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KOSHER, M.A., IM OK LINCOLN'S-INN ASD OF THE SOUTH-EASTERN CIRCUIT, BABRISTER-AT-LAW. LONDON: W. MAXWELL & SON, 8, BELL YARD, TEMPLE BAR, Booksellers anto MEREDITH, RAY, & LITTLER, MANCHESTER; HODGES, FIGGIS & CO., AND E. PONSONBY, DUBLIN; CHARLES F. MAXWELL, MELBOURNE & SYDNEY. 1883. LONDON : BRADBURY, ACNEW, & CO., PRINTERS, WHITEFRIARS T PKEFACE THE principles of Rating, though founded on statute, are to a great extent the outcome of the judicial decisions of nearly three centuries. Those decisions have somewhat fluctuated from time to time, and though the author's object has been simply to present a statement of the law as it now exists, it has not always been possible to do so satisfactorily without to some extent tracing the course of its de- velopment. He has endeavoured to combine a lucid explanation of the principles of Rating, with such an arrangement of the subject as will facilitate reference to any required point. The author desires to acknowledge his obligations to the first edition of Mr. E. J. Castle's work on the Law of Rating. 3, GARDEN COURT, TEMPLE. April, 1883. 755955 TABLE OF CONTENTS. PA(!K TABLE OF CASKS ............ ix INTRODUCTORY PART I. WHAT RATEABLE. Real but not Personal property . . . .* . . .8 Tithes 12 Coal and other Mines . . .17 Saleable Underwoods, Plantations and Woods . . . . 18 Rights of Shooting, Fishing, &c 18 Turnpike and other Tolls 19 Exemption of Churches and other Places of Worship, and Discretionary Exemption of Sunday and Ragged Schools 26 Exemption of Property occupied by Literary, Scientific and Artistic Societies 28 Exemption of Volunteer Storehouses . . . . . . .34 Exemption of Lighthouses, &e. . 34 PART II. WHO RATEABLE. Elements of Rateable Occupation .36 Possession . 38 Actual User 60 Title Immaterial . . . 62 Permanence . . . . .64 Profit Beneficial Occupation . . 69 The Crown not a Ratenhlo Occupier . . ' 74 TABLE OF CONTENTS. PART III. How RATEABLE. PAGE General Principles : Eating must be equal ......... 81 Property must not be rated twice over . . . . . . 84 Rebus sic stantibus . . . . . . .86 Communibus annis 93 Enhanced value .......... 98 Parochial principle ..114 Contributive value . . . . . . . . .119 Distinction between Direct and Indirect sources of profit . . 138 The Rating of : Railways, Canals and Docks, Gas, "Water and Tramway Companies 141 Bridges 157 Mines . 158 Tithes 162 Saleable Underwoods, Plantations and Woods . . . . 165 Rights of Shooting, Fishing, &c. 167 Lunatic Asylums 168 Land generally 169 INDEX . 173 TABLE OF CASES CITED. A. ABKRYSTWITH, R. v., 52, 61 Abney Park Cemetery Co., R. v., 47, 98 Adames, R. v., S3, 84, 147 Adamson v. The Clyde Trustees, 77 Agar, R. v., 50, 95 Aire and Calder Navigation Co. (1st case), 22 (2nd case), 22 Alberbury, R. v., 85 Alison v. Monkwearmouth Shore, 104 Alnwick, R. v., 39, 45 Ambleside, R. v., 10 Amherst v. Sommers, 75 Andover, R. v. t 9 Anon., 61 Attorney General v. Oxford, Worcester, and Wolverhampton Ry. Co., 147 Attwood, R. I?., 88, 161 Audly, R. v., 82 Ayr v. Smallpeace, 62 B. BAPTIST Mill Co., R. v., 158 Baptist Missionary Society, R. v., 30, 31 Barking, R. v., 9 Barnes, R. v., 118, 158 Bartlett, R. v., 14 Bath (Corporation of), R. v., 38, 139, 155 Bath River Navigation Co. . Willis, 22 Battle, R. v., 168 Bedford (Duke ofj v. St. Paul, Covent Garden, 25 Bedford Union, R. ., 100, 129, 131 Bell, R. r., 25, 62 v. Crane, 28 Bilston, R. v. (1st case), 93 R. v. (2nd case), 147 Birmingham Canal Navigation Co. r. Birmingham, 65 Birmingham and Staffordshire Gas Co., R. v., 108, 109 Birmingham (Churchwardens of) v. Shaw, 30, 31, 82, 34 New Library case, 30, 31, 34 Blackfriars Bridge Co., R. v., 151, 158 Boldero, R. v., 17, 165 Bradford, R. v., 33, 103 Brandt, R. v., 31 Brettell, R. v., 17 Bridge water Trustees, R. v., 84 Brighton Gas Light Co., R. v., 155 Bristol Dock Co., R. v., 22, 154 Brograve, R. v., 82 Brown, R. v., 85 Bucks (Justices of), R. v., 61 Bute P. Grindall, 66, 79 C. CAMBRIDGE Gas Co., R. v., 139, 155, 156 Cannock Case, The, 126, 127, 132, 134 Canterbury, R. v., 9 Capel, R. 17., 161, 164 Carlyon, R. v., 16 Case v. Stephens, 36 Casswell, R. v., 25 Castle View, Leicester, R. t'. , 75, 79 Catt, R. v., 56 Chaloner v. Bolckow, 161 TABLE OF CASES CITED. Chaplin, R. v., 151 Chatfiekl v. Rushton, 165 Chelmer and Blackwater Navigation Co., R. v., 153 Chelsea Waterworks Co., R. -., 66, 79, 155 Chelsea Waterworks Co. v. Putney, 117, 156 Cherton, R. v., 147, 149, 154 Chidley v. West Ham, 113, 148 Chorlton-upon-Medlock (Overseers of) v. Chorlton (Guardians of), 89, 90 Churchill, R. v., 38, 40 Clarendon (Earl of) v. St. James', West- minster, 30, 31 Clark v. Fisherton Angar, or, Clark v. Alderbury Union, 101 Clarke v. Bury St. Edmunds (Over- seers of), 53, 54 Clerkenwell, R. v., 82 Cockburn, R. -p., 30 Coke, R. v., 20, 22, 103 Commissioners of Leith Harbour v. Inspector of the Poor, 77 Commissioners of New Shoreham Har- bour v. Lancing, 24 Commissioners of Salter's Load Sluice, R. v. t 36, 69 Congreve v. Upton, 80, 169 Cory v. Bristow, 40, 45, 47, 63, 64, 66 Coventry Canal Co., R. v., 153 Crease v. Sawle, 158 Cunningham, R. v., 17 D. DARLINGTON, R. v., 10 Dean v. Hogg and Lewis, 51 De la Beche v. St. James', West- minster, 77, 78 Devonshire (Duke of) v. Barrow Hema- tite Co., 161 Dobson v. Jones, 52, 53 Dudley Canal Co., R. v., 19, 114, 115, 116, 135 Duke of Bedford v. St. Paul's, Covent Garden, 25 Dunsford, R. v., 17 Durham (Earl of), R. v., or, Durham v. Bishopwearmouth, 23, 154 Dursley, R. v., 9 E. EARBT'S Case, 4, 9, 38, 81, 85 Earl of Clarendon v. St. James', West- minster, 30, 31 Earl of Portmore, R. v.', 22 Eastern Counties Ry. Co., R. v., 140, 145 East London Ry. Co. v. Whitechurch, 1 "1 Edwards, R. v., 80 Electric Telegraph Co. v. Salford, 38, 169 Everest, R. v., 96 Eyre, R. v., 19 Eyton v. Mold, 19, 166, 168 F. FIELD, R. v., 52, 56, 57 Fletton, R. v., 88, 133, 145 Foleshill, R. r., 162 Forrest v. Greenwich (Overseers of), 64, 66, 67 Fowke, R, v., 20, 21, 22 Fox v. Dalby, 52, 54, 55 Fulbourn, R. v., 169 G. GAMBIER v. Lydford, 80 Gardner, R. v., 57 Gaskill, R. u, 31 Glamorganshire Canal Co., R. i:, 152, 153 Goodchild, R. v., or Goodchild v. St. John's, Hackney, 147, 163, 164 Grand Junction Canal Co., R. v. (two cases), 153 Grand Junction Canal Co. v. Hemel Hempstead, 153 TABLE OF CASES CITED. Grand Junction Ry. Co., R. v., 99, 100, 122, 133, 139, 145, 148, 149, 150, 151 Grant v. Oxford Local Board, 44, 58 Granville (Lord), R. v., 114, 161 Great Dover Street Road Trustees, R. v., 26 Great Eastern Ry. Co. v. Haughley (Overseers of), 122, 127, 129, 134, 149 Great Western Ry. Co., R. v. (1st case), 99, 100, 122, 140, 146, 147, 148, 149, 150, 151 Great Western Ry. Co., R. v. (2ud case), 117, 120, 122, 123, 136, 149, 150, 151 Great Western Ry. Co. v. Badgworth, 133, 136, 146 Greig v. Edinburgh University, 76, 77 Guest, R. v., 108 v. East Dean, 93, 159 H. HACKETT v. Long Bennington, 148, 165 Hackney and Lamberhurst Tithe Com- mutation Rent-charge Cases, 163, 164 Haley r. Hammersley, 114 Hall Dare, R. v., 147 Halstead, R. v., 112, 148 Hammersmith Bridge Co., R. r., 139, 140, 141, 157 Hardy, R. v., 82 Barter v. Salford, 60, 61 Haslam, R. v., 114 Haughley Case, The, 122, 127, 129, 134 Hawkins, R. v., or Hawkins v. Lamber- hurst, 164 Hayward v. Brinkworth, 84 Hellawell v. Eastwood, 111 Hill, R. t>.,9 Hilton and Walkerfield v. Bowes, 19, 39, 168 Hogg, R, v., 9, 107, 108 Holford v. Copeland, 36 Holland v. Hodgson, 113 Holme Reservoirs, R. v., 151 Hopkins, R. v. , 13 Hughes v. Chatham, 53 Hull Dock Co., R. v., 94 (2nd case), R. v., 147 Hurdis, R. v., 66 INJCAS v. Kirkdale, 43, 45, 48 Institution of Civil Engineers, R. v., 31 J. JODDRELL, R. v., 163, 164 Joliffe, R. v., 40 Joiies, R. v., 30, 34 v. The Mersey Docks. See Mersey Dock Cases. K. KKMPE v. Spence, 39, 61, 102 Kenrick v. Guilsfield, 167 Kentmere, R. v., 86, 89 Kingston-upon-Hull Dock Co., R. v., 22, 23, 154 Kingston-upon-Hull Dock Co. (2nd case), 154 Kittow v. Liskeard Union, 63, 93, 159 L. LAINO v. Bishopwearmouth, 113, 148 Lake, R. v., 80 Lakenham, R. v., 82 Lambeth, R. v., 15 Lancashire (Justices of) v. Cheeth.im, 75,79 Lapley, R. v., 124 Lead Co. v. Richardson, 17 Lee, R. v., 110, 148, 155, 156 Leith Harbour (Commissioners of) v. Inspector of the Poor, 77 L3wis v. Swansea, 23 Lincoln (Mayor of) v. Holmes Com- mon, 73 Linnaean Society v. St. Anne's West- minster, 30, 31, 32, 33 TABLE OF CASES CITED. Liverpool Docks (Trustees of), R. v., 70 Exchange Co., R. r., 103 Library (Shareholders of) v. Liverpool (Mayor of), 30, 33 (Mayor of) v. Wavertree, 89 Llantrissant, R. v., 127, 129, 134 London (Mayor of), R. v. t 22, 36 v. Greenwich Union, 25 v. St. Andrew, Hoi- born, 152 v. St. Sepulchre, 25 v. Stratton, 72 London Tramways Co. v. Lambeth, 157 L. B. & S. C. Ry. Co., R. v., 117, 136, 146, 148, 150 L. &N. W. Ry. Co., R. v., 100, 129, 131, 132, 137, 134 v, Buckmaster, 149 v. Cannock (Over- seers of), 126, 127, 132 v.' Irthlingbo- rough, 131, 132, 134 v. Kings Norton, 146 v. Wigan, 148 L. & S. W. Ry. Co., R. v., 120, 140, 145 Longwood, R. v., 89 Lower Mitton, R. v., 114, 115, 118, 135, 139, 153 Lowndes v. Home, 17, 165 Lumsdaine, R. v., 10 ' M. MACDONALD, R. v., 19 Maiden, R. v., 61 Manchester, R. v., 30, 34 Manchester, Sheffield, and Lincolnshire Ry. Co. v. Caistor Union, 149 Manchester South Junction & Al- trincham Ry. Co., R. v., 88 Martin v. West Derby Union, 80 Marylebone v. Zoological Society of London, 30, 31 Mast, R. v., 87 Mayor of London, R. v. , 22, 36 v. Greenwich Union, 25 v. St. Andrew, Hol- born, 152 v. St. Sepulchre, 25 v. Stratton, 72 Mersey Dock Cases : Jones v. The Mersey Docks, and, Mersey Dock and Harbour Board Trustees v. Cameron, 28, 69, 73, 75 79, and passim. Mersey Docks and Harbour Board r. Birkenhead, 91, 139 Mersey Docks and Harbour Board v. Liverpool, 150, 151, 154 Mersey & Irwell Navigation Co., R. v., 20, 22 Metropolitan Board of Works, R. v., 20, 73, 88, 92 v. West Ham, 73, 87, 88 Metropolitan District Ry. Co., R. r., 152 Midland Ry. Co., R. v., 117, 136 v. Badgwoilh, or, Midland Ry. Co., R. r., 43 Mildmay v. Wimbledon, 45 Mile End Old Town, R. v., 140. 141, 151, 155, 156 Miller,. R. v., 102 Milton, R. v., 19, 21 Minster, R. v., 57 Mirfield, R. v., 94, 95, 166 Mitchell v. Fordham, 165 Mogg v. Yatton, 47 Monmouthshire Canal Co., R. v., 152, 153 Morgan, R. r., 61 v. Crawshay, 17 Morrish, R. v., 44, 47 Morrison, R. v., 66, 108 TABLE OF CASES CITED. xiu N. NEW RIVER Co., R. v.,102, 118, 136 New Shoreham Harbour (Commissioners of) v. Lancing, 24 Newmarket Ry. Co. v. St. Andrew -the- Less, Cambridge, 123, 124, 131, 133 Nicholson, R. v., 19, 21 North Aylesford Union, R, v., 101 North & South Shields Ferry Co., R, v., 24 North Staffordshire Ry. Co., R. v., 109, 110, 140, 148, 149 0. OXFOED CANAL Co., R. v., 114, 117 Oxford Poor Rate, Re, 30, 31 Oxford, Worcester, and Wolverhamp- ton Ry. Co., Atty.-Gen. ., 147 P. PALMER, R. v., 21, 135 Parish of St. Leonard, Shoreditch (Case of the), 2 Pan-ott, R. v., 69, 151 Percy v. Ashford Union, 25 Phillips, R. v., 29 Pimlico Tramway Co. v. Greenwich, 42, 156 Pocock, R. v., 30 Pomfret, R. v., 158 Ponsonby, R. v., 62, 66, 79 Portland (Duke of) v. St. Margaret's, Westminster, 79 Portmore (Earl of), R. v., 22 Postmaster-General, R. v., 75 Purchase v. Parish of the Holy Sepul- chre, Cambridge, 31 Purvis v. Traill, 31 Putney, R. v., 117 li. RANK v. Pickin, 17, 165 Regent's Canal Co. v. St. Pancras, 152, 153 Re, Birmingham New Library, 30, 31, 34 Re Oxford Poor Rate, 30, 31, 32 R. v. Aberystwith, 52, 61 v. Abney Park Cemetery Co., 47, 98 v. Adames, 83, 84, 147 v. Agar, 50, 95 v. Aire & Calder Navigation Co. (1st case), 22 v. (2nd case), 22 v. Alberbury, 85 v. Alnwick, 39 v. Ambleside, 10 v. Andover, 9 v. Attwood, 88, 161 v. Audly, 82 v. Baptist Mill Co., 158 v. Baptist Missionary Society, 30, 31 v. Barking, 9 v. Barnes, 118, 158 v. Bartlett, 14 v. Bath (Corporation of), 38, 139, 155 v. Battle, 168 v. Bedford Union, 100, 129, 131 v. Bell, 25, 62 v. Bilston (1st case), 93 v. Bilston (2nd case), 147 v. Birmingham and Staffordshire Gas Co., 108 r. Blackfriars Bridge Co., 151, 158 v. Boldero, 17, 165 v. Bradford, 33, 103 v. Brandt, 31 v. Brettell, 17 v. Bridge water Trustees, 84 v. Brighton Gas Light Co., 155 v. Bristol Dock Co., 22, 154 v. Brograve, 82 v. Brown, 85 v. Bucks (Justices of), 61 v. Cambridge Gas Co., 139, 155, 156 v. Canterbury, 9 v. Capel, 164 v. Carlyon, 16 v. Casswell, 25 v. Castle View, Leicester, 75, 79 v. Catt, 56 v. Chaplin, 151 TABLE OF CASES CITED. R. v. Chelmer and Blackwater Naviga- tion Co., 153 Chelsea Waterworks Co., 66, 79, 155 Cherton, 147, 149, 154 Churchill, 38, 40 Clerkenwell, 82 Cockburn, 30 Coke, 20, 22, 103 Commissioners of Salter's Load Sluice, 36, 69 Coventry Canal Co., 153 Cunningham, 17 Darlington, 10 Dudley Canal Co., 19, 114, 115, 116, 135 Dunsford, 17 Durham (Earl of), 23, 154 Dursley, 9 Eastern Counties Ry. Co., 140, 145 Edwards, 80 Everest, 96 Eyre, 19 Fletton, 88, 133, 145 Foleshill, 162 Fowke, 20, 22 Gardner, 57, 88 Gaskill, 31 Glamorganshire Canal Co., 152, 153 Goodchild, 147, 163, 164 Grand Junction Canal Co. (two cases), 153 Grand Junction Ry. Co., 99, 100, 122, 133, 139, 145, 148, 149, 150, 151 Granville (Lord), 114, 161 Great Dover Street Road Trus- tees, 26 G. W. Ry. Co. (1st case), 99, 100, 122, 140, 146, 147, 148, 149, 150, 151 G. W. Ry. Co. (2nd case), 117, 120, 122, 123, 136, 149, 150, 151 Guest, 108, 109 Hall Dare, 147 Halstead, 112, 148 Hammersmith Bridge Co., 139, 140, 141, 157 Hardy, 82 Haslam, 114 Hawkins, 164 Hill, 9 Hogg, 9, 107, 108 Holme Reservoirs, 151 Hopkins, 13 Hull Dock Co., 94 Hull Dock Co. (2nd case), 147 Hurdis, 66 Institution of Civil Engineers, 31 Joddrell, 163, 164 Joliffe, 41, 62 i'. Jones, 30, 34 v. Kentmere, 86 v. Kingston-upon-Hull Dock Co., 22, 23 v. Kingswinford, 19, 114, 115, 116, 135 v. Lake, 80 v. Lakenham, 82 v. Lambeth, 15 v. Lapley, 124 -v. Lee, 110, 148, 155, 160 v. Liverpool Docks (Trustees of), 70 v. Liverpool Exchange Co., 103 v. Llantrissant, 127, 129 v. L. & N. W. Ry. Co., 100, 129, 131, 132 - v. L. B. & S. C. Ry. Co., 117, 136, 146, 148, 150 - v. L. & S. W. Ry. Co., 120, 140, 145 v. London (Mayor of), 22, 36 r. Longwood, 89 - v. Lower Mitton, 114, 115, 118, 135, 139, 153 v. Lumsdaine, 10 v. McCann, 78 - v. Macdonald, 19 v. Maiden, 61 v. Manchester, 30, 34 v. Manchester South Junction and Altrincham Ry. Co., 88 v. Mast, 87, 89 v. Mersey and Irwell Navigation Co. , 20, 22 v. Metropolitan Board of Works, 20, 73, 88, 92 v. Metropolitan District Ry. Co., 152 TABLE OF CASES CITED. Midland Ry. Co., 117, 136 Mile End Old Town, 140, 141, 151, 155j 156 Miller, 102 Milton, 19, 21 Minster, 57 Mirfield, 94, Ib'ti Monmouthshire Canal Co., 152 Morgan, 61 Morrish, 44, 47 Morrison, 66, 108 New River Co., 102, 118, 136 Nicholson, 19, 21 North Aylesford Union, 101 North and South Shields Ferry Co., 24 North Staffordshire Ry. Co., 109, 110, 140, 148, 149 Oxford Canal Co., 114, 117 Palmer, 21, 135 Parrott, 69, 151 Phillips, 29 Pocock, 30 Pomfret, 158 Ponsonby, 62, 66, 79 Portmore (Earl of), 22 Postmaster-General, 75 Rhymney Ry. Co., 72 Ringwood, 9 Rochdale Waterworks, 155 Rodd, 9 St. Agnes, 158 St. Austell, 158 St. George's Union, 50 St. Giles', York, 71 St. Luke's Hospital, 36, 61, 69 St. Martin's-in-the-Fields, 30, 50 St. Martin's, Leicester, 75, 79 St. Mary Abbott's, Kensington, 44, 47, 48 St. Mary, Leicester, 19 St. Mary-the-Less, Durham, 52, 61, 62 St. Nicholas, Gloucester, 88, 107, 108 St. Pancras (Assessment Com- mittee of), 37, 45, 61, 64, 65, 68 St. Pancras (Vestry of), 86, 146 St. Peter- the- Great, Worcester, 153 R. v. Sedgley, 17 . - v. S. Field, 52, 56, 57 v. Shaw, 165 v. Shee, 77 - v. Sheffield Gas Co., 138, 139, 140, 141, 156 v. Shepherd, 57 - v. Sherard (Lord), 145 v. Sherford (or Sherwood), 72, 163 v. Skingle, 15 v. (Thos.), 87 v. Southampton Dock Co., 109,110, 146, 147, 154 - v. S. E. Ry. Co., 117, 130 v. Stainsby, 80 v. Sterry, 48 v. Stewart, 75, 80 v. Stockton and Darlington Ry. Co. , 145 v: Sudbury, 48 v. Temple, 75 v. Terrott, 52, 79 v. Tewkesbury, 39, 59 v. Thomas, 22 v. Todd, 158 v. Tomlinson, 84 v. Toms, 17, 165 v. Trent and Mersey Navigation Co. , 40, 58 v. Tynemouth, 51, 101, 103 v. Tyne Improvement Commis- sioners, 147, 149, 154 v. Vandewall, 85 v. Vange, 69 v. Verrall, 101 v. Waldo, 56 v. Wall Lynn, 57 - v. Watson, 43, 59 v. Weaver Navigation Trustees, 22 , Wells, 83, 84, 150 v. Westbrook, 96, 98 - v. West Derby, 75 v. West Middlesex Waterworks Co. , 63, 136, 138, 139, 140, 141, 155 D. Whaddon (Overseers of), 67 v. White, 9, 11 v. Williams, 168 v. Witney, 9 - r. Wok ing, 117 v. York (Mayor of), 36, 48 XVI TABLE OF CASES