Cald. 266; 1 T. R. 721; 1 Bott, 177; 1 Nol. P. L. 88. It was holden that a house wherein there was a carding machine for manufacturing cotton, being let together with the machine as one entire subject, (the building being worth only two guineas a-year by itself, but together with the machine rated at 361.,) was properly rated as one subject. It was stated in the case that the engine was not fixed to the premises, but capable of being removed at pleasure.-Ashhurst, J., considered the house and engine as one entire subject, and therefore rateable as such.-Buller, J., considered them rateable both on that ground, and also because the engine was permanent property, visible, and yielding profit.-Grose, J. agreed upon the same grounds.

Rex v. Bradford; 4 M. & S. 317. A canteen in barracks demised to B. by the barrack-board for a year, at a rent of 15l. for the canteen and buildings, and also the farther sum of 510l. for the privilege of using the same as a canteen, and selling therein provisions and liquors, &c., usually sold by sutlers, with power of distress for the aggregate sum, was held to be one entire rent for the canteen; and therefore B. was held rateable to the relief of the poor as occupier of the canteen, in respect of the 5251. aggregate rent, and not merely in respect of the 157.

11. Docks, Canal Tolls, &c.

The profits of a

house having a carding machine

are rateable.

Annual sum paid for privilege of using a building as a canteen, con

sidered as part of the rent and rate

able as such.

11. Docks, canal

The great benefit resulting to commerce, and the consequent promotion of the national prosperity, from the establishment of docks, and of internal tolls, &c. navigation by means of canals, does not exempt lands and buildings devoted to these purposes from the poor's-rate, wherever they are the property of individuals or companies who derive an immediate profit from them by means of dues, tolls, &c. If, however, the entire funds thus raised are destined, exclusively, to the repayment of the original outlay, and

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the necessary expenditure in keeping the works in a proper condition, then there are no beneficial occupiers within the meaning of the statute, and in such circumstances the poor's-rate cannot be demanded.

With respect to river navigation, as connected with this subject, it must be borne in mind that it is now settled that only such occupiers as have an exclusive occupation of land, whether covered with water or not, so as to enable them to maintain an action of trespass, in respect of any injury done to the land, are rateable as occupiers of such land. (Rex v. Mersey and Irwell Navigation, 9 B. & C. 95.) Where, therefore, the occupancy amounts to no more than an easement in the soil of another, as in the case of trustees of turnpike roads, or navigable rivers, they are not rateable as occupiers of the lands over which such roads, or rivers pass, although they are authorized by act of parliament to keep the former in repair, and cleanse, scour, open, enlarge, and remove all obstructions to the navigation of the latter, and to receive tolls or dues, from those passing along the same. But if such trustees make additional cuts or canals, upon lands purchased by them, and erect locks, sluices, or other works for the more profitable enjoyment thereof, then, according to all the authorities, they are rateable in respect of the occupation of such cuts, locks, wears, drains, &c.; although the profits are earned chiefly by the passing along the navigable river. Steer's Par. L. 409.

The above is the doctrine established by the case above cited, and Rex v. Thomas, 9 B. & C. 114, both of which follow.

Rex v. The Mersey and Irwell Navigation Company, 9 B. & C. 95. By 7 Geo. I., certain persons, therein nominated undertakers, were authorized, at their own cost, to make the rivers Mersey and Irwell navigable from Liverpool to Manchester, and to maintain such navigation; and for those purposes to open, scour, enlarge, or straighten the said rivers, and to dig or cut the banks thereof; and to make any new cuts, trenches, or passages for water in the adjoining lands, as should be necessary for the navigation of boats and other vessels, and if necessary, to cut and remove trees, gravel beds, &c., which might hinder the navigation; and to erect bridges, sluices, locks, &c., as should be necessary where they should think fit, and to turn any highways, and make towing paths near the rivers, and do all other things necessary for the maintenance and improvement of the navigation of the said rivers, first giving satisfaction to the owners of property taken or destroyed for the purposes of the act. It was further enacted, that in consideration thereof, it should be lawful for the said undertakers and no others to take certain tolls for their own proper use and behoof; and that the said rivers should for ever thereafter be deemed navigable from L. to M., and that all the King's subjects with their goods, &c., might have free passage thereon, with boats and other vessels, &c., without hindrance, paying such rates or duties as were appointed by the act to be paid to the undertakers, &c. The company was incorporated by a subsequent act, (4 Geo. III.) and invested with the same powers as in the former act. The sessions held that the company were rateable for the whole line of navigation within the township to which they were in this instance assessed, in respect of the land taken and used by them for the Mersey and Irwell Navigation, the towing-paths, wears, locks, cuts and sluices, and assessed the annual value of the profits at £2,600, and ordered the rate to be reduced accordingly, being of opinion that the amount of the tonnage as originally stated in the rate (£2,908 7s. 6d.) was overvalued. The case was argued at great length, after which

