use, if they have the right of possession, and receive the profit arising on that, they will be rateable. Lord Tenterden, C. J. All that we can pronounce is, that we quash the order of sessions; the rate is not brought up before us. Order of sessions quashed. Rex v. Thomas, 9 B. & C. 114. By an act of parliament certain persons were authorised to make the river Avon navigable from B to H, and to maintain such navigation; and, for those purposes, to clear, scour, open, enlarge, or straighten the river; to dig and cut the banks, to make new cuts, trenches, or passages for water through lands adjoining; and to build bridges, sluices, locks, &c., and to do all other things necessary for making and maintaining the navigable passage, first giving satisfaction to the owners of lands; and commissioners were appointed to settle what satisfaction every person should have for such proportion of his lands as should be cut, dug, removed, or made use of for carrying on the undertaking, and to settle what proportion of such purchase money or satisfaction every person, having a particular estate or interest in any of the premises, should have for his respective interest; and, in consideration of the expences to be incurred, the undertakers were authorised to take, for their own proper use and behoof, certain tolls. The undertakers made the river navigable, scoured and cleansed the same, and made a certain cut and lock, for the purpose of the navigation, upon lands purchased by them: held that they were not liable to be rated to the poor for the land covered with water, being part of the river Avon, because they were not occupiers of that land, but had a mere easement in it; secondly, that they were liable to be rated for the cut and lock. Rex v. The Undertakers of the Aire and Calder Navigation, 9 B. & C. 820. An act of parliament of the 9 & 10 W. III. gave to certain undertakers authority to make navigable the river Aire, and for that purpose to cleanse and scour the same, and dig and cut the banks. By a subsequent act, reciting that the legal estate and interest in the navigation of the said river, and divers messuages, mills, warehouses, buildings, lands, tenements, and hereditaments, was vested in trustees, they were authorised by deed to sell and convey in fee such messuages, mills, lands, or tenements, belonging to the undertakers, or to convey in fee, by way of mortgage, as well the said navigation as also all or any messuages, mills, lands, tenements, and hereditaments, being the property of the undertakers: Held that the word "navigation" in that act imported an incorporeal hereditament, and that it authorised the trustees to mortgage in fee that incorporeal hereditament, and the first act having given the undertakers an incorporeal hereditament only in the bed of the river, they were not rateable to the poor as occupiers or owners of the river Aire. Fifthly, What property is rateable. 11. Docks, canal tolls, &c. into a dock, are rateable. Rex v. Dock Company of Hull, 1 T. R. 219; 1 Bott, 171; 1 Nol. P. L. 70. Lands converted Two justices allowed a rate for the relief of the poor of the parish of S.; the rate was confirmed, and the following case was stated, viz. That commissioners in pursuance of an act Geo. III. purchased lands in the parish of S., which both before and after the purchase were assessed to all parochial assessments: that the dock company converted three acres of the said land into part of a dock or basin, which in the whole contained ten acres. That the company in 1783 received a clear profit of 37601. for tonnage of ships; that a rate was made upon that part of the dock which lay in S.-By the Court. This is landed property lying within the parish, which clearly was the subject of a rate before the passing of this act. Then the question is, whether the act exempts this property which was rateable and rated before? But there are no words of exemption. As between the heir and executor, this is to be considered as personal property; but the legislature did not intend to alter it in any other respect. Rex v. The Hull Dock Company, 5 M. & S. 394. On the 2d of November, 1815, a rate was made for the relief of the poor of the parish of Sculcoates, for six calendar months, commencing on the 20th of September then last, in which the dock company at Kingston-upon-Hull were thus rated: "Dock Company, dock and wharf, 2240l.; 1867. 13s. 4d."-Upon appeal The Hull dock company were respect of the tonnage duties tue of statute, 14 held rateable in received by vir. tolls, &c. Geo. 3, c. 56, al though it appeared that the expenditure in repairs during the period for which the rate was made, exceeded the amount of the duties received. 66 Fifthly, What to the Epiphany quarter sessions, 1816, for the E. R. of Yorkshire, the rate property is rate- was confirmed, subject to the opinion of the court of K. B. upon the followable. ing case-By 14 Geo. III. c. 56, intituled, " An act for making and esta11. Docks, canal blishing public quays, or wharfs, at Kingston-upon-Hull, for the better securing his Majesty's revenues of customs, and for the benefit of commerce in the port of Kingston-upon-Hull, for making a basin or dock, with reservoirs, sluices, roads, and other works, for the accommodation of vessels using the said port," &c., (which is declared to be a public act, and to be judicially noticed as such,) (s. 15.) the dock company were empowered and required to make a basin or dock, and also a quay or wharf, and other works therein mentioned, for the general benefit of shipping, and of the trade and commerce of the said port. By s. 22, it was enacted," that the company should, at all times, well and sufficiently repair, maintain, support, and cleanse the basin or dock, and the quay or wharf, and other the works." By s. 42, & 45, certain rates or duties on ships lading or unlading goods within the port, and certain