CITED. Rhymney Ry. Co., R. v., 72 Ringwood, R. v., 9 Roberts v. Aylesbury, 25 Rochdale Waterworks, R. v., 155 Rodd, R. v., 9 Rowls v. Gells, 36, 85, 158 Russell Institution v. St. Giles'-in-the- Fields, and St. George's, Bloomsbury, 30 ST. AGNES, R. v., 158 St. Austell, R. v., 158 St. George's Union, R. v., 50 St. Giles, York, R. v., 71 St. Leonard, Shoreditch, The case of the parish of, 9 St. Luke's Hospital, R. v., 36, 61, 69 St. Martin' s-in-the-Fields, R. v., 30, 50 St. Martin's, Leicester, R. v., 75, 79 St. Mary Abbott's, Kensington, R. v., 44, 47, 48 St. Mary, Leicester, R. v., 19 St. Mary-the-Less, Durham, R. v., 52, 61,62 St. Nicholas, Gloucester, E. v., 88, 107, 108 St. Pancras (Assessment Committee of), R. v., 37, 45, 61, 64, 65, 68 (Vestry of), R. ., 86, 146 St. Peter- the- Great, Worcester, R. v., 153 Salter's Load Sluice (Commissioners of), R. v., 36, 69 Scott v. St. Martin's-in-the-Fields, Westminster, 31 Scriven-with-Tentergate v. Fawcett, 163 Sedgeley, R. v., 17 Shareholders of Liverpool Library v. Liverpool (Mayor of), 30 Shaw, R. v., 165 Shee, R. v., 77 Sheffield Gas Co., R. v., 138, 139, 140, 141, 156 Shepherd, R. i'., 57, 75 Sheppard v. Bradford, 75 Sherard (Lord), R. v., 145 Sherford, R. v., or, Sherwood, R. r., 72, 163 Sir Anthony Earby's Case, 4, 9, 38, 81, 85 Skingle, R. v., 15 Skingle (Thos.). R. v., 87 Smith v. Seghill, 52, 54, 55 and Son v. Lambeth, 49, 85 v. Birmingham (Guardians of), 36, 75 v. St. Michael, Cambridge, 45, 50 S. E. Ry. Co. v. Dorking, 86, 120, 121, 122, 125, 132, 134, 136 , R. v., 117 South Wales Ry. Co. v. Swansea, 139, 140 Southampton Dock Co., R. v., 109, 110, 146, 147, 154 Spear v. Bodmin Union, 67 Stainsby, R. v., 80 Staley v. Castleton, 60, 86, 88, 114 Staunton v. Powell, 60 Sterry, R. v., 48 Stewart, R. v., 75, 80 Stockton and Darlington Ry. Co. , R. v. , 145 Stratton v. Metropolitan Board of Works, 152 Sudbury, R. v., 48 Sunderland (Overseers of), v. Sunder- land Union, 105 T. TALAROOCH Mining Co. v. St. Asaph Union, 93, 159 Temple, R. v., 75 Terrott, R. v., 52, 79 Tewkesbury, R, v., 39, 59 Theed v. Starkey, 36 Thomas, R. v., 22 Todd, R. v., 158 Tomlinson, R. v., 84 Toms, R. v., 17, 65 Trent and Mersey Navigation Co., R. v., 40, 58 Tyne Coal Co. r. Wallscnd, 57, 68 TABLE OF CASES CITED. xvu Tyne Improvement Commissioners, K. i\, or, Tyne Improvement Com- missioners v. Cherton, 147, 149, 154 Tyuemouth, R. v., 51, 101, 103 V. VAX Mining Co. v. Llanidloes, 159 Van.lewall, R. i\, 69 Vange, R. v., 69 Verrall, R. v., 101 W. WALDO, R. v., 56 Wall Lynn, R. v., 57 Walujsley v. Milne, 110 Warwick and Birmingham Canal Co. v. Birmingham, 153 Watkins v. Milton-next-Gravesend, 40, 42, 44, 47 Watson, R. v., 43, 59 Weaver Navigation Trustees, R. v. , 22 Wells, R. v., 83, 84, 150 West Derby, R. v., 75 West Middlesex Waterworks Co., R. v., 63, 136, 138, 139, 140, 141, 155 Westbrook, R. v., 96, 98 Whaddon (Overseers of), R. v., 67 Wheeler v. Birmington, 163 v. Metropolitan Board of Works, 152 White, R. v., 9, 11 Williams v. Llangeinwen, 163 v. Jones, 19, 43 R. v., 168 Witney, R. v., 9 Woking, R. v., 117 Worcester v. Droitwich, 90 Y. YORK (Mayor of), E. v., 36, 48 ZOOLOGICAL Society of London, Case of the, 30, 31 c THE PEINCIPLES OF EATING. INTRODUCTORY. THE raison d'etre of the law of Rating consists in the The need of a need of a methodical system of raising money for the relief of the poor. The foundation of existing law on the subject is the statute of the 43 Eliz. c. 2, which first outlined a system that has now been undergoing gradual development and modification, by judicial decisions and statutory enact- ments, for nearly three hundred years. Whether the enactment of such a statute as the 43 Eliz. f ose perhaps froin the c. 2 at that particular epoch was mainly due to the decay decay of the of the feudal system, under which the retainers and depen- dents of each feudal lord looked to him for support in times of need ; or to the confiscation of monastery lands in the reign of Henry VIII., and the dissolution of the monastic societies which had previously been liberal dispensers of alms; Voluntary or to some rapid increase in the numbers of the poor who required relief; it is not within the province of this work to compulsory system was inquire : suffice it to say, that, voluntary alms being found required- inadequate to the necessities and social conditions of the time, Th ^ 43 EIiz - it was enacted in 1-601, by the 43 Eliz. c. 2, as follows : " Be it enacted by the Authority of this present Parlia- The parish, ment, that the Churchwardens of every Parish, and four, arefu INTRODUCTORY. Overseers. Who and what is to be rated. three or two substantial Householders there, as shall be thought meet, haviog respect to the Proportion and Great- ness of the same Parish and Parishes, to be nominated yearly in Easter week, or within one month after Easter, under the Hand and Seal of two or more Justices of the Peace in the same County, whereof one to be of the Quorum, dwelling in or near the same Parish or Division where the same Parish doth lie, shall be called Overseers of the Poor of the same Parish : And they, or the greater Part of them, shall take order from Time to Time, by, and with the Consent of two or more such Justices of Peace as is afore- said, for setting to work the Children of all such whose Parents shall not by the said Churchwardens and Overseers, or the greater Part of them, be thought able to keep and maintain their Children : And also for setting to work all such Persons, married or unmarried, having no Means to maintain them, and use no ordinary and daily Trade of Life to get their Living by : And also to raise weekly or otherwise (by Tagai&Qn of every Inhabitant, Parson, Vicar, and other, land of every Occupier of Lands, Houses, Tithes impro- "iate, Propriations of Tithes, Coal-mines, or Saleable Underwoods in the said Parish, in such competent Sum. and Sums of Money as they shall think fit) a convenient Stock of Flax, Hemp, Wooll, Thread, Iron, and other necessary Ware and Stuff, to set the Poor on Work : And also compe- tent sums of Money for and towards the necessary Relief of the Lame, Impotent, Old, Blind, and such other among them being Poor, and not able to work, and also for the putting out of such Children to be Apprentices, to be gathered out of the same Parish, according to the Ability of the same Parish, and to do and execute all other Things as well for the disposing of the said Stock, as otherwise concerning the Premisses, as to them shall seem convenient : " &c. &c. Object of the The obvious intention of the statute was that all should statute. THE 43 ELIZ. c. 2. bear a share of the burden of supporting the poor, in propor- tion to their means. In order to effect this, it constitutes in How to be the first place a unit of area, namely the parish, and then pro- vides for each parish, officers clothed with the duty of raising the sums required in that parish for the relief of the poor, by taxing, in due proportion, every parishioner, (a) in his capa- city of inhabitant, and (&) in his capacity of occupier of lands, fec., that is, speaking generally, every holder of property, personal or real. In theory, the parish is still the unit of area, but in more Subsequent modern times it has generally been found convenient and desirable in practice to group together a number of neigh- bouring parishes under the name of a Union, for the purposes Unions, of Poor-law administration. The dictates of convenience have also given rise to a much Exemption of more important modification, namely the release of personal ^ r ' property, as such, from liability to rating. Owing to the difficulty of assessing personalty, the practice of doing so gradually fell into disuse in many parishes, and ultimately the exemption was legalised and made universal by statute in 1840. lui/i^4^^K 111 the first place then we find in the 43 Eliz. c. 2 that Parish the the parish is the unit of area ; this we should naturally call the parochial principle, but that expression is commonly used in a more limited sense, to signify the rule of apportionment, of which the fact that the parish is the unit of area requires the adoption, where the subject of rating extends into more than one parish. The second general rule is that real property is rateable, R ea i i) Ut not but personal property is not. This results from the 43 Eliz. c. 2, as modified by the 3 & 4 Viet. c. 89. After ascertaining what description of property is rateable, the next thing to be decided is, wjip is to be rated in respect of it the owner or the occupier and on what principles is the assessment to be calculated. Before answering these B 2 INTRODUCTORY. questions it will be well to read, in connection with the Act, The exposition the clear and authoritative exposition of it in Sir Anthony c. 2 in Sir Earby's Case at Lincoln Assizes, in 1633, 1 which is thus Anthony rpnnrtprl Earby's case. ^ported . " Upon complaint made to the Judges of Assize, by Sir Anthony Earby, and others the inhabitants of the town of Boston, upon an undue assessment made by the said town, and overseers of the poor, and levied by them, the same being, as was informed, undue and unequal, contrary to the statute of 43 Eliz. c. 2 for provision to be made for the poor, and contrary to former orders and directions given by the Judges of Assize unto them, to make due and equal as- sessments. Hereupon it was held, and so delivered for law, by Haughton and Croke, Justices of Assize, that such assess- ments ought to be made according to the visible estate of the inhabitants there, both real and personal, and that no in- habitant there is to be taxed by them to contribute to the relief of the poor, in regard of any estate he hath elsewhere, in any other town or place, but only in regard of the visible estate he hath in the town where he doth dwell, and not for any other land which he hath in any other place or town. And also by Hutton and Croke, Justices of Assize This hath been so resolved by all the Judges of England, upon a reference made to them, and upon conference by them had together, when they all did resolve that the assessment for relief of the poor ought to be made in such manner as before, according to their visible estates, real and personal, which they had and enjoyed in the town or place where they inhabited, and not having any regard to any other estate, which they had in any other place or town. Nota. That Sir Anthony Earby complained also, that he, The parish, the unit of Property not to be rated 1 2 Bulst. 354. SJK ANTHONY EARBY'S CASE. having divers tenants there which paid rent unto him, they twice over- then did charge his tenants by their assessments, and did rateable alfd charge himself also. not the lessor - Upon this Mr. Leving, being counsel for the town of Boston, did inform the Judges that they did tax Sir Anthony Earby for his estate, he having the rents ; and that such an assessment was made in the county of Leicester upon the lessor, and that by the order and direction of the Judges of Assize upon a complaint made unto them, and that they were not to tax the tenants who paid the rents. Hutton and Croke, Justices, made answer, That they did not remember any such case ; but they said, that by the words and meaning of the statute of 43 Eliz. c. 2, they are to assess the occupiers of the land, and not the lessor who received the rents, the occupier of the land being by law only to pay the assessment, unless it be specially provided for as to this payment between him. and his lessor, and so by this to be discharged of this payment of such assessments. The Judges did both of them agree to this, that by the law, the occupiers of the land are only to be charged, and this in regard of their possessions, and not the lessor, in regard of the rents which he received ; and so they declared, that it hath been also thus resolved by all the Judges of England : And so upon all this matter thus appearing to them. The Judges here made their order according to the several Rating to be resolutions, and this they did thus settle and order, for the equal ' better directions for the time to come : That they are to make their taxations and assessments well and duly, and in an equal manner, according to the visible estates, real and personal, of such inhabitants within their town, and also to tax and assess the occupiers of land within their town only, and not the lessors, with a special charge to them given to be careful in this for the future." Here we find that the person liable to be rated is the occu- INTRODUCTORY. The cardinal principles of rating are found in the 43 Eliz. c. 2, and Sir Anthony Earby's case. I. What rateable. II. Who rateable. pier and not the lessor ; that all persons are to be rated in an equal manner, that is, on the same scale ; and that the same property is not to be rated twice over. The principle that the parish is the unit of area is also emphasised by the judges in Sir Anthony Earby's case. They say that " no inhabitant there," i.e., in the parish under con- sideration, " is to be taxed to contribute to the relief of the poor in regard of any estate he hath elsewhere, in any other place or town." Subject only to the modern exemption of personal pro- perty from rateability, the principles contained in the 43 Eliz. c. 2, as expounded in Sir Anthony Earby's case, are the car- dinal principles of rating at the present day ; but the prac- tical application of those principles, especially in the case of some kinds of property which have but recently sprung into existence, such as railways, which extend through many parishes, and in that and other respects are of a different nature to anything that was contemplated in the early days of rating, has given rise to questions of considerable in- tricacy. In treating of the law of Rating in detail, it will be con- venient to arrange it under three heads. The first thing to be ascertained is, Wha^_prorjerty_is. liable_tp_ratiDgJ The intention of the 43 Eliz. c. 2 was, that everyone should contribute to the support of the poor in proportion to his means, whatever their nature ; but a very important exemption has arisen in the case of personal pro- perty, and there have also been some less important modifi- cations of the statute of Elizabeth which will call for notice under this head. Having determined what is, and what is not, of a rateable nature, it becomes necessary in the second place to ascertain with respect to any property which is of a rateable nature, Whether there is a person liable to be rated in respect of t ? That will be found to depend on whether there is an DIVISION OF THE SUBJECT. 'occupier' within the statute. Property may be in itself of a rateable nature, and yet there may be no person liable to be rated for it. It will be seen that in order to create liability '<> rating, there must be a beneficial occupation, beneficial, / that is, to some one, though not necessarily to the occupier. The occupier of a property, the outgoings of which exceed the receipts, is not rateable, because the occupation is not beneficial ; but if the receipts exceed the outgoings, then the occupier is rateable, although he may not derive any ipersonal profit from it ; for instance, a corporation in occupa- [tion of docks, though bound to maintain them for the benefit of the public, and to apply all profits to public purposes, are nevertheless rateable in respect of those profits. But where property is occupied by the Crown there is not an occupier within the statute, for the Crown not bein^ named in the 43 Eliz. c. 2 is not bound by it ; and there are certain classes of occupiers who have been exempted from rating by subse- quent statutes, on the ground of public expediency. After having found a property of a rateable nature and a III. person liable to be rated in respect of it, the question arises, How rateable - How is the assessment to be calculated ? The principle that rating is to be equal seems a simple one, but for the guidance of those whose duty it is to assess each of the various descriptions of rateable property in accordance with this principle, certain general rules have had to be settled, in the gradual development and definition of which, numerous questions, some of them of great nicety, have presented themselves for solution ; and the elucidation of these rules, and their bearing on different kinds of property, will occupy a comparatively large portion of this work. WHAT RATEABLE. [PART PART I. WHAT RATEABLE. REAL BUT NOT PERSONAL PRO- PERTY .... 8 TITHES . , . . . 12 COAL AND OTHER MINES . 17 SALEABLE UNDERWOODS, PLAN- TATIONS AND WOODS . . 