Lord Tenterden, C. J. I am of opinion that the company of proprietors are not rateable for the ancient bed of the navigable part of the river; and inasmuch as the rate, which the sessions have affirmed, is made on them as occupiers of that part of the navigable ancient bed of the river which is situate in the township of Barton-upon-Irwell, the order of sessions must be quashed. It does not follow, however, that the whole rate ought to be quashed by this court, even on these proprietors, much less the whole rate on the whole parish. Some matters there are which, according to the present state of the case, appear to be rateable; such as the new cuts, which

able.

tolls, &c.

are made through the soil of which the proprietors were actual purchasers. Fifthly, What They must be considered, in respect of those cuts, in the same light as the property is rateproprietors of any ordinary canal. So of the locks: and the only question will be as to the amount. I say nothing about the towing paths; for there seems to be some question whether the facts as to the length of those in the 11. Docks, canal township, are correctly stated. But inasmuch as there is one sum now applied to a subject for which the company are not rateable, joined with a subject-matter for which I think they are rateable, the inclination of my mind is to quash the order of sessions, and send the case to them that they may rate such parts as are rateable according to their own judgment, if they can come to any proper conclusion upon the question.-Bayley, J. When this question was first presented to my consideration, in the case of Rex v. Thomas, it struck me that the company were liable to be rated in respect of the navigation and the other property; but on further consideration, I think that with reference to the navigation, viz. the navigable bed of the river, I was wrong. In order to make them rateable, they must be within the words of the 43 Eliz. "occupiers of lands or houses," and it struck me at first, that inasmuch as they had a right to have the bed and banks of the river upheld, to hold the water, which water they were to use, they might, perhaps, be called the occupiers of that land which was so covered with water, and which held the water so afterwards to be used. But when, after considering the subject, I find that they can maintain no description of action which an occupier is capable of maintaining, I am now disposed to think that the correct view of the case is not that they are occupiers of the land covered with water, but that they had an easement only in the land. Where the proprietors of a canal purchase the land, and are themselves owners of the soil, they are rateable, on the principle that they are the occupiers of the soil which belongs to them; but in this case, the soil, as far as we can form any judgment, does not belong to this company. They have only a qualified right to use the land, to deepen the channel of the river, and make the soil fit for the purpose of holding the water, which water they are afterwards to use; but subject to the right of navigation being vested in them, and subject to the right they have that the soil shall continue to hold the water in which the navigation is to take place, the soil remains in the ownership and occupation of those persons to whom that soil originally belonged. When the company make cuts under the powers of the act of parliament, which authorises them to buy the land for the purpose of making these cuts, they are, with reference to those cuts, proprietors and occupiers of land, and therefore rateable in respect of that land. As they have a right also to erect wears, and dams, and locks, those wears, and dams, and locks, being on their own land, become their own real property; and they are the occupiers of that land on which those wears, dams, and locks, respectively are, and they are therefore rateable in respect of them. But, for the reasons I have given, (which I have thought right to state, having, on a former occasion, expressed an opinion that the navigation was rateable,) I am of opinion that they are not liable to be rated for the navigation. It seems to me, therefore, that the proper course is to send the rate down to the sessions for amendment. For, if the rate be quashed, this consequence will ensue; namely, that a rate will be levied in respect of the bygone time, and the former overseers of the parish will be reimbursed by rates to be levied, not on the persons who were occupiers at the time when the expenditure took place, but by a rate on those persons who have become occupiers since that time. For these reasons I think the case ought to go back to the sessions, that they may rate those parts of this property which ought to be rated.-Littledale, J. I am entirely of the same opinion, that the principal subject of this rate, viz. the navigation, is not rateable, and I think the case ought to go back to the sessions to have the rate amended. The inconvenience mentioned by my Brother Bayley, would certainly arise if the rate were quashed entirely; but for that, I should have thought it more convenient that this part of the rate should have been quashed altogether. It seems to me there may be some difficulty, but we have nothing to do with that, in ascertaining how those locks and towing paths are to be

property able.