wharfage rates on goods which should be landed on the quay, were granted to the company. Besides the emoluments arising from the dock-dues, the company derive considerable emoluments from the rent of warehouses which they have erected, agreeably to the directions of the act. The warehouses are situated in the town of Hull, and not within the parish of Sculcoates. Two third parts of the dock are situate within the parishes of the Holy Trinity and St. Mary, in Hull, and the remaining third is in the parish of Sculcoates. In 1814, the dock company resolved to take down and rebuild the lock and entrance basin and side walls of the dock. They acted under the advice of their engineer, who, judging the dock to be in a bad state, directed a general repair. On the 2d of May, 1814, the ships were removed out of the dock, and the execution of the works commenced, and continued until the 31st December last. The expenditure of the company in respect of these works, from the 20th of September (being the day when the rate was made to commence), to the 31st of December following, amounted to 5,483l. 15s. 2d., and the receipts of the company, in respect of the duties and wharfage rates during the same period, amounted only to 2,963l. 18s. 7d. The further estimated expenditure of the company in respect of the works, from the 31st of December to the 20th of March, (when the six months for which the rate was made would expire), would be 1,1931. 7s. 4d., and the receipts of the company, in respect of the duties and wharfage-rates, would be 971. only. The chief part of the expence was incurred in respect of the lock and entrance basin, which are situate in the town of Hull, but are essentially necessary to that part of the dock which is situate in Sculcoates. From the time of passing the act to the making of the rate in question, the parishioners of Sculcoates have, in assessing the dock company to the poor rate, annually made a deduction of the company's expenditure in respect of the ordinary repairs of the dock, from the gross annual amount of the company's duties and wharfage-rates. The sums stated in the account of expences, were all necessarily expended in making the repairs in question, and provided the dock company is entitled to deduct the same from their gross receipts, there are not any net proceeds whatever for the use of the company. The company did not, in consequence of the rebuilding of the lock and entrance basin, become entitled to any greater or other duties or wharfage rates than they were before entitled to. The question for the opinion of the court was, whether the company were liable to be rated for the six months for which the rate was made. After argument, per Lord Ellenborough, C. J. The act of parliament does not require the company to make a dividend at all events, nor does it say, that they shall divide to the extreme limit of the monies received. Suppose an application to be made to this court for a mandamus, to compel the company to make a dividend of the whole balance in their hands, if the company were able to shew that the expence of the necessary repairs of the basin for the ensuing year, would be likely to absorb the whole or the greater part of this balance, would the court grant such a mandamus? And if the company were in any year to do so improvident an act, as to make a dividend to the uttermost penny, not reserving any thing for prospective demands; as there is a pro able. tolls, &c. vision in the act (s. 37), enabling them to make calls from the proprietors Fifthly, What for the necessary purposes of the act, the consequence would be, that instead property is rateof reserving out of the funds in hand, sufficient means to cover these expences, they must call upon the proprietors to refund what they had improvidently distributed among them. The language of the act is, "that the 11. Docks, canal company shall have power to make such calls of money from the proprietors of shares, to defray the expences of, or carry on the works authorised by the act, as they from time to time shall find wanting and necessary for those purposes." So that the company may call upon the proprietors of shares to refund what they have received. There is no question as to the rateability of this property; it has very properly been admitted that it is rateable. The question, therefore, is, whether a rate can be imposed in respect of property which is generally rateable, but the profits of which, owing to certain incidental and necessary expences, have been for a time exhausted. As to which it is to be observed, that a rate is not always imposed on property in the particular year in which it makes a productive return, for if that were so, there could be no rate in respect of saleable underwoods and the like property, which are productive only after a series of years, except in those years in which the profits arose. But in the case of Rex v. Mirfield, (10 East, 219), it was decided, after much consideration, that saleable underwoods were rateable annually, in proportion to their value, though they should happen not to be cut down more than once in 21 years. In the present case, the company have no money in hand, but they have a property which upon an average is productive. To hold that in every case where property is rateable, an account is to be taken for the particular period for which the rate is imposed, of the precise amount of its productiveness, and that if there is the smallest decrease, the rate is to be reduced pro tanto, would, in my judgment, be infinitely inconvenient. Every house must then have its separate assessment, in order to let in the particular deductions belonging to each; and this mode of assessment would be open to every species of fraud, because the largest deductions would be attempted to be thrown on periods of the greatest pressure. It appears to me, that this rate is well imposed, and that the average profits of the company are not liable to be merged in the partial expenditure of any particular period. I think, therefore, that this order ought to be confirmed.