18 RIGHTS OP SHOOTING, FISH- ING, &C. . . . .18 TURNPIKE AND OTHER TOLLS 19 EXEMPTION OF CHURCHES AND OTHER PLACES OF WORSHIP, AND DISCRETIONARY EX- EMPTION OF SUNDAY AND RAGGED SCHOOLS . . . EXEMPTION OF PROPERTY OCCUPIED BY LITERARY, SCIENTIFIC, AND ARTISTIC SOCIETIES . EXEMPTION OF STOREHOUSES VOLUNTEER 26 28 34 EXEMPTION OF LIGHTHOUSES, &c. 34 Inhabitant rateable for personalty under 43 Eliz. c. 2. Earliest authorities. REAL BUT NOT PERSONAL PROPERTY RATEABLE. THE 43 Eliz. c. 2 commands taxation (a) of every inhabit- ant, parson, vicar and other, and (6) of every occupier of lands, houses, tithes impropriate, propriations of tithes, coal mines or saleable underwoods in the parish. Two capacities are here designated in which a man should be liable to be rated. He might be rateable as an inhabitant of the parish, or as an occupier of property of one of the descriptions specified in the statute. In rating him as an occupier, the measure of his rateability is the annual value of the property occupied ; in rating him as an inhabitant, the intention of the statute was that he should be rated accord- ing to his ability, as measured by his visible estate in the parish, both real and personal. The earliest authorities unhesitatingly so interpret the I.] REAL PROPERTY ONLY. 9 statute. In the Resolutions of the Judges of Assize of 1633, 1 it is laid down, in answer to question 18, that the personal visible ability of the inhabitant may be taxed for the relief of the poor as well as the land f^fiad in Sir Anthony Earby's case, 3 in the same year, it was held that assessments ought to be made according to the visible estate of the inhabitants in the parish, both real and personal. However, it appears that in some parishes personal pro- Usage of some ' . . parishes not perty never was rated, and the custom ot abstaining irom to rate per- rating it gradually became very general. This was probably sonaty - owing to the difficulty and inconvenience experienced in attempting to assess it. The question of the rateability of personal property was from time to time brought before the Courts, and though they usually, at first at all events, declared without hesitation that personal property was legally rateable, there are not infrequent allusions in the reports to the fact that the custom of not rating it had become very general. In an exhaustive note to It. v. Rodd? the con- dition of the question is stated to be, that the balance of authority was in favour of the rateability of personal pro- pert} 7 , but general practice and usage against it. In the Decisions on latter part of the eighteenth century, however, the decisions, especially those in which Lord Mansfield was concerned, began to waver, and the Courts show a disposition to hesitate in affirming the rateability of personalty under the 43 Eliz. c. 2 apart from the usage hitherto prevailing in the parish in question. 4 1 Dalton's Country Justice, c. 73. 2 Wm. Bl. 709 ; R. v. Canterbury 2 2 Bulst. 354. (1769), 4 Burr. 2290 ; R. v. Ringwood 3 Cald. 149. (1775), Cowp. 326 ; R. v. Andover 4 The following cases bear on the (1777), Cowp. 550 ; R. v. lill(1777), rateability of personal property : Cowp. 613 ; R. v. Rodd (1782), Cald. Tlie case of the Parish of St. 147, 149 ; Atkins v. Da-vis (1783), Leonard, Shorcditch (1698), 2 Salk. Cald. 315; R. v. ffogg(l787), 1 T. R. 483; R. v. Barkincj (1706), 2 Lord 721 (per Buller, J.) ; R. v. White Raymond, 1280;^. v. mtney(I7M), (1792), 4 T. R. 771; R. v. Durslcy 10 WHAT RATEABLE. [PART Personalty ignored by P. A. Act of 1836. R. v. Lums- daine, 1839 Consequent action of Poor Law Commis- sioners. The Parochial Assessment Act of 1836 l seems to assume that the rateability of personalty was then obsolete, as after a preamble commencing, " Whereas it is desirable to establish one uniform mode of rating for the relief of the poor," the Act ma,kes not the slightest allusion to the rating of personal property, or of an inhabitant as such. Shortly after this Act, (in 1839,) a rate was appealed against 2 on the ground that it did not include stock-in- trade. It was argued that the Parochial Assessment Act, which gave a form in which rates should be allowed for the future, which form did not allow for a rate on any property except real property and corporeal hereditaments, was in- consistent with the continued rateability of personal property, and that it therefore abrogated pro tanto the 43 Eliz. c. 2. Lord Denman, C. J., in delivering judgment, admitted that it was not improbable that the legislature had intended to alter the law upon the subject of rating personal property, but said that if so, that intention could not be carried into effect but by an express enactment, nor could the Court regard the Parochial Assessment Act as having repealed the law as to the rateability of personalty by implication, and therefore the rate must be quashed. Upon this decision the Poor Law Commissioners published a circular calling the attention of the parish authorities to the fact that every rate which omitted to include stock-in- trade would be liable to be quashed if appealed against. This rendered it necessary for the legislature to determine whether the 43 Eliz. c. 2 should be amended, or the general usage of not rating personalty replaced by a strict compliance | with the Act as it stood. The legislature elected to amend the Act, being, no doubt, influenced by the inconvenience (1794), 6 T. K. 53 ; R. v. Darlington (1795), 6 T. R. 468 ; R. v. Amble- side (3812), 16 East, 380. 1 6 & 7 Will. IV. c. 96. 2 R. v. Lumsdaine, 8 L. J. M. C. 3 ; 10 A. & E. 157. I.] REAL PROPERTY ONLY. \\ of carrying it out, as to which it may be mentioned that Difficulty of it had been laid down by Yates, J., in 1769, that "if personal property be rateable, it is not to be done at random, and to leave the party rated to get off as he can : : but the officer making the rate must be able to support what he has done by evidence. And no personal property can be rated but the clear liquidated surplus after paying all his debts." l It would be impossible therefore for the overseers to properly .rate personal property unless they were able to make, and actually did make, an ex- amination of an inquisitorial description into the private affairs of individuals.-/ J ,.. , , ^J J^ /fg/- Accordingly in 1840^ was passed the 3 & 4 Viet. c. 89, Exemption by which (temporarily) enacted that " it shall not be lawful for c . 39. the overseers of any parish, township, or village, to tax any inhabitant thereof, as such inhabitant, in respect of his ability derived from the profits of stock-in-trade, or any other property, for or towards the relief of the poor." The Act / further provides that the liability of any parson or vicar or / of any occupier of any of the descriptions of property specified in the 43 Eliz. c. 2 is not to be affected by it. The_ effect therefore of the 3 & 4 yict._&-8t, (which has been from time to time up to the present continued by Expiring Laws Continuance Acts), is_to expunge the word " inhabitant " from . the 43 Eliz. c. 2, and no one now (unless an incumbent is an exception in respect of his tithes) incurs liability to be rated in any other capacity than that of an occupier. Subject then to certain exceptions, which will be specified General rule. hereafter, the general rule is that real property is rateable but that personal property is not. 2 1 Per Lord Kenyon, C. J. in R. v. taken only as an approximation to White, 4 T. R. 771. the truth. It is not easy to state the 2 The above statement must be general rule in such a way as to be at WHAT RATEABLE. [PART Hardship of rating realty alone. Whether it is consistent with the policy of the 43 Eliz. c. 2, which aimed at dividing the burden of supporting the poor fairly among all according to their respective means, that that burden should rest entirely on real to the exclusion of personal property, is a question into which it is not the pro- vince of this work to inquire ; but it may be pointed out that the hardship, if such it is, is far greater at the present time, when there is much more personalty than realty in the country, than it was in those earlier times when the custom of not rating personalty was first adopted by the parishes, for in those days there was comparatively little personalty in existence, and it was not then an extravagant supposition that a man's real property was at all events a rough test of his ability to contribute. TITHES. Tithes divided^ There are two_cjasss_j3LLtithes 7 ^ those that are due to the incumbent ;_and those that are due to some other into two Origin of this division. The policy of the monastic orders l was to acquire advow- sons whenever possible, and then to appropriate the benefices to the use of their own corporations. A portion of the tithes the appropriate rs bestowed by way of stipend on the priest once concise, and in all respects accurate. For instance, real pro- perty is as a rule rateable, but one description of real property, namely, incorporeal hereditaments, are not rateable ; and agnin to this exception there is a further exception, for tithes and sporting rights, which are in- corporeal hereditaments, are rateable, and so on. Again, though the profits of trade are personal property, it will be found that Railway Companies are virtually, though not technically, rated on their trade profits. See pages 99 and 100, infra. 1 Abridged from Stephen's Com- mentaries, Book IV., Part II., Chap. I., sec. 5. I.] TITHES. 13 whom they deputed to perform the spiritual duties. This portion was called the viea/rial tithes. The remaining por- Vicarial tithes. tion, which was reserved to the appropriators, was designated as tithes appropriate, or more shortly, tithes propriate. On Tithes appro- the dissolution of monasteries the tithes appropriate vested p in the Crown, and when they found their way, through the medium of Crown grants, into the hands of subjects who were laymen, they were called, by way of distinction, tithes Tithes impro- impmpriate. An occupier of tithes appropriate or impropriate is clearly Occupier of rateable under the 43 Eliz. c. 2, the words of which are, " by t^^*"* taxation of every inhabitant, parson, vicar or other, and of incumbency rateable under every occupier of lands, houses, tithes impropriate or pro- 43 Eliz. c. 2. priations of tithes, coal mines or saleable underwoods in the said parish," &c. But vicarial tithes not being mentioned in the occupation clause, it would seem to follow, on the principle of expressid unius exclusio est alterius, that an incumbent is not rateable for the vicarial tithes qua 'occupier,' and that if rateable at Tithes vicarial ,, . , , , . , , . rateable if at all, it must be under the inhabitant clause. As to that it all under the seems a plausible supposition that the parson and vicar were Clause 1 ** 11 * mentioned in the inhabitant clause merely to dispel any doubt as to their liability to be rated with the other in- habitants, which might arise from the words of Magna Charta, * " quod ecclesia Anglicana libera sit." l But if the statute con- p Vv ^:w^ templated the rating of tithes vicarial, only as forming part of ^ the ability of the incumbent in his capacity of ' inhabitant,' there would seem to be no logical justification for assessing him on the hard and fast rules as to the value of the occu- pation, by which those who are rateable as ' occupiers ' are assessed. And if it be only in the capacity of ' inhabitant ' that the incumbent is rateable in respect of his tithes, it See R. v. Hopkins, 3 Keb. 255. 14 WHAT RATEABLE. [PART Rating of vicarial tithes in practice. Authorities on the rateability of vicarial tithes. Resolutions of 1633. 1709. R. v. Bartlett. seems a hardship that he should be rated for them now that the rating of other inhabitants, as such, has been discon- tinued. 1 However, vicarial tithes have always been regarded as rateable, and it seems to have been not uncommonly con- sidered that it was in the capacity of 'occupier' that the parson was rateable for his tithes. The first record of the question of the rateability of a parson for his tithes having been raised is in the Resolutions of the Judges of Assizes, 1633, 2 where are to be found the following Question and Resolution in answer to it : Qu. 33. " What proportion shall Parsonages or Tithes bear to the Taxation of the Poor of the Parish ? " Resol. " The Parson or Vicar Presentative shall bear according to the reasonable Value of his Parsonage, having consideration to the just Deductions." The form of the question implies that those who framed it regarded tithes in the hands of the parson as rateable, but opinions may differ as to the inference to be drawn from the answer. In 1709 it was held, in R. v. Bartlett? that, "A parson who lets his tithes to the parishioners may be taxed upon the poor-rate; for the letting is but an agreement with the parishioners to retain the tithes, and the parson here has a modus for his tithes ; though it was objected that 1 In Nolan's Poor Law, I. 126, the following reason is given for the rating of tithes vicarial : "Tithes in the hands of the efficient incumbent, whether parson or vicar, are not expressly mentioned in the statute. But as it directs that the ' parson or vicar ' shall be taxed, it must intend that it shall be for that property which constitutes the chief subject of their occupancy, tithes being deemed a tenement by our law." 2 Dalton's Country Justice, edition of 1727, c. 73, p. 237. 3 MS. Cases, Pasch. 7 Aime ; 16 Viner's Abridgement, 427. I.] TITHES. 15 the parishioners were occupiers, and so the parson not taxable." The contention that the parson ought not to be rated, because in virtue of the letting the parishioners had become the occupiers, admits by implication that but for the letting the parson would have been the occupier of the tithes and as such rateable for them. R. v. Shingle, 1 decided in 1718, is thus reported : " The 1718. 43 Eliz. c. 2 charges lands, tenements, tithes, &c., to the poor's- rate. By a private statute for erecting workhouses in Col- chester, the poor are provided for in another manner, and the occupiers of lands and tenements are made chargeable : and after a rate an appeal is given to the sessions. The defendant was parson and rated for his tithes, and appeals ; and because the word tithes was not in the Act of Parlia- ment, which the sessions looked upon as an absolute repeal of the 43 Eliz. quoad Colchester, therefore they discharge him. Et per curiam. He ought not to be exempted but by express words, being liable before. Here he is an occu- pier of a tenement, for tithes are a tenement. Wherefore the order of sessions was quashed." The fact that the 43 Eliz. c. 2 mentions not tithes generally, but only tithes propriate and propriations of tithes, i.e., the tithes that are not in the hands of the parson, is here entirely ignored. In R. v. Lambeth, 12 which is somewhat similar to R. v. 1722. Bartlett, supra, it is said that the parson remains chargeable ' v ' as occupier of the tithe although he receives a composition or a modus in lieu. In Dalton's Country Justice 3 it is laid down that " Every 1727. clergyman is to be rated for his glebe and tithes according to country their yearly value, so long as they are in his own occupation, Justice. 1 1 Str. 100. 3 Edition of 1727, p. 254. - 1 Str. 525. 1G WHAT RATEABLE. [PART 1789. R, v. Carlyon. 1814. Nolan. 1836. 6 & 7 Will. IV, c. 71. 1840. 3 & 4 Viet, c. 89. Summary. A composition in lieu of tithe rateable as the tithe itself. because the statute charges every occupier of tithes, &c., and the clergy are continued " (sic, but query contained) " under those general words, unless particularly exempted." This is another link in the chain of authorities which have established the rateability of an incumbent for his tithes, but we must take exception to the statement that the statute charges "every" occupier of tithes. In E. v. Carlyon, 1 decided in 1789, Lord Kenyon, C. J., says that " oblations and other offerings which ^constitute the rectorial or vicarial dues are rateable." In Nolan's Poor Law, 2 ed. 1814, we find it stated that "not only parsonage houses and glebe lands are rateable in the hands of the occupier, but both rectorial and vicarial tithes have been always deemed so, whether due by common law or by custom." The Tithe Commutation Act of 1836 provides 3 that every rentcharge payable instead of tithes shall be subject to all parliamentary, parochial and county and other rates, charges and assessments, in like manner as the tithes commuted for . such rentcharge have heretofore been subject. In the statute 4 which repealed, in 1840, the liability of inhabitants as such to be rated, there is an express exception "that nothing in this Act contained shall in anywise affect the liability of any parson or vicar," &c. Vicarial tithes are now rated like other subjects of rateable occupation, and the present practice is supported by the current of authority, and by statutory recognition. It was held before the Tithe Commutation Act, that a composition, modus, assessment or pension, payable to the parson in lieu of tithes was rateable in like manner as the i tithes for which it may have been substituted, and by that 1 3 T. R. 385. 