rate

Fifthly, What rated. The rate is an entire rate on the whole profits, and I do not see how it is possible to say how much a lock or a towing path produces. Suppose they were to make 2,000l. annual tolls, how can it be ascertained what proportion of that sum is contributed by the locks and towing paths. That, 11. Docks, canal however, is a question for the sessions.-Parke, J. I agree with the rest of tolls, &c. the court, in thinking that the order of sessions should be quashed. The question has been argued with much ability, and, at last, is reduced to a very simple point, namely, whether we can pronounce that these defendants are, on this finding, "occupiers of lands." If they are occupiers of lands, they are rateable; if they are not occupiers of lands, they are not rateable. Many of the early cases of rateability seem to have proceeded upon a disposition of the court, (pardonable, but, perhaps, not strictly correct), to extend the operation of the statute of Elizabeth, so as to include as large a fund as possible in the rate. The law on this subject was, at length, settled in the case of Williams v. Jones, 12 East, 346. It is clear, from that case, that no one can be rated unless he be an inhabitant or occupier, and these defendants are not inhabitants. The question then is, whether they are occupiers of land? If they have a mere easement they are not rateable. Persons who have a right of common, a right of wayleave, or a right of ferry, are not rateable. This subject matter of rate cannot be well distinguished from the case of a ferry from which the owner of the ferry derives a particular benefit, and from the use of which the public also derive a benefit. In Williams v. Jones, the owner of the ferry had repaired the landing-place, which was parcel of a highway on the bank of the river, and had a post fixed in the ground there, to which the boats were usually moored, and yet he was held not to be the occupier of the highway, though he had a special power and privilege as to a part of it. Now in this case it is quite clear that as to the bed of the river, the Mersey and Irwell Navigation Company had only a special power; they had not the exclusive occupation of any part of it. It seems to me, therefore, they are not rateable for the bed of the river. No person can be an occcupier unless he has the exclusive right to enjoy some portion of the soil. It will be found that that obtains in the case of the gas companies. There the companies who have gas pipes have the exclusive right to enjoy a portion of the soil; they have the exclusive right of occupying, by means of these pipes, that portion of the soil in which the main is. But in this case the company have no exclusive right to occupy any part of the soil of the bed of the river. As to the locks, if it shall appear that the property of the soil (where the locks are made) is in the company, they will be rateable. As to the cuts made at the outset of the navigation, (the property being in the company), they are rateable in respect of them. There may be a difficulty in affixing the quantum of rate; that, however, is not for us, but for the sessions to settle. They will fix that according to the degree of productive value which they may ascertain to arise from the occupation of this particular part of the soil. It seems clear, on the whole, that in this case the company of the Mersey and Irwell navigation are not rateable for the bed of the river, for they have merely an easement in it. Probably, certain acts which they have exercised might be primâ facie evidence of their being owners of the soil; but the moment the statute is looked at, it is quite clear that those acts are referable to the powers they have under the statute, and not to any exclusive right to the possession of the soil. It seems to me, therefore, that they are not liable to be rated for the bed of the river, having only an easement in it, but that they are liable to be rated for the cuts, for they are owners of the soil of them, and derive a benefit from them, either directly in the shape of toll, which they receive from other persons, or indirectly in respect of what they receive from their own customers; and whether they receive it from other persons who pay toll, or receive it from their own customers at the end of the voyage, makes no difference, as the enjoyment of that land is profitable to them in both cases, and for that profit they ought to be rated. As to the remaining question, it will be whether they are owners of the soil on which the locks are placed: if they are, and if they have the land on which the locks are placed in their own

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