-Bayley, J. The case does not state that this property, communibus annis, is not productive of profit, but only, that during this particular period it was not profitable. It appears that the company are in possession of property which is, primâ facie, rateable; the rate, therefore, is well imposed, unless the property is to be exempted, on the ground of its not being profitable at the particular period for which the assessment is made. As to which, Rex v. Mirfield, is a clear authority, that the principle which is to govern, is, whether it be profitable, communibus annis.-Abbott, J. I think the company cannot relieve themselves from this rate, by shewing, that, on occasion of some extraordinary expenditure, during the particular period for which the rate is made, that which would have gone to the account of profits, has been otherwise consumed. To hold any such rule would, in my opinion, be productive of great inconvenience; for by the same rule, I know not what answer could be given to the farm-holder or householder, if they were to claim a similar exemption, because of the extraordinary expence which they had incurred in the maintenance or improvement of their house or land.-Holroyd, J. I am of the same opinion. The only doubt which I have entertained, has been on s. 22, which obliges the company to repair the dock and other works; and if, under that section, the specific rates had been, so far as they were required, appropriated to that purpose only, I should have entertained considerable doubt whether any property vested in the trustees, which could properly be made the subject of rate, beyond the surplus which might happen to remain in their hands, after satisfying the expences attending the maintenance and repair of the works. But the case is not so, for I find, by s. 42, the duties payable by virtue of the act are vested in the company as their own proper monies, and for their use, in consideration of the expences incurred by them in making and Fifthly, What property is rateable. 11. Docks, canal rates, &c. are by all taxes and assessments, the land occupied by the canal is also exempt from poor's rate. ings of canal company, when not rateable by improved value. maintaining the works; and by s. 53, they are to take an account, annually, and declare what dividend shall be made; so that they stand in the same situation with any other canal company. Order of sessions confirmed. Rex v. Calder and Hebble Navigation Company. 1 B. & A. 263. A rate on land is in effect a rate on the profits of the land, for where there are no profits there is no beneficial occupation, and consequently where a statute empowered the proprietors of a canal to take rates in respect of vessels navigating the same, and expressly exempted such rates from the payment of all taxes, rates, &c., it was holden that the land occupied by the canal was also thereby exempted from the poor's rate, there being no other profits of the land. Rex v. Grand Junction Canal Company. 1 B. & A. 289. A canal act Lands, and build- directed that the company should be rated for all lands and buildings in the same proportion as other lands and buildings lying near the same, and as the same would be rateable if they were the property of individuals in their natural capacity; and a subsequent act directed that all rates and assessments upon the personal estate of the company should be assessed in every parish in proportion to the length of the canal in such parish. The Court of K. B. held, that the company were liable to be rated for their lands, &c., only at the same value as other adjacent lands, and not according to the improved value derived from the land being used for the purposes of the canal. Where tolls are paid for passing a certain barge way, the way is rateable for those profits. Rex v. Inhabitants of St. Peter the Great, in the County of Worcester, 5 B. & C. 473; 8 D. & R. 331. By a canal act of the 31 Geo. III. c. 31, s. 77, it was enacted that the company should be rated to all parochial taxes in respect of their lands, &c., in the same proportion as other lands lying near the same should be rated, and as the same lands would be rateable in case the same were the property of individuals in their natural capacity. By a subsequent act of the 38 Geo. III. c. 31, s. 20, it was enacted that the company should be rated to all parochial taxes in respect of the lands used by them for the purpose of the said navigation, in the same proportion as other lands and buildings adjoining or lying near the canal should be rated; but it was further enacted that it should be lawful for the company to agree with any owner of lands adjoining their lands, taken for the purpose of the said navigation, for an exemption from all rates and taxes in respect of such lands, and for charging the same upon the adjoining lands of such persons; and in all such cases the parochial taxes, rates, &c., which might be thereafter charged upon or payable in respect of the lands so taken for the purposes of the said navigation, should be rated and charged upon such adjoining lands, and upon the owners and occupiers thereof, and the lands of the company should be exempted and discharged therefrom. Held first, that by the 31 Geo. III. c. 31, s. 77, the company were not liable to be rated for the land used for the purposes of the canal according to its improved value. Held secondly, that the 77 sec. of the 31 Geo. III. was not repealed by the 20 sec. of the 38 Geo. III., and that the company were not liable to be rated for the improved value of the land. Rex v. The Mayor, &c. of London, 4 T. R. 21; 1 Bott, 196; 1 Nol. P. L. 79, 87, 179, 212. The defendants were rated for the barge-way and tollgate in the