2 Vol. I., p. 126. 6 & 7 Will. IV. c. 71, sec. 69. 3 & 4 Viet. c. 89. I.] MINES. 17 Act it is expressly provided that every rentcharge payable instead of tithes shall be rateable in like manner as the tithes commuted for such rentcharge had been rateable. l COAL AND OTHER MINES. All mjjaesjare. now. rateable. The 43 Eliz. c. 2 names as rateable, not mines in general, The only mines but, "coal mines" alone. Therefore in accordance with the the 43 Eliz. well known rule of construction expressio unius exclusio est oal alterius, all mines other than coal mines were exempt from rateability under that statute. 2 But the exemption was removed by the Rating Act of but all mines 1874, 3 which provided 4 that mines of every kind not rateable since mentioned in the 43 Eliz. c. 2 should thenceforth be rateable. The exemption of mines other than coal mines did not Quarries have include quarries, so quarries have always been rateable under rateable. 6 the head of ' lands.' Whether any particular excavation in the earth was a mine or a quarry was determined by the .mode in which it was worked, not by the substance obtained from it. The term mine was therefore not limited to cases where metal was obtained, but there might be a clay mine or a stone mine. 5 1 Lowndes v. Home, 2 Win. Bl. M. C. 61 ; 2 B. & Ad. 65 ; R. v. Bret- 1252 ; R. v. Toms, Dongl. 401 ; Rann tell, 1 L. J. M. C. 46 ; 3 B. & Ad. 424. v. Pickin, Cald. 196 ; R. v. Boldcro, 3 37 & 38 Viet. c. 54. 4 B. & C. 467 ; 6 Dow. & Ry. 557. 4 By sec. 3. 2 Morgan v. Crawshay, L. R. 5 * R, v. Dunsford, 4 L. J. M. C. 59 ; H. L. 304 ; 40 L. J. M. C. 202 ; Lead 2 A. & E. 568 ; R. v. Brettcll, 3 B. & Co. v. Richardson, 3 Burr. 1341 ; 1 Ad. 424 ; R. v. SedgUy, 1 L. J. M. Wm. Bl. 389 ; R. v. Cunningliam, 5 C. 46 ; 2 B. & Ad. 65. East 478 ; R. v. Sedgley, 9 L. J. (0. S. ) 18 WHAT RATEABLE. [PART Saleable underwoods rateable under the 43 Eliz. c. 2. Plantations and woods rateable under the Rating Act of 1874. SALEABLE UNDERWOODS, PLANTATIONS AND WOODS. The rule of construction which constituted the mention of coal mines in the 43 Eliz. c. 2 an exemption by implication of all other mines, gave to the mention in that statute of " saleable underwoods " the effect of an exemption of all wood -lands not used for the growth of saleable under- woods. The latter exemption was, like the former, abolished by the Rating Act of 1874, which extended the Poor-rate Acts to "land used for a plantation or a wood or for the growth of saleable underwood and not subject to any right of common." " Land used for the growth of saleable underwoods " is a technically better expression than " saleable underwoods," the phrase of the 43 Eliz. c. 2, though practically they both amount to the same thing. Sporting rights. If incident to the occupation, rateable in- directly, as enhancing its value. If severed from the occupation rateable under the Rating Act of 1874. RIGHTS OF SHOOTING, FISHING, ETC. The rights of shooting, fishing, &c., are sometimes incident to the occupation of land, and sometimes are reserved to a person other than the occupier. In the former case they are rateable indirectly, for to the extent to which they enhance the value of the occupation, the rateability of the occupier is increased in respect of them. In the latter case, namely, when severed from the land, such a right AVRS formerly not rateable, because it is merely an incorporeal hereditament, 1 but now by the Rating Act, . l Hilton and Walkcrfidd v. Bowes, L. R. 1 Q. B. 359 ; 35 L. J. M. C. 137 ; Eyton v. Mold, 6 Q. B. D. 13 ; 50 L. J. M. C. 39. I.] TOLLS. 19 1874-, 1 the Poor-rate Acts are extended to (inter alia) " rights of fowling, of shooting, of taking or killing game or rabbits, and of fishing, when severed from the occupation of the land." TUENPIKE AND OTHER TOLLS. Tolls are not rateable per se. 2 for they do not come under Toils not any of the descriptions of property upon which rateability is ' e per se> imposed by the 43 Eliz. c. 2. Although tolls are not directly rateable, qua tolls, they are but in some in some, but not all cases, rateable indirectly, viz. when thej_ form part of the profits of the occupation of land. Bayley, J., ^directl as - i - - -^ Jb - ; -- $3 ***<*%_ enhancing the says in R. v. Kingsurinford, 3 " Tolls eo nomine are not rate- value of the able ; but if the subject-matter out of which the tolls arise, be one mentioned in the statute of Elizabeth as the object of rate, then that may be rated by name, and the tolls which constitute its profi ts may be thus made to contribute to the _ relief of the poor." Turnpike tolls however are not rateable even indirectly. 4 Whether in any particular instance tolls are indirectly rateable as enhancing the value of the occupation of a rate- able subject, depends, not on any considerations peculiar to tolls themselves, but on general principles. It will however be convenient to refer shortly to the different kinds of tolls which have been dealt with in the numerous cases to be 1 37 & 38 Viet. c. 54, s. 3, sub- K. v. Macdonald, 12 East 324 ; R. v. s. 2. Eyre, 12 East 416. 2 R. v. Nicholson, 12 East 330 ; 3 7 B. & C. 236 ; s.c. R. v. Dudley R. v. Milton, 3 B. & Aid. 112; Wil- Canal Co., 6 L. J. (0. S.) M. C. 3. liams v. Jones, 12 East 346 ; R. v. 4 See page 26 infra. St. Mary, Leicester, 6 M. & S. 400 ; c 2 20 WHAT RATEABLE. [PART Conditions under which tolls are indirectly rateable. Illustrations. found in the reports ; for instance, those of markets, har- bours, lighthouses and ferries. It will be found that the indirect rateability of any particular tolls (with the exception only of turnpike tolls which are exempted by statute l ), depends on the" following conditions : To make them rateable indirectly ; 1st. The person in receipt of the tolls must be an ' occupier ' of land within the 43 Eliz. c. 2. 2nd. The tolls must be paid strictly for the use of the land. For example, if certain persons are authorised to improve, in order to make navigable, the channel of a river, and to take tolls, but their interest in the bed of the river amounts only to an easement, the tolls are not rateable, because the first condition is not satisfied. 2 Again if the proprietor of a lighthouse is entitled, by Crown grant, or by statute, to levy tolls on every ship passing by the lighthouse, those tolls are not rateable, for they are not, strictly speaking, the produce of the land ; they arise from a collateral obligation, 3 and as to ships which pass in the daytime, obviously are not paid for the use of the light. So with regard to the Drainage Rates levied by the Metropolitan Board of Works to defray the expenses of constructing and maintaining sewers, the liability to pay them attaches to property within the metro- polis irrespective of any use the inhabitants or occupiers make of the sewers, and they therefore do not satisfy the second condition. 4 The two tests above indicated will be further illustrated by the cases collected under the following heads, but it must be remembered that rateability depends on the facts of each case taken in conjunction with general principles, and not 1 3 Geo. IV. c. 126, s. 51, and 4 Geo. IV. c. 95, s. 31. 2 R. v. Mersey and Irwell Naviga- tion Co., 7 L. J. (0. S.) M. C. 70 ; 9 B. & C. 95. a Jt. v. Coke, 5 L. J. (0. S.) M. C. 8 ; 5 B. & C. 797 ; R. v. Foivlce, 5 B. & C. 814 n. 4 R. v. Metropolitan Board of Works, L. R. 4 Q. B. 15 ; 38 L. J. M. C. 24. L] TOLLS. 21 on the particular description of tolls in question. Light- house tolls are as a rule not rateable, and canal tolls are as a rule rateable, but this does not found a rule that tolls are not rateable because they are lighthouse tolls, or that they are rateable because they are canal tolls, it only shows that the conditions under which lighthouse tolls are received are as a rule similar inter se, and that the same may be said with regard to canal tolls. CANAL TOLLS. A canal is land covered with water, and Remarks on under ordinary circumstances the bed of the canal is in the O f tolls n occupation of the persons who receive the tolls, and the tolls Canal are paid for the use of the canal, and are therefore to be taken into consideration as profits arising from, and therefore enhancing the value of, the occupation of the land, ancLso are indirectly rateable. 1 The tolls earned by a railway are also clearly rateable in the same manner. NAVIGATION DUES. By navigation dues we usually mean Navigation the tolls charged by those who have improved j in order to ies ' render navigable, a naturally existing waterway, while the expression canal tolls usually refers to tolls charged upon a waterway that is entirely of artificial construction. . The ooly way in which the distinction bears upon the rateability of the tolls, is that from the nature of a canal it is usually the case that those in receipt of the tolls are ' occupiers^lfor the constructors of a canal have usually acquired thejDwner- ship of the land which forms its bed ; but the undertakers of the improvement of a river are commonly persons who, while leaving the ownership and occupation of the soil with those to whom they originally belonged, have acquired merely the rights necessary to enable them to improve and conduct the navigation, and which may probably amount only to an 1 R. v. Milton, 3 B. & Aid. 112 ; R. rateable per se, were overruled by R, v. Palmer, 1 B. k C. 546. Some old v. Nicholson, 12 East 330. cases in which canal tolls were held 22 WHAT RATEABLE. [PART Lighthouse tolls or dues. Dock and harbour dues. easement. Where such is the case, the navigation dues are not indirectly rateable, because those who receive them are not ' occupiers ' within the statute. 1 Where however the soil of the bed of the river is vested in the undertakers of the navigation, the navigation dues, or whatever they may be called, are indirectly rateable, for the undertakers are occupiers of land, and the dues are the profits of the land. 2 LIGHTHOUSE TOLLS OR DUES. Since it has been decided that tolls per se are not rateable, attempts have been made, but without success, to rate lighthouse tolls in the hands of private persons 3 indirectly as rjrpfits of the occupation of the lighthouse. In R. v. Coke, 4 where the King had granted to Lord Lovell and his executors, &c., for sixty years, a certain lighthouse, with authority to maintain the lights, and also the right of charging tolls on passing ships, it was held that those tolls arose from a privilege and were not appurtenant to, so as to be profits of, the occupation. This case was shortly followed by R. v. Fowke, 5 where Bayley, J., in quashing a rate based as to amount on the value of the tolls of the lighthouse, said, " The tolls do not arise from the building, nor from anything of necessity connected with it." DOCK AND HARBOUR DUES. The indirect rateability of these, like other tolls, depends on whether both the above- 1 R. v. Mersey and Irwell Naviga- tion Co., 7 L. J. (O. S.) M. C. 70 ; 9 B. & C. 95 ; R. v. Thomas, 9 B. & C. 139 ; R. v. Aireand C alder Navigation Co., 8 L. J. (0. S.) M. C. 9 ; 9 B. & C. 820 ; R. v. Aire and Colder Naviga- tion Co. (2nd case), 1 L. J. M. C. 24 ; 3 B. & Ad. 139 ; R. v. Weaver Naviga- tion Trustees, 5 L. J. (0. S.) M. C. 102 ; 7 B. & C. 70 u. But such under- takers, though not rateable for the general navigation dues would be rate- able for the dues of a lock or a sluice constructed ou land purchased by them. * R. v. Portmore (Earl of), 1 B. & C. 551 ; Bath River Navigation "Co. v. Willis, 11 A. & E. 463 ; R. v. London (Mayor of), 4 T. K. 21. See also R. v. Bristol Dock Co., 10 L. J. M. C. 105 ; 1 Q. B. 535 ; and R. v. Kingston-upon-Hull Dock Co., 14 L. J. M. C. 114 ; 7 Q. B. 2. 3 As to the tolls of lighthouses vested in the Trinity House, see page 34 infra. 4 5L. J. (0. S.)M. C. 8; 5 B. & C. 797. 5 5 B. & C. 814 n. I.] TOLLS. 23 mentioned conditions are satisfied. In R. v. Kingston- upon-Rull Dock Co.} a company who were occupiers of the soil of certain docks were authorised by statute to take dues from all ships entering the port within which the docks were situated. As the port extended beyond the docks ships might become liable to these dues without coming on or using the property of the company, and it was held that the dues payable by such ships were not indirectly rateable, because not_ satisfying the condition of being paid strictly for the use of land. Lord Denman, C. J., said, "The toll given to the company, and which such ships are obliged to pay, is doubtless given in respect of the company having made those docks, but still it does not arise from the use of the docks, nor is it earned in them." But the dues received by the company from ships which did come into the docks themselves, and so used the property of the company, were held indirectly rateable as profits arising from the occupation. In Lewis v. Stva,7isea z the tolls in question, and which Lewis v. were held not rateable, were payable to the corporation of R^ Swansea in respect of the landing and shipping of goods Durham - at the quays in Swansea harbour. The corporation were in fact occupiers of some of the quays, but they would have been equally entitled to the tolls without any such occupa- tion, and therefore the tolls could not be regarded as profits of the occupation. In R. v. Durham (Earl of) 3 tolls pay- able by ships using a port were held indirectly rateable on the ground that, on the facts there existing, they were paid for the use of the soil and were not tolls in gross. These two cases were decided by the same principle, and the tolls were indirectly laid under contribution to the rates in the one case, while they escaped in the other, because the facts were in the opinion of the Court different. 1 14 L. J. M. C. 114 ; 7 Q. B. 2. 3 28 L. J. M. C. 232 ; s. c. Durham 2 25 L. J. M. C. 33 ; 6 E. & B. (Earl of) v. Bishapwearmouth, 2 E. & 508. E. 230. WHAT RATEABLE. [PAKT Commis- sioners of New Shoreham Harbour v. Lancing. Ferry tolls. Market tolls and stallage. In The Commissioners of Neiv Shoreham Harbour v. Lancing l tolls were payable by statute on ships entering the harbour. The Commissioners were not, under their Act, occupiers of the soil of the entrance^ but had merely an easement in it. So far, therefore, the first condition of rate- ability was not satisfied. It appeared however that they were in occupation of soil on which stood piers erected for the purpose of confining the channel ; but as the tolls were not incident to, arid would not have passed with, the occupa- tion of these piers, the Court held that they did not come under contribution as being profits of the occupation. FERRY TOLLS. In R. v. North and South Shields Ferry Co.? where the ferry in question was over the river Tyiie, the Ferry Company were in occupation of the landing places on each side, but not of the land covered with water, over which the ferry boats passed. Lord Campbell, C. J., said that the use of the landing places was only a minor part of the consideration for the tolls, for they were earned mainly by the large capital employed in the boats, and by the transit of the boats, not over the land in the occupation of the com- pany, but, over a tidal river : and further that this was not like the case of a canal company who occupy the whole line of land covered with water, over which the transit takes place, for here the landing places were the only land occu- pied by the company, and the tolls were not strictly for the . use of them, and were not therefore indirectly rateable as profits of their occupation. It appears from this, that if the Ferry Company had owned the bed of the river as well as the landing places, the tolls would have been indirectly rateable as profits of the occu- pation. MARKET TOLLS AND STALLAGE. Market tolls payable in 1 L. R. 5 Q. B. 489 ; 89 L, J. M. C. 121. 2 22 L. J. M. C. 9; 1 E. &B. 140. L] TOLLS. 25 obedience to the franchise of the market, whether a pre- scriptive or statutory one, on admission to the market or on goods sold in it, do not satisfy the conditions of indirect rate- ability, for they are tolls in gross and are not paid for the use of land ; but stallage, i. e., the toll paid for the use of a stall in the market, is_indirectly rateable, for it is paid for the occupation of the soil by a stall. 1 The criterion is whether the toll is paid for the use of the soil, or merely in obedience to the franchise of the market. Where a toll paid on admittance to a market was not under the circumstances existing referable to a franchise, the Court held that it must consequently be paid for the user of the land, and therefore was to be indirectly rated among the profits of the occupation. 2 In London (Mayor of) v. Greenwich Union, lairage r dues, levied on the consignees of foreign cattle landed at Deptfurd Market, were held rateable indirectly, as being charges for the use and occupation of the soil. The case is not yet fully reported, but it appears 3 that the animals were allowed to remain in the lair a certain number of days, that no consignee had a right to the use of any particular lair, and that a charge was made, of so much per head of cattle landed, for wharfage, lairage, market dues, &c TURNPIKE TOLLS. There is one description of tolls, which are in no circum- Turnpike tolls stances rateable, even indirectly, namely turnpike tolls, which houses statu- 1 E. v. Bell, 5 M. & S. 221 ; Paul, Covent Garden, 51 L. J. 11. C. Roberts \. Aylesbury, 22 L. J. M. C. 41 ; 45 L. T. K S. 616. 34 ; 17 J. P. 55 ; London (Mayor of) 2 Percy v. Ashford Union, 34 L. T. v. St. Sepulchre, L. K. 7 Q. B. 333 N. S. 579. n. ; 41 L. J. M. C. 109 n. ; R. v. 3 See 47 J. P. 148 and L. T. Mar. Oasswell, L. R. 7 Q. B. 328 ; 41 L. J. 3, 1883 p. 315. M. C. 108 ; Bedford (Duke of) v. St. 26 WHAT RATEABLE. [PART tory exemp- tion. 3 Geo. IV. c. 126, s. 51. 4 Geo. IV. c. 95, s. 31. are exempt by statute, and the exemption extends toll-houses themselves. It is provided by the 51st section of the Turnpike Act of 1822, 1 that " no tolls to be taken at any gate erected, or to be erected by the trustees or commissioners of any turnpike road, nor toll-house erected, or to be erected, for the purpose of collecting the same, nor any person in respect of such tolls or toll-house, shall be rated or assessed of any poor's rates, or any other public or parochial levy whatsoever." The pro- visions of this section were slightly extended by the 31st section of the Turnpike Act of the following year, the 4 Geo. IV. c. 95, which provided that " no tolls or penalties for over- weight to be taken at any house or weighing machine erected, or to be erected, or adjoining to any turnpike road, nor any person whatsoever in respect of such tolls or penalties, or any house or building as aforesaid, shall be rated or assessed towards the payment of any poor's rates, or any other public or parochial rate, or levy whatsoever." As to what roads are turnpikes within these Acts, see R. v. Great Dover Street Road Trustees? 3 & 4 Will. IV. c. 30. EXEMPTION OF CHURCHES AND OTHER PLACES OF WORSHIP AND DISCRETIONARY^ EXEMPTION OF SUNDAY AND RAGGED SCHOOLS. Churches and other places of public religious worship are exempted by the 3 & 4 Will. IV. c. 30, which enacted " that from and after the 1st day of October, 1833, no person shall be rated or shall be liable to be rated to or to pay any church or poor rates or cesses, for or in respect of any 1 3 Geo. IV. c. 126. 5 6 L. J. M. C. 25 ; 5 A. & E. 692. I.] PLACES OF WORSHIP. 27 churches, district churches, chapels, meeting-houses, or premises or such part thereof as shall be exclusively Premises appropriated to public religious worship, and which (other appropriated than churches, district churches, and episcopal chapels of the Established Church) shall be duly certified for the per- exempt. formance of such religious worship according to the pro- vision of any Act or Acts now in force: Provided always, that no person or persons shall be hereby exempted from any such rates or cesses for or in respect of any parts of such churches, district churches, chapels, meeting-houses, or other premises which are not so exclusively appropriated, and from which parts not so exclusively appropriated such person or persons shall receive any rent or rents, or shall derive profit or advantage. Provided always, that no person or persons shall be liable The exemption . , , , .. . not lost by to any such rates or cesses because the said churches, district their being churches, chapels, meeting-houses, or other premises, or any Sumiay^infant, vestry-rooms belonging thereto, or any part thereof, may be or cni * nt y used for Sunday or Infant Schools, or for the charitable education of the poor." SUNDAY AND RAGGED SCHOOLS. The rating authorities may if they choose, but are not Discretionary .. - . exemption of obliged to, exempt Sunday and ragged schools. Sunday and The 32 & 33 Viet. c. 40 enacts that " from and after the 30th day of September, 1869, every authority having power by 32 & 33 V ICt. C. "ii/ to impose or levy any rate upon the occupier of any building, or part of a building, used exclusively as a Sunday school or ragged school, may exempt such building, or part of a build- ing, from any rate for any purpose whatever which such authority has power to impose or levy." The Act goes on to provide that nothing in it contained " shall prejudice the right of exemption from rating of Sunday or infant schools, or for the charitable education of the poor in 28 WHAT RATEABLE. [PART Definition of Sunday school. Definition of Ragged school. The exemption discretionary. any churches, district churches, chapels, meeting-houses, or other premises, or any vestry rooms belonging thereto, or any part thereof," given by the 3 & 4 Will. IV. c. 30 (see supra, page 26), and it defines a " Sunday school," as, " any school used for giving religious education gratuitously to children and young persons on Sundays, and on week days for the holding of classes and meetings in furtherance of the same object, and without pecuniary profit being derived therefrom..; " and a \" Ragged school," as, "any school used for the gratuitous education of children and young persons of the poorest classes, and for the holding of classes and meetings in furtherance of the same object, and without any pecuniary benefit being derived therefrom except to the teacher or teachers employed." It was contended in Bell v. Crane 1 that " may exempt " should be construed as " must exempt," having regard to the preamble of the Act, which is as follows : " Whereas for many years and until lately, 2 buildings used as Sunday and ragged schools for gratuitous education, enjoyed an exemption from poor and other rates, and it is expedient that they should be exempted from such liability Be it therefore enacted," &c. But the Court held that the phrase ^_rnay_. xenipt " was intended to give, and does give, a discretion. Literary, EXEMPTION OF PROPERTY OCCUPIED BY LITERARY, SCIENTIFIC AND ARTISTIC SOCIETIES. ) The 6 & 7 Viet. c. 36 enacted (sec. 1) that " from and after d / the lst da ? of October. 1843 > no person or persons shall be societies. / assessed or rated, or liable to be assessed or rated, or liable to i pay, to any county, borough, parochial, or other local rates or 1 L. R. 8 Q. B. 481 ; 42 L. J. M. C. 122. - i. e. until the Mersey Dock cases, about four years previous to this Act. I.] LITERARY SOCIETIES, ETC. 9 cesses in respect of any land, houses, or buildings, or parts of houses or buildings, belonging to any society Instituted f<>r jmrposes of science, literature, or the fine arts exclusively, either as tenant or owner, and occupied by it for the transac- tion of its business, and for carrying into effect its purposes, providedjbhat such society shall be supported wholly or in pa ft l>y annual voluntary contributions, and shall not, and by its laws may not, make any dividend, gift, division or bonus in money into or between any of its members^ and pro- vided also that such society shall obtain the certificate of the barrister-at-law, or Lord Advocate, as hereinafter mentioned." Subsequent sections provide that any society claiming to Procedure for be exempted under this Act is to submit its rules, in England exemption, to the barrister for the time being appointed to certify the rules of friendly societies, and in Scotland to the Lord Advo- cate, and must obtain from him, as a condition precedent to exemption, a certificate that the society is entitled to the benefit of the Act, 1 but that if such certificate be refused, the society may appeal to the Quarter Sessions. 2 The certificate however if granted is not conclusive proof Certificate not T^, . T 7^ o ,1 ^ conclusive, of a right to exemption. In M. v. Philhps? the Court of Queen's Bench, holding that the facts did not sustain the certificate which had been granted to a spcjety called the -** V* J^-V" '^ Birmingham News Room, granted a mandamus commanding the justices to issue their distress warrant for the recovery of the sum at which the society's premises had been rated. "Any society instituted for 2wposes of science, literature or the fine arts exclusively" It will be convenient first to consider what societies have been held to come within these words, secondly to point out 1 Sections 25. 3 17 L, J. M. C. 83 ; 8 Q. B. 745. 2 Section 6. 30 WHAT RATEABLE. [PART What societies within the Act. Examples. Societies not within the Act. Primary and not merely that the promotion of science, literature or the fine arts must be the primary and not merely a secondary object of the society, and thirdly to show the force of the word " exclusively." 1. What societies do and what do not fall within these words. The following Societies have been held not within the Act : The Religious Tract Society, l which it was argued came under the head of literary societies, but this contention was unsuccessful, for its purpose is the advancement, not of literature in general, but of religion ; the Baptist Missionary Society ; 2 a Society for the promotion of education in general and the elucidation of the art of teaching ; 3 the United Ser- vice Institution ; 4 the Zoological Society of London ; 5 and the Russell Institution in Bloomsbury. 6 But the follow- ing societies have been held within the Act : A Society for the purpose of creating and maintaining a library for the use of members and subscribers ; 7 a Society the main purpose of which is to provide lectures on literature and science and ex- hibitions of paintings ; 8 the Linnaean Society for the cultiva- tion of Natural History ; 9 and the Botanic Gardens of the University of Oxford. 10 2. The promotion of science, literature or the fine arts 1 R. v. Jones, 15 L. J. M. C. 29 ; 8Q. B. 719. 2 R. v. Baptist Missionary Society, 18 L. J. M. C. 194 ; 10 Q. B. 884. 3 R. v. Pocock, 15 L. J. M. C. 132 ; 8 Q. B. 729. 4 R. v. Cockburn and others, 16 Q. B. 480 ; s. c. R. v. St. Martin's-in- ihe-Fields, 21 L. J. M. C. 53. * Marylebone v. Zoological Society of London, 23 L. J. M. C. 139 ; 3 E. & B. 807. 6 Russell Institution v. St. Giles-in- the-Fields, and St. George's, Blooms- bury, 23 L. J. M. C. 65; 3 E. & B. 416. 7 Birmingham (Churchwardens of) v. Shaw, 10 Q. B. 868 ; s.c. Re Birmingham New Library, 18 L. J. M. C. 89 ; Clarendon (Earl of) v. St. James 1 , Westminster, 20 L. J. M. C. 213; 10 C. B. 806; Liverpool Library v. Liverpool (Mayor of), 29 L. J. M. C. 221 ; 5 H. & N. 526. 8 R. v. Manchester, 20 L. J. M. C. 113 ; 16 Q. B. 449. 9 Linna-an Society v. St. Anne's, Westminster, 23 L. J. M. C. 148 ; 3 E. & B. 793. 10 Re Oxford Poor Rate, 27 L. J. M. C. 33 ; 8 E. & B. 184. I.] LITERARY SOCIETIES, ETC. 31 must be the primary, and not merely a secondary object of the secondary society. The premises of a society called the Manchester Concert Hall, were held rateable on the ground that the promotion of the fine arts was not the primary, but only an incidental object of the society, the primary object being the gratification of its members; 1 the Institution of Civil Engineers was held rateable on the ground that its primary object was the advancement of scientific knowledge, not in general, but among its own members for the purpose of the pursuit of their profession as civil engineers ; 2 a literary and newsroom society was held rateable on the ground that it was established primarily for the improvement and con- venience of its own members, and not for the promotion of the general literature of the country ; 3 and the Zoological Society was held rateable on the ground that its primary object was the amusement of its subscribers. 4 The object of a society is to be nidged not so much by its Actual facts a * / . J . ii j - better test of written laws and constitution as by what it actually does in the object than , - written laws. practice. 3. "Exclusively." A society loses its title to exemption Exclusively .,..,,, .. .. . ., . .. K Use of rooms if it lets portions of its premises to other societies, 6 even by ot h ers takes though they pay only such sums as are equivalent to the cost of firing, lighting and cleaning, so that no profit is made, 7 or though the rent received is added to the funds and spent on the purposes of the society. 8 But where some of the except where they occupy 1 A v. Brandt, 20 L. J. M. C. 119 ; 9 ; 4 E. & B. 156, per Wightman, 16 Q. B. 462. J. ; Scott v. St. Martin' s-in-the- 2 B. v. Institution of Civil En- Fields, Westminster, 25 L. J. M. C. gineers, 5 Q. B. D. 48 ; 49 L. J. M. 42 ; 5 E. & B. 558 ; Purvis v. Traill, C. 34. 18 L. J. M. C. 57 ; 3 Ex. 344. 3 E. v. Gaskill, 21 L. J. M. C. 29 ; 6 Clarendon (Earl of) v. St. James', 16 Q. B. 472. Westminster, 20 L. J. M. C. 213 ; 10 4 Marylebone v. Zoological Society C. B. 806. of London, 23 L. J. M. C. 139 ; 3 " R. v. Baptist Missionary Society, E. & B. 807. 18 L. J. H. C. 194 ; 10 Q. B. 884. 5 Pt/.rchas v. Pariah of the Holy 8 Purvis v. Traill, 18 L. J. M. C. Sepulchre, Cambridge, 24 L. J. M. C. 57 ; 3 Ex. 344. 32 WHAT RATEABLE. [PART as servants of ' rooms were occupied by a clerk, librarian, and porter, whose residence was subsidiary and necessary to the purposes of the society, such occupation did not deprive the society of exemption : neither did the fact that a portion of the premises was let off, which was capable of being, and was, separately or where rated in the hands of the tenant. 1 So in the case of the Botanic Garden at Oxford, the residences of the Professor of Botany, the gardener, and the porter were held rateable separately, while not affecting the exemption of the garden itself. 2 rating. Voluntary contributions. To be volun- tary a contri- bution need not be gratuitoxis, but only not legally com- pulsory. "Supported, wholly or in part, by annual volun- tary contributions" In Birmingham (Churchivardens of} v. Shaw, 5 it was held that in order to entitle subscriptions to be regarded as voluntary, it is not necessary that they should produce no kind of return to the contributors. It was argued that " voluntary" means "gratuitous," and that the subscriptions must not entitle the subscriber himself to any personal 1 benefit, but Lord Denman, C. J., said, " Upon consideration we think that annual contributions will satisfy the condition required, if they commence of the party's own choice, are so continued, and may be withdrawn at pleasure, that is with- out subjecting the party to any legal liability or forfeiture beyond that of foregoing a participation in the pleasure or profit, scientific, literary or artistic, in respect of which they have been made. If the contributor was free to commence his contribution, and incurs no legal obligation to continue it when he has once commenced, and upon ceasing to contri- bute will lose no more than the privileges of membership, in respect of which he became a contributor, it seems to us that 1 Linncean Society v. St. Anne's, Westminster, 23 L. J. M. C. 148 ; 3 E. & B. 793. 2 Re Oxford Poor Rate, 27 L. J. M. C. 33 ; 8 E. & B. 184. 