hamlet of Hampton Wick, Middlesex, and appealed against the same, and the sessions confirmed the rate. The facts were, that the appellants, by virtue of an act of parliament, purchased an ancient barge-way or towing-path within the hamlet of H. W. upon the Thames bank, and certain ancient tolls payable in respect of horses drawing barges along the same. The appellants leased the herbage of the way and path for a sum which was appropriated to the navigation; the lessee occupied and paid rates for the herbage. The old tolls were discontinued, and new tolls were taken for all barges navigating between London Bridge and the City Stone, according to the quantity of tonnage; 14d. per ton was payable and paid to the appellants for every barge towed along a certain part of the barge-way, and H. W. is within that limit, and the tolls were collected elsewhere, and not at H. W. -Ld. Kenyon, C. J. The difficulty has arisen from not considering what is rated. It is not a rate on the tolls, but the close of land called the barge way, and the toll-gate. Now the questions are, first, Whether the property Fifthly, What be or be not rateable? Second, Who should be rated for it? First, the property is rateable. subject-matter of the rate is real property; it is land, tenement, or hereditament, and it is liable to be rated unless it be so circumstanced that there is 11. Docks, cana no occupier on whom the rate can be imposed. But here the city of London tolls, &c. are occupiers; for the lessee's interest is confined to the herbage and pasture. And there is no doubt that they are in possession of the actual occupation of this towing-path. Rex v. Ellis, 1 M. & S. 652. The defendant was rated to the relief of the poor of the parish of Westbury-upon-Severn, in the county of Gloucester, as lessee of all those fishings of the halves and halven-doles, with the appurtenances to the halves due and accustomed within the river Severn, between certain limits within a manor bordering on the said river under an annual rent; against which rate he appealed to the quarter-sessions, who confirmed the rate, subject, &c.-Holroyd and Abbott supported the order of sessions ; and W. E. Taunton and Campbell contrà.—Lord Ellenborough, C. J., after complimenting these gentlemen for the industry and learning displayed in the argument, said, the rate has been confirmed by the sessions; we must therefore see that they have done wrong before we determine that their adjudication ought to be quashed. I will not assume that a fishery, as an incorporeal hereditament, is the subject of a rate. The question then is, Whether there be any land connected with this fishery so as to be the subject of rate. What is the thing granted? In 1625, the king grants “all that our fishery of the halves and halven-doles with the fishings called Unlawater, with the appurtenances to the halves due and accustomed." I could have wished that the sessions had explained to us, if any lights were afforded by the evidence, the meaning of the term "halves and halven-doles," which is not very familiar to us. It has been treated in argument as if it related to half of the river, and the grant being" with the appurtenances to the halves due and accustomed," is in favour of the construction of the half ad filum aqua, which, according to Lord Hale, belongs, by the constant custom of the country, to the lords of the manors on either side of the river; in support of which custom he cites the Ld. Barclay's case. But whatever its meaning may be, I think from the grant of " the fishings with the appurtenances to the halves due and accustomed," it appears distinctly that these halves and halven-doles are of the nature of land, or some local limit within which the fishery connected with the soil is to be exercised. I cannot consider it otherwise than as a grant of something territorial. I do not found my opinion on this being a sole right of fishery, or coming within any particular description of fishery under which the soil must pass; but I think that under the circumstances we ought not to quash the order of sessions, unless we are satisfied that the sessions could not, upon any reasonable ground, conclude that by this grant of halves and halven-doles, &c., some territorial right was conveyed. The other judges delivered their opinions at great length, but concurring, the order of sessions was confirmed. poor, Rex v. Bell, 5 M. & S. 221. Upon appeal by Bell to the quarter sessions for the county of Cumberland, against a rate made for the relief of the of the township of Cockermouth, the sessions confirmed the rate, subject, &c. The Earl of Egremont is lord of the manor of Cockermouth, and owner of the soil of the streets of the town of Cockermouth. He, or his lessees, have from time immemorial collected and received certain tolls of corn sold in the market; the toll has, however, been hitherto collected at the commencement of the market out of every sack brought and exposed for sale. The earl, or his lessees, also receive payments for stallage there from persons using stalls, and exposing upon them such things for sale as are usually sold on stalls; and the earl, or his lessees, take the sweepings of the streets. The market is a market by prescription, and is holden in the public street and highway in the town of Cockermouth, where the sacks of corn are set down for sale, and the tolls are there taken. The tolls of corn are a handful out of each sack; Bell is the present lessee of them, and pays a yearly rent of 50l. to the earl, and as such lessee, takes the tolls of corn in the market; but he is not an inhabitant of the township of Cockermouth, nor possessed of any pro The lessee of certain fishings in the river Severn, was held rateable to the poor of the parish of W. The lessee of market tolls in gross not incident to the soil, is not rateable to the poor in respect of his occupancy thereof. |