3 10 Q. B. 868 ; s.c. Re Birming- ham New Library, 18 L. J. M. C. 89. I.] LITERARY SOCIETIES, ETC. 33 he must be considered a voluntary contributor, unless we add something to the idea of voluntariness which in ordinary language it does not import. And that is what, in fact, is done by those who contend that it must be also gratuitous and bring no return of any kind to the contributor ; against the addition of which particular qualification there is the further reason that the statute itself, iri the clause next to be considered, 1 provides for this expressly, and so seems to exclude the notion of its being previously implied." In The Linncean Society v. St. Anne's, Westminster? Lord Campbell, C. J., said, "Although contributions are made by the fellows of the society, and they are under an engagement to pay so long as they are fellows, still they are voluntary, because it was under a voluntary engagement originally entered into that the obligation was incurred, and they voluntarily remain members of the society." The two last mentioned cases were followed in R. v. Brad- ford ; 3 and in The Liverpool Library v. Liverpool (Mayor A share in the of)* it was held that an institution called the Liverpool Library was not taken out of the exemption by the fact that a subscription of a guinea a year entitled the subscriber to a transferable share in the institution, which share had a market value. " Shall not, and by its laws may not, make any divi- dend, gift, division or bonus in money unto or between any of its member's" It is not sufficient, to qualify a society for exemption, that There must be no dividend, &c., has in fact ever been made or contemplated, but it must be expressly provided by the laws of the society an d no p0 ssi. bility of a dividend. 1 i.e., the clause which provides 793. that no member shall receive any 3 28 L. J. M. C. 73 ; 1 E. & E. 88. dividend, &c. 4 29 L. J. M. C. 221 ; 6 H. & N. 2 23 L. J. M. C. 148 ; 3 E. & B. 526. B 34 WHAT RATEABLE. [PART Division of proceeds on dissolution of the society. that no dividend, &c., shall be made. 1 But the profit which a subscriber might make by transferring his share in the society is not within the words " dividend, gift, division, or bonus in money." 2 Neither does a society while it exists lose its right to exemption merely because it might at some future time be dissolved and its property then sold and the proceeds divided amongst its members. 3 Volunteer storehouses exempt from rates. EXEMPTION OF STOREHOUSES CORPS. OF VOLUNTEER The 26 & 27 Viet. c. 65 enacts by section 26 as follows : " The commanding officer of a volunteer corps or administra- tive regiment, receiving any arms, ammunition, or other stores supplied at the public expense, or by subscription, shall subject to the approval of the lieutenant of the county, to which the corps belongs, or in which the head-quarters of the administrative regiment are situate (as the case may be), appoint a proper storehouse for the depositing and safe keep- ing of such arms, ammunition or stores. Every such store- house shall be free from all county parochial or other local rates and assessments." Lighthouses, buoys, beacons, kc., EXEMPTION OF LIGHTHOUSES, ETC. The Merchant Shipping Act, 1854 (17 & 18 Viet, c. 104), enacts, by section 430, that all lighthouses, buoys, beacons, ^ 1 R. v. Jones (the Religious Tract Birmingham New Library, 18 L. J. Society case), 15 L. J. M. C. 129 ; 8 M. C. 89. Q. B. 719. 3 lb. and R. v. Manchester, 20 2 Birmingham (Chuchwardcns of) L. J. M. C. 113 ; 16 Q. B. 449. v. Uha.w, 10 Q. B. 868; s.c. Re I.] CROWN PROPERTY. 35 and light-dues, and all other rates, fees, or payments, accru- exempt from ing to, or forming part of, the Mercantile Marine Fund, and all premises or property belonging to, or occupied by, the Board of Trade or any of the general lighthouse authorities constituted by the Act, which are used or applied for the purposes of any of the services for which such dues, rates, fees and payments are received, and all instruments or writings used by, or under the direction of, any of the general lighthouse authorities or the Board of Trade, in carrying on the services of lighthouses, buoys or beacons, shall be exempted from all public, parochial and local taxes, duties, and rates of every kind. There is also what is not quite accurately called the Property in exemption of Crown property. This will be discussed when pa tio n not"" we come to the consideration of under what circumstances rateable > there is a rateable occupier, of property which is in itself of a rateable nature, for property is exempted, not because it is Crown property in the sense of belonging to the Crown, but because when it is occupied by the Crown there is not an because the 'occupier' within the 43 Eliz. c. 2, for that statute only an 'occu- applies to subjects, the Crown not being bound by it because t not named in it. Perhaps some of the exemptions already dealt with, that of property occupied by literary, scientific or artistic societies for instance, should in strictness be placed under the head of exempted occupiers (in Part II.) rather than treated as exempted descriptions of property (in Part I.), but it appears convenient to place all the statutory exemptions together. D 2 36 WHO RATEABLE. [PART PART II. WHO RATEABLE. Poor-rate a personal tax on the occu- pier. ELEMENTS OF RATEABLE OCCU- PATION : . . . .36 POSSESSION . . . . 38 ACTUAL USER . . .60 TITLE IMMATERIAL . 62 PERMANENCE PROFIT BENEFICIAL OCCUPA- TION THE CROWN NOT A RATEABLE OCCUPIER PAGE 64 69 74 ELEMENTS OF RATEABLE OCCUPATION. HAVING found a property which is in itself of a rateable nature, the next thing to be ascertained is whether there is a person who can be rated in respect of it ; that is to say, Is there an occupier ? The Poor-rate is a personal tax. It is a charge in respect of land but it is not a charge on the land, payable out of it, like the Land Tax. 1 The person to be rated in respect of land is by the 43 Eliz. c. 2 the occupier, but unless a person can be found who is an occupier within the statute there is no one from whom the rate can be collected, 2 as the charge does not attach directly to the land itself. Therefore, the ques- :ion of what constitutes occupation within the statute is an 1 Case v. Stephens, Fitzg. 297 ; Theed v. Starkey, 8 Mod. 314. 2 Holford v. Copeland, 3 Bos. & Pul. 129, at 141 ; K. v. London (Mayor of), 4 T. R. 21, at 26 ; R. v. York (Mayor), 6 L. J. M. C. 121, at 125 ; 6 A. & E. 419, at 432 ; Smith v. Birmingham (Guardians of), 26 L. J. M. C. 105, at 109; 7 E. & B. 483, at 489 ; Roivls v. Gells, Cowp. 451 ; R. v. St. Luke's Hospital, 2 Burr. 1053, at 1066 ; R. v. Commissioners of Suiter's Load Sluice, 4 T. R. 730. II.] ELEMENTS OF RATEABLE OCCUPAlON. 37 important one. In a written judgment delivered in 1877, 1 Whatconsti- Lush, J., says "It is not easy to give a^accurate and exhaustive tion. definition of the word ' occupier.' Occupation includes pos- Possession, session as its primary element bufit also includes something more. Legal possession does not If itself constitute an occu- pation. The owner of a vacant house is in possession, and may maintain trespass against anyone who invades it, but as long as he leaves it vacant he is not rateable for it as an occupier. If, however, he furnishes it and keeps it ready for Actual user, habitation whenever he pleases to go to it, he is an occupier, though he may not reside in it one day in a year. On the Title imma- other hand, a person, who, without having any title, takes actual possession of a house or a piece of land, whether by leave of the owner or against his will, is the occupier of it. Another element, however, besides actual possession of the land, is necessary to constitute the kind of occupation which the Act contemplates, and that is p_erin j aiip.nca An itinerant Permanence, showman who erects a temporary structure for his perform- ances, may be in exclusive possession, and may, with strict grammatical propriety, be said to occupy the ground on which his structure is placed, but it is clear that he is not such an occupier as the statute intends. As the poor rate is not made day by day or week by week, but for months in advance, it would be absurd to hold that a person, who comes into a parish with the intention to remain there a few days or a week only, incurs a liability to maintain the poor for the next six months. Thus a transient temporary holding of land is not enough to make the holding rateable. It must be an occupation which has in it the character of perma- nence ; a holding as a settler not as a wayfarer." Four_j3oints are here indicated under which the cases on occupation may be grouped. There must be possession, there must be actual user, and the occupation must be of a 1 R. v. St. Pancras, 2 Q. B. D. 581 ; 46 L. J. M. C. 243. 38 WHO RATEABLE. [PART Occupation must be beneficial. There may be a rateable occupation above or below as well as on the surface. permanent character, but title is immaterial if possession exists. There is also another requisite, namely, the occupa- tion must be beneficial in order to be rateabia Before examining in detail the elements of the rateable occupation of land, it may be pointed out that land includes not only the face of the earth but every thing under it or over it, 1 so that there may be a rateable occupation below the surface by the pipes of a water company, buried in the earth/ and above the surface by the wires of a telegraph company, suspended in the air, 3 as well as an occupation of the surface itself by a third party. There must Be~pbsse*si of the soil. Easement or license insuffi- cient. No livery of seisin of incorporeal hereditaments. POSSESSION. The primary element of occupation is possession, and without possession there can be no occupation. A person who has only an easement, or license, or any- thing short of possession of the soil is not rateable. This is recognised in Sir Anthony Earby's case, 4 in which it is specified that assessments are to be made according to " visible estates." The limitation of rateability to " visible estates " excludes incorporeal hereditaments, 5 such as ease- ments and licenses in the nature of easements, and it pro- i ceeds apparently on the ground that there can be no occupier of property which is of such a nature that possession of it cannot be delivered, possession being essential to occu- pation. This view seems to be adopted by Bayley, J. in R. v. Churchill? where he says, " 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 ? 1 Burn's Justice, 29th eel., vol. iv, 190 (citing Blackstone) ; quoted by Martin B. in Electric Telegraph Co. T. Salford, 24 L. J. M. C. 146 ; 11 Ex. 181. 2 R. v. Bath (Corporation of),14 East 609. 3 Electric Telegraph Co. v. Salford, 24 L. T. M. C. 146; 11 Ex. 181. 4 2 Bnlst. 354. 5 Tithes and sporting rights are ex- ceptions. 6 4 B. & C. 750; 6 Dow. & Ry. 635. ft* r .oA - vy / II.] POSSESSION. 39 Each has a right to turn three head of cattle upon certain fields during a certain portion of the year. It is claimed by them as burgesses and as occupiers of ancient houses. Could they be enfeoffed of such a privilege ? If not it is plain that they have no right to the soil, but merelyjstn incorporeal here- ditament, a right of common by prescription, which is not rateable," and in Kempe v. Spence, 1 De Grey, C. J., lays down that a right of common being an incorporeal here- ditament is not a subject of occupation. There is no doubt that an easement is not rateable, 2 but it is sometimes difficult to say whether a given use of land amounts to occupation or only to an easement, in other words, whether the person it is sought to rate, is or is not in possession of the soil. PossessioD J jnoreover,J.obe rateable Possession must be exclusive, i.e., while the occupation exists there Elusive, must be neither any control or power of control in the grantor, nor any similar rights over the same subject matter in other grantees. As it is expressed in Nolan's Poor Law, 3 as between himself and the grantor, "it is necessary not both of the only that the person should have possession, but that he should have such a control and dominion over the subject, as implies freedom from any paramount occupation, or direct interference by a superior with his domestic arrangements and internal management ; such as a farmer enjoys over his farm, and the master of a family over his house." As against and of all ... . , other persons. other grantees, possession to be exclusive must be unattended by any similar and simultaneous rights in any other person in respect of the same subject matter, and where any such have been granted, or can be granted, to other persons, it is not a case of exclusive possession. 4 1 2 Wm. Bl. 1244. Hilton and Walkerfield v. Boires, - R. \. Almcick, 8 L. T. M. C. 50 ; L. R. 1 Q. B. 359 ; 35 L. J. M. C. 9 A. & E. 444 ; R. v. Mersey and Irwdl 137. Navigation Co., 7 L. T. (0. S.) M. C. ? Vol. L, 152, 153. 70 ; 9 B. & C. 95 (per Parke, J.) ; 4 R. v. Teidfcsbury, 13 East 155. 40 WHO RATEABLE. [PART There may be exclusive enjoyment without rate- able occupa- tion. Watkins v. Milton-next- Gravesend. There must be possession of the soil, as distinguished from easement or license, and possession that is exclusive both of dominant control by superiors and simultaneous rights in equals, before any one can be rateable as an occupier. If he can show that one of these conditions is not satisfied in his case he is not rateable. A person may have the exclusive enjoyment of the occupation, the sole use of moorings for instance, 1 and yet not be an occupier, because falling short of possession of the soil ; while on the other hand a person may be in possession in the ordinary sense of the word, as for instance a lodger, and yet not be an occupier, because subject to a paramount occupation by the landlord, or he may escape rateability simply because the owner of the property, of which he is in fact the only person in enjoyment, has the right of granting similar privileges to others. 2 Blackburn, J., said, in Watkinsv. Milton-next- Gravesend* " There may be a grant of many easements which are con- veyed solely to one person and yet do not confer any occupa- tion, such as a way leave to carry coals from a colliery to the sea shore ; an important right confined to that colliery alone ; that does not make the person who has the sole use of a private way over the land rateable ; or in the more familiar case of a lodger who has the sole right to the use of certain rooms in a house, he is not made by that means rateable if the agreement is that the tenant of the house shall retain the possession, as in the general case of a lodging he does, for the purpose of looking after the management of it ; the lodger is merely the inmate. Whenever that happens the lodging-house keeper is rateable, although the lodger is the person in possession ; and although he would have a good 1 Watkinsv. Milton-ncxt-Gravcscnd, tion Co., 3 L. J. (0. S.) K. B. 140 ; 4 L. R. 3 Q. B. 350 ; 37 L. J. M. C. B. & C. 57. 73. 3 L. E. 3 Q. B. 350 ; 37 L. J. M. C. " R. v. Trent and Mersey Naviga- 73. II.] POSSESSION. 41 action against the landlord if he were to put another lodger in occupation with him." Whether there is rateable possession or not, isjij^uestion Whether of fact, depending on the circumstances existing in cadi instance, but the decided cases may be usefully referred to fact> for suggestions of the tests that have from time to time been applied to determine who is the party in possession as well as for illustration of the general principles above stated. I. POSSESSION OF THE SOIL AS DISTINGUISHED FROM EASEMENT OR LICENSE. In R. v. Joliffe^_ the defendant, for the purpose of R. r. Joliffe carrying coals from his mines, obtained a lease of wayleaves or liberties of passage for coal waggons over certain lands, with liberty to make and lay waggon ways through those lands. He did not lay down any waggon ways himself, but used those made by another person who held a similar lease to his own, paying that person, for the use of the ways, so much per ton of coals carried. As he made no waggon way of his own, no soil passed to him under the lease from the freeholder to himself, which granted to him the soil in such parts only as he should make a way ; and with regard to his use of the other person's ways it was held that he had only a bare right of passage, which was an easement and therefore not rateable. In R. v. Churchill, 2 the burgesses and occupiers of ancient R. v . churchm messuages within a borough, had, as such, for a portion of the year, the right to turn cattle into certain fields, and to exclude during that period the freeholders as well as other people. It was argued that they were in exclusive occupa- 1 2 T. R. 90. Cf. R. v. Bell, page 2 4 B. & C. 750 ; 6 Dow. & Ry. 25, supra. 635. 42 WHO RATEABLE. [?ART Watkins r. Milton-next- (rravesend License to inoor. Cory v. Bris- tow Occupa- tion of soil by moorings. Pimlico Tramway Co. r. Greenwich Occupation of soil by tram -rails. tion, but held that they had no possession of the soil, but only, a right of common, and therefore were not rateable. la WatJdns v. Milton-next- Gravesend, 1 the Conservators of the Thames had granted to the appellant liberty and license to fasten and thenceforth keep fastened his coal hulk to moorings placed by the Conservators in the river, until either party should have given the other one calendar month's notice in writing. In consideration thereof the appellant agreed to pay towards the expense of placing, maintaining and repairing the moorings the annual sum of 30. The moorings belonged to the Conservators, and were laid down in soil which was. in their possession, unless the above amounted to a demise of the soil, which it was held it did not, and therefore there was no possession of the soil in the appellant, but only a license to moor, which was not rateable. Watkins v. Milton-next-Gravesend may be compared with Cory v. Bristoiv, 2 where the Conservators gave permission to the plaintiff to lay down moorings and moor a derrick hulk to them, subject to a condition that the Conservators might remove the moorings, if it became expedient to do so, on a week's notice. Here the moorings belonged to the plaintiff, and it was held that injrespect of them he was in possession of a pari of the soil, of the bed of the river, and therefore was rateable. In Pimlico Tramway Co. v. Greenwich? where a tramway company had laid down tram-rails in a highway, under an Act one section of which provided that the Co. were not to acquire any right other than that of user in such highway, it was argued that they had only a right in the nature of a wayleave, but held that they were in possession at all events 1 L. R. 3 Q. B. 350 ; 37 L. J. M. C. 73. " 2 App. Cas. 262 ; 46 L. J. M. C. 273. 3 L. R. 9 Q. B. 9 ; 43 L. J. M. C. 29. II.] POSSESSION. 43 of the space in the soil de facto filled by their rails, and were therefore ra.tpn.h1p.. But in Williams v. Jones 1 it was Williams v. held that a post, to which ferry boats were sometimes moored, driven into the soil of a highway was not of itself enough to render the ferry rateable. Here however there was apparently nothing to prevent other persons from using it also. If a railway company have 'running powers' over the Railway Co. .. if Running line ot another company, the iormer company are not rate- powers. able in the parishes where that condition of things exists^ because they are only in the enjoyment of an easement . there, not in occupation of the soil, 2 1 1 All the circumstances of the case must be taken into con- All the cir- , .,,..,... 1.1 ,-i cumstances to 1 1 sideration in determining whether a particular person is in ^ ^en ( nto \ possession Or not. consideration. In some cases stress has been laid on ability or otherwise Trespass. to maintain trespass, as ability to maintain trespass also depends on actual and exclusive possession. In Allan v. Liverpool and Inman v. Kirkdale? Blackburn, J., says, I " The poor rate is a rate imposed by the statute on the occu- pier, and that occupier must be the exclusive occupier, a person who if there was a trespass committed on the premises would be the person to bring an action of trespass for it." In R. v. Watson* where the corporation of a borough were owners in fee of commouable land which by custom was annually meted out to certain of the burgesses for the purpose of turning out their cattle, those who so used it paying a certain sum to those who did not, and the question was whether the corporation, or the burgesses who stocked the commons were the occupiers, Lord Ellenborough, C. J., and Lawrence, J., in deciding that the burgesses were the occupiers, relied on 1 12 East 346. Ey. Co., 11 L. T. N. S. 303. 2 Midland Ry. Co. v. Badgu-orth, 3 L. R. 9 Q. B. 180 ; 43 L. J. M. C. 69. 34 L. J. M. C. 25 ; s. c. R. v. Midland 5 East 480. WHO RATEABLE. [PART Title, relevant to explain user consistent with either possession or easement. the fact that they could, and the corporation could not 3j majn- tain trespass. Other cases where ability to maintain tres- pass has been referred to as a criterion are R. v. Morrish l and Grant v. Oxford Local Board- Although when it is established that possession does exist, it is immaterial whether it is with or without title, and the occupier's title is consequently irrelevant and not to be regarded at all, yet while the question of possession or no possession is still sub judice, title is one of those circum- stances upon which as a whole the decision is to be founded. Where a user exists, which unexplained, is consistent either with possession or with an interest not amounting to posses- sion, then the title by virtue of which such user exists may be looked to, in order to explain the user, and to ascertain whether it is to be referred to possession or easement. If a person is de facto in the exclusive enjoyment of an hereditament, he is prima facie an occupier, but a reference to his title may show that he is merely a licensee. A person who is osten- sibly an occupier may appeal to his title to prove that he is not one in reality. For instance, in such a case as Watkins v. Milton-next- Gravesend? supra, page 42, where a person is found making a use of moorings consistent Avith his being either a lessee in possession of the soil or a mere grantee of a license to. moor, then reference is to be made to his title to ascertain in which capacity he is acting. In R. v. St. Mary A bbott's, Kensington* the question was whether the purchasers of vaults from a cemetery company incorporated by statute were occupiers, or were only in the enjoyment of an easement. The form of conveyance used was set out in the statute. It provided that such conveyance should be sufficient to vest the exclusive right of burial, and inter 32 L. J. M. C. 245. ' L. R. 4 Q. B. 9 ; 38 L. J. M. C. 39. 3 L. R. 3 Q. B. 350 ; 37 L. T. M. C. 73. 4 10 L. J. M. C. 25 ; 12 A. & E. 825. II.] POSSESSION. 45 alia prohibited the company from selling any land set apart for burial. In deciding that the purchasers took only an easement, Coleridge, J., said, " Some facts stated in the case look like an occupation by the purchasers, but they are ex- plained by reference to the statute." In R. v. Alnwick l the question was whether certain persons were occupiers or commoners. They enjoyed a user consistent with either capacity, but they were held to be commoners, and conse- quently not rateable, on the ground that the original relation between them and the owner of the land was that of com- moners and lord. So reference to title may be necessary to ascertain whether a railway company using a line or a station are occupiers or are only in the enjoyment of the license to use commonly called ' running powers.' 2 See also Mildmay v. Wimbledon? But the mere existence of words of demise or words of Substance of license in the document constituting title will not be conclu- ^re important sive. The general intention of the parties and the real sub- stance of the transaction are to be looked to in preference. , to any mere isolated words or expressions. In Smith v. St. Michael, Cambridge, 4 ' which was recognised and followed in R. v. St. Pancras, 5 Hill and Blackburn, JJ., in holding an agreement not to be a demise, in spite of the words " agrees to let," "possession to be given," and "rent to commence," said " we think that we must look not so much at the words as the substance of the agreement." But it must be re- membered that what the parties intended to do is only relevant while it is yet undetermined what they have done. In Allan v. Liverpool and Inman v. Kirkdale* 1 8 L. J. M. C. 50 ; 9 A. & E. 444. < 30 L. J. M. C. 74 ; 3 E. & E. 2 Midland Ey. Co. v. Eadgworth, 383. 34 L. J. M. C. 25 ; s. c. R. v. Midland * 2 Q. B. D. 581 ; 46 L. J. M.C. 243. Ey. Co., 11 L. T. N. S. 303. 6 L. R. 9 Q. B. 180 ; 43 L. J. M. 3 41 L. J. M. C. 133. C. 69. 46 WHO RATEABLE. [PART Allan v. Liver- where the appellants were owners of steamships using certain Inman". quay space, sheds, &c., in the Mersey Docks, appropriated to Kirkdale. their use in a letter from the Dock Board, Blackburn, J., said, " It is quite clear that what we have to see is, whether or not the board parted with the exclusive possession of the premises the subject of the rate, to the persons who have been rated, in the one case Messrs. Allan, and in the other Mr. In man, so as to make them respectively the occupiers in the sense I have stated. In order to ascertain this, we must see what was the intention of the parties, and that depends not so much upon what words may have been used in the docu- ments employed, for the word ' let ' may have been used without there being a letting, and the word 'let' may have been carefully avoided, and yet it may appear that in fact the occupation has been parted with. What we have to look at, taking all the circumstances together, is, to see whether or not there was any exclusive occupation parted Smith and Son 1 with by the board to these persons." In Smith and Son v. Lambeth l the question was whether the appellants were rateable as occupiers of certain portions of railway platforms on which they had placed and maintained bookstalls, or whether they were merely grantees of the privilege of ex- clusive enjoyment. The title of the appellants consisted in an indenture made between them and the railway company. Whether this indenture was a demise or a license was the test of their rateability or otherwise. Field, J., said, " The company have granted something. What was it ? Was it exclusive occupation or exclusive enjoyment? Have they parted with the occupation ? To determine this we must look at the whole scope of the agreement." a 1 9 Q. B. D. 585 ; 51 L. J. M. C. 2 See also per Cairns, L. C., in 106 ; affirmed C. A., 10 Q. B. D. Cory v. Bristow, 2 App. Cas.-262, at 327 ; 52 L. J. M. C. 1. 275 ; 46 L. J. M. C. 273. II.] POSSESSION. 47 Among the circumstances that have been taken into con- Repair sideration in determining whether a person is or is not in possession is his liability to repair, since prima facie the person liable to repair is the person in possession. B_ut_ liability to repair is not more than prima facie evidence. 1 . Another circumstance relevant to the question of license Rates and or demise is payment of rates and taxes. If the owner of land is to pay them that is evidence that his intention was not to create a tenancy, but to grant only a license. 2 II. FREEDOM FROM THE CONTROL OF A PARAMOUNT OCCUPATION IN A SUPERIOR. The original occupier may grant away something which Paramount appears like the occupation, but if he retains to himself a right of (a) entry on^ or (&) general control over the property, he retains to himself a paramount occupation and is still rateable, or rather it would be more correct to say that, if he has made such a reservation, he has not parted with the pos- session, but has granted only the exclusive enjoyment of it. A grantee who has not the right of excluding the grantor is not in rateable occupation. In R. v. Morrish? the Royal Commissioners of the Exhibi- (<*) Right of tion of 1862 allotted to the appellant (a refreshment con- tractor), a certain space within the Exhibition building, for the purpose of selling refreshments. In accordance with his agreement with the Commissioners he entered on this space, made cellars, laid on gas and water and sold refreshments there, but it was held that he had no such occupation as 1 Per Blackburn, J. in JFatkins v. 25 ; 12 A. & E. 824, and R. v. Abney Milton-next-Gravesend, L. R. 3 Q. B. Park Cemetery Co., L. R. 8 Q. B. 350 ; 37 L. T. M. C. 73 ; see also 515 ; 42 L. J. M. C. 124. Cory v. Bristow, 2 App. Cas. 262 ; 2 Mogg v. Yatton, 50 L. J. M. C. 46 L. J. M. C. 273 ; R. v. St. Mary 17 ; 29 W. R. 74. Abbotts, Kensington, 10 L. J. M. C. 3 32 L. J. M. C. 245. 48 WHO RATEABLE. [PART (6) General control. would render him rateable, because he had no right to exclude the Commissioners. Wightman, J., said, " To make the occupier liable the occupation ought to be exclusive in its nature. Here the appellant could hardly have power to turn off the Commissioners and their friends, if they had chosen to walk through the 40,000 square feet of the Exhibi- tion premises which had been appropriated to him with the exclusive privilege of selling refreshments. The Commis- sioners would have a right to walk over that part, leaving to the appellant his exclusive privilege of selling refreshments. It seems to me that there was a mere grant of the license to exercise the right of supplying refreshments within the space allotted to him, and for the purpose of exercising that right to make certain erections, but that there was no such occu- pation as would make him liable to pay rates." In Allan v. Liverpool and Inman v. Kirkdale, 1 where certain quay space in the Mersey Docks was set apart by the Dock Board for the use of the steamers of a particular owner, he was held not_rateahle on the ground that the Dock Board (exercising as they did statu table powers of regulating to some extent the use of the quays by imposing a penal rent for goods left lying upon them) retained a general control over the docks^ So where the corporation of a borough are seised in fee of pasture lands, to the actual enjoyment of which, the bur- gesses or certain of them are entitled, then if the corporation exercise a general management or control by a ranger, 2 or a pasture-master, 3 the burgesses are not in rateable occupation. In R. v. St. Mary Abbott's, Kensington, 4 ' the Cemetery Co. case referred to supra on page 44, Denman, C. J., says, " The Company are occupiers of the whole premises. The ceme- tery is under their control and superintendence " .... and . 180; 43 L. J. M. C.69. B. v. Sudbury, 1 B. & C. 389. 3 . v. York (Mayor of), 6 L. J. M. C. 121 ; 6 A. & E. 419. Cf. K. \.Sterry, 9 L. J. M. C. 105 ; 12 A. & E. 84. * 10 L. J. M. C. 25 ; 12 A. & E. 824. II.] POSSESSION. 49 Williams, J. : " No doubt the Company are in the occupation of the whole cemetery. They have the regulation and the repair of it, and the general superintendence over it. They have the control of the external entrance." In Smith & Son v. Lambeth, 1 where it was sought to rate the appel- lants as occupiers of bookstalls maintained by them on railway platforms under an agreement with the Railway Co., Cave, J. said, "The persons they employ are to be under the control of the station-master. They are thus controlled in their access, in the mode of enjoyment, and in respect of the persons employed by them at the several stations. How then can it be said that they are tenants having exclusive legal occupation of the premises ? " In L. & N. W. Ry. Co. v. Buckmaster? the defendant was in use, under an agreement, of stables belonging to a Railway Co. The stables were situated within the curtilage of one of the Company's stations. It was contended that the agree- ment amounted to a demise and passed the possession to the defendant, but on the strength of a clause by which the de- fendant agreed to observe, and be bound by, any bye-laws the Company might make for the government of their stations and premises, it was held in the Court of Queen's Bench 3 that the Company retained a power of general control in consequence of which the defendant was not in rateable occupation. This case is an authority for the proposition that a mere Or mere power ower of control is sufficient without any control being actually exercised ; for the Company had not in fact exercised exercised. 1 9 Q. B. D. 585 ; 51 L. J. M. C. Amphlett, B.B., being of opinion 106 ; affirmed C. A., 10 Q. B. D. 327 ; that the judgment of the Court below 52 L. J. M. C. 1. should be affirmed, and Cleasby, B., 2 L. R. 10 Q. B. 70, and on appeal and Grove and Denman, J.J., holding L. R. 10 Q. B. 444; 44 L. J. M. C. 180. that on the facts the stable was a 3 On appeal the Court of Exchequer separate tenement, and that the Chamber was equally divided, Lord agreement operated as a demise. Coleridge, C.J. and Pollock and 50 WHO RATEABLE. [PART any control over the stables or made any bye-laws applicable to them. 1 Pew-renter. If churches and chapels were at the present day subject to poor rates, pew-renters would not be rateable occupiers. In Stocks v. Booth,* Buller, J., says, " Trespass will not lie for entering into a pew, because the plaintiff has not the ex- clusive possession, the possession of the church being in the parson ;" and in R. v. Agar 3 (previous to the exemption of churches and chapels), the trustees of a chapel, and not the pew-renters, were rated as occupiers of the pews although . in one instance 4 the lessee of a private box at a theatre was held to be rateable : but that was as the occupier of a I " tenement " within 10 Geo. III. c. 75, a local Act. Innkeeper. A guest at an inn has the right to exclusive possession of his rooms as against strangers ; and as against the inn- keeper also, with the sole exception that the innkeeper is entitled to enter by himself or his servants for such purposes as are manifestly implied in the relation of innkeeper and guest, such as lighting fires, bringing in meals, and other services of that description. The innkeeper has parted with the right of the exclusive enjoyment of the occupation, but the qualified right of entry and the general control which he exercises, amount to a retaining of possession and render him the rateable occupier. 5 Lodger. So also the landlord of a lodger, though not rendering ser- vices like the innkeeper, yet is the rateable occupier if he re- tains dominion and control over the building as a whole. As to what amounts to such dominion and control, Cockburn, C. J., says : 6 "It is necessary to establish some criterion, and it 1 Per Amphlett B. , L. R. 10 Q. B. at 446 ; 44 L. J. M. C. at 181. * 1 T. B. 430. 3 14 East 256. 4 . v. St. Martin' s-in-the- Fields, 11 L. J. M. C. 112 ; 3 Q. B. 204. 5 Smith v. St. Michael, Cambridge, 30 L. J. M. C. 74 ; 3 E. & E. 383. ' In JR. v. St. George's Union, L. E. 7 Q. B. 90 ; 41 L. J. M. C. 30. II.] POSSESSION. 51 is not always perhaps very easy to find one ; but the one which has been adopted in such cases, and which is, perhaps, the most convenient and the only one, is, whether the land- lord retains the control of the outer door, and has shown, by his retaining the control of the outer door, that he has the control of the whole of the premises ; so that although he may be liable to an action upon the breach of his contract to allow the tenant to occupy a portion of the premises so let to the tenant, yet the tenant could not maintain trespass against the landlord, because the landlord has retained in himself the dominion and control over the whole of the house. _I_. think the possession of the street door may be taken as a criterion, because it is only by the landlord opening and shutting the street door, or allowing it to be opened and shut for the ingress and egress of the tenant, that the tenant can have the enjoyment of the premises." Another illustration of exclusive enjoyment without pos- Cabin session, somewhat similar to that of a guest at an inn, is that of a passenger who hires a separate cabin for himself in a ship ; and, indeed, if a man hired a whole ship the possession would remain in the owner so long as she was navigated by a captain and crew in the owner's employ. 1 As a lodger is not rateable on account of the paramount Servant, occupation of the landlord, so one who resides in another's house as his servant is not rateable. The servant has the use of the rooms, but has no occupation distinct from, and independent of, that of his master, and the occupation of a servant as sewant, is in law the occupation of the master, and the master is the rateable occupier. In R. v. Tyne- motdkf where it was attempted to rate a man who resided in a lighthouse as servant of the owner, his duty being to take care of the light, Lord Ellenborough, C. J., held that the 1 Dean v. Hogg (a.) Occupation not permanent because shifting in locality (a. ) There must j n j. v . Morrison 3 (explained in Forrest v. Greenwich be occupation of a fixed (Overseers of) 4 ), a floating dock or cradle which floated at locality, 1 2 App. Cas. 262 ; 46 L. J. M. C. C. 98 ; 5 B. & Ad. 156 ; & v. Pon- 273. soriby, 11 L. J. M. C. 65 ; 3 Q. B. 14. 2 Bute v. Grindall, 1 T. R. 338 ; 3 22 L. J. IVL C. 14 ; 1 E. & B. 150. E. v. Hurdis, 3 T. R. 497 ; R. v. 4 8 E. & B. 890, at 899 ; s. c. R. v. Chelsea Water Works Co., 2 L. J. M. Forrest, 27 L. J. M. C. 96. 7 '\s^<-^\J II.] PERMANENCE. 67 high tide and grounded at low tide, and was sometimes taken further out into deeper water, was held not to be the subject of rateable occupation, because it had no fixed locality ; but in Forrest v. Greenwich (Overseers of) l it was held that a pier could not be said to have no locality merely because it floated at high tide. In Spear v. Bodmin Union? stalls in a market-house were let by the year ; the stalls were moveable, and after being removed when the market-house was used for other purposes, such as bazaars and concerts, were not necessarily replaced on the exact spots of ground which they previously occupied, though they were always arranged in the same part of the market-house and in the same order relatively to each other. Under these circumstances it was held that the occupation of the renters of stalls was not rateable, because deficient in permanence as regards place, for therejgaa npjDCcupation of a definite portion of the soil. It also failed to be rateable because it was not exclusive, for the renters were entitled to the use of the stalls, only on the fixed days and hours when the market was held, and .they could not exclude other people from the use of the soil at other times. But in JR. v. Whaddon (Overseers of) 3 "a perpetually shift- but see R. v. ing" occupation of land was held rateable under circumstances (Overseers of), which, briefly stated, were as follows : A patent manure company obtained from the owner of certain lands a grant of the privilege of enteringon the lands and raising the coprolitea^ one of the terms of the agreement being that after having done so they should level the surface and restore the top soil. In the course of their operations the company gradu- ally moved, so to speak, across the land, being always in the occupation often acres, on one-third of which the process of 1 8 E. & B. 890 ; s. c. R. v. Forrest, 3 L. R. 10 Q. B. 230 ; 44 L. J. M. 27 L. J. M. C. 96. C. 73. 2 49 L. J. M. C. 69 ; 44 J. P. 764. F 2 68 WHO RATEABLE. [PART and (b) in cer tain cases at- tachment to the soil as a fixture. raising the coprolites was going on, the remaining two- thirds being occupied by them for the purpose of fulfilling their obligation to restore the land to its original condition. But although there was a constant occupation of ten acres, the occupation was a pei^petually shifting one, for the com- pany, as they extended their operations acre by acre in the one direction, abandoned land and restored it to the owner in the other. The company were however held rateable in respect of the occupation of ten acres. (6.) Occupation not permanent because no attachment to the soil as a fixture In certain cases there may be an occupation of a perma- nent character as regards time, and which also satisfies the conditions of permanence as regards place, in so far that the place occupied is always the same, and yet the occupation may fall short of permanence because there is no attachment to the soil as a fixture. Lush, J., says in R. v. St. Pancras, 1 " Where the subject of occupation is not a surface area which is the idea primarily suggested by the phrase ' occu- pier of land ' but only a small portion of the soil, so much of it as contains a post, a pipe, or a rail, the element of permanence or its absence is shown by the way in which the post, &c., is connected with the soil It would be an abuse of language to say that the owner of a post lying upon the ground is thereby occupier of the ground upon which the post rests, however long it may be there ; but if the post is inserted into the ground, or otherwise so attached to it that it cannot be severed from the land without breaking up the soil, it has become one with the soil, and the owner of the post is thereby occupier of the soil to which it is annexed." 1 2 Q. B. D. 581 ; 46 L. J. M. C. 243. II.] PROFIT. BENEFICIAL OCCUPATION. 69 PROFIT. BENEFICIAL OCCUPATION. Occupation in order to be rateable must be ' beneficial,' Occupation that is, it must produce, or be capable of producing, profit. If the occupation is productive, or capable of being so, i.e. produc- it is immaterial whether the occupier does or does not benefit no t necessarily by the profit produced. If, for any reason whatever, the P rofitable - profit passes into other hands than those of the occupier, that does not discharge him from rateability. The overseers are not required to follow the produce of the occupation, to ascertain who is ultimately benefited by it. It matters not, for instance, that the occupier may be a bare trustee for the public without any personal interest, 1 or that he may have made such an onerous contract with his landlord that he retains none of the profit for himself. 3 The law on this point was settled by the House of Lords, Mersey Dock after putting questions to the Judges, in the Mersey Dock Cases? where they decided that a person in occupation of valuable property is not exempt from rateability because he occupies merely in a fiduciary character. Previously it had been held in several cases that persons The previous . , view of the who occupied as trustees, and did not personally derive any i aw as to bare pecuniary benefit or advantage from the occupation, were t] ees> not rateable. For instance, in R. v. St. Lukes Hospital,* the trustees of a hospital were held not rateable, because they had no personal pecuniary interest in the occupation. In R. v. Commissioners of Salters Load Sluice, 5 Navigation Com- missioners were exempted as having a bare trust not coupled with any interest. In R. v. Liverpool Docks (Trustees 1 Mersey Dock Cases, 35 L. J. M. Q. B. 242. C. I; 11 H. L. C. 443. 3 35 L. J. M. C. 1 ; 11 H. L. C. 443. - R. v. Parrott, 5 T. R. 593. See < 2 Burr. 1053. R. v. Vange, 11 L. J. M. C. 117 ; 3 s 4 T. R. 730. 70 WHO RATEABLE. [PART overruled by Mersey Dock Cases Lord West- bury, L. C., on beneficial occupation. Lord Cran- worth. of), 1 following the Salter's Load Sluice Case, a Dock Board, who were bound to maintain docks for the public benefit, and empowered to levy dock dues for the purposes only of defraying the cost of construction and the annual cost of maintenance of the docks, were held not rateable. But the Mersey Dock Cases 2 overruled these and other similar decisions which are there collected and reviewed by Blackburn, J. and Byles, J. Lord Westbury, L. C., said in the Mersey Dock Cases, " The questions raised in this appeal depend in a great measure on the inquiry, What is the occupation of real property which is liable to be rated under the 1st section of the Act of the 43 Eliz. c. 2 ? Independently of the decided cases, several of which are irreconcilable with each other, it would seem to be easy to answer this inquiry ; and having regard to the Parochial Assessment Act, it may be said in answer, that ' occupation to be rateable must be of property yielding, or capable of yielding, a net annual y^ljie^ that is to say, a clear rent over and above the probable average annual cost of the repairs, insurance, and other expenses, if any, necessary to maintain the property in a state to com- mand such rent.' It is in this sense that I understand the words 'beneficial occupation/ wherever it is said that to support a rate the occupation must be a beneficial one. For on principle it is by no means necessary that the occu- pation should be beneficial to the occupier. It is sufficient if the property be capable of yielding a clear rent over and above the necessary outgoings." Lord Cranworth said, " That the defendants in error are occupiers of lands in the parish of Liverpool cannot be doubted, and so, unless there be something to exempt them, 1 5 L. J. (0. S.) M. C. 145 ; 7 B. fc C. 61. : 35 L. J. M. C. 1 ; 11 H. L. C. 143. II.] PROFIT. BENEFICIAL OCCUPATION. 71 they are rateable. The argument on their behalf has been that though they are occupiers, their occupation is not a beneficial occupation ; and the statute, it was contended, con- templated only such an occupation as is beneficial to the occupier, or to some other person or persons for whose behoof the occupier is occupying. If by beneficial occupation is meant any occupation of something valuable, something in its own nature beneficial to some one, I think it is fair to consider that word as impliedly included in the statute. It was not meant to impose the duty of contributing to the relief of the poor on any one, merely because he might be the occupier of a barren rock, neither yielding nor capable of yielding any profit from its occupation. But I can dis- cover nothing, either in the words or the spirit of the Act, exempting from liability the occupier of valuable property, merely because the profits of the occupation are not to be enjoyed by him, or by any one on whose behalf he is occupying, but are to be devoted to the benefit of the public." Lord Chelmsford said : " If an occupier derives no benefit Lord Chelms- of any description from his occupation, it forms no part of the general ability of the parish, but if it is productive (although not profitable), there is nothing in the Act which requires the overseers to follow the produce in its subsequent application. The receipt of it constitutes the visible ability of the occupier. As was said by Lord Tenterden in R. v. The Inhabitants of St. Giles ', York, 1 ' If any profit be made, the application of it, when made, is immaterial as to the question of rateability' .... I am of opinion that under the words of the 43 Eliz. c. 2, every occupier of a tenement yielding profit is within the rating clause of the statute, although the tenement be a public work for the general 1 1 L. J. M. C. 50 ; 3 B. & Ad. 573. 7*2 WHO RATEABLE. [PART Immaterial what propor- tion of the profits is received by the occupier. Mere capa- bility of pro- ducing profit sufficient. good of the realm, and the profit be directed to be applied exclusively to its maintenance." If the fact that the whole of the profits pass to some one other than the occupier is immaterial, it would seem to follow as of course that it is immaterial that a part of them does so. But in R. v. Rhymney Railway Co., 1 it was contended, it need hardly be said without success, that the sole occupier of wharves was not to be rated on certain wharfage dues constituting a part of the value of the occu- pation, because, by the contract of tenancy, such dues were reserved to the landlord. On the strength of the Mersey Dock Cases it was held in R. v. Sherfcnvl, 2 that in rating a vicar for his tithes no deduction can be made for the ex- pense of a curate. Again, if the judgments in the Mersey Dock Cases, did not sufficiently establish that in order to constitute beneficial occupation, it is not necessary that profit should be actually produced, but only that the occupation should be capable of producing profit, there is a decision of the House of Lords in the St. Thomas' Hospital case, London (Mayor of) v. Stratton, 3 where it was contended that the case of a hospital which receives no remuneration from the patients who use it, and produces nothing in the shape of profit, is thereby distinguishable from such a case as that of the Mersey Docks, where tolls were received for their use. But the House held, without calling for a reply to this argument, that no such distinction existed. In the two last mentioned cases respectively, the Rhymney Railway Co. and the Governors of St. Thomas' Hospital did not dispute that they were in occupation of the 4 premises, and, therefore, it is hard to see how they could 1 L. R. 4 Q. B. 276 ; 38 L. J. C. 113. M. C. 75. :i L. R. 7 H. L. 477 ; 45 L. J. M. " L. R. 2 Q. B. 503 ; 36 L. J. M. C. 22. II.] PROFIT. BENEFICIAL OCCUPATION. 73 have obtained the exemptions they sought, consistently with the rule laid down in the statute, that the basis of an occu- pier's rateability is to be the amount the property would fetch per annum if let to a hypothetical tenant on certain defined terms. Briefly, the rule established by the Mersey Dock Cases is, The general that, if a person is in occupation of a property which pro- duces, or is capable of producing profit, he is rateable on the value of the occupation, no matter whether profits are actually received or not, or what becomes of them when received. An example of property not within the rule, because not Sewers, the subject of beneficial occupation, is that of the sewers in the occupation of the Metropolitan Board of Works. 1 In Lincoln (Mayor of) v. Holmes Common (Overseers o/), 2 Lincoln (Mayor the Corporation of Lincoln were the owners and occupiers of common (Over- a common, subject to a right in freemen to depasture cattle, seera of ^' the exercise of which right exhausted the whole of the pasturage. The decision that the Corporation were not rate- able under these circumstances may appear at first sight not to be in accordance with the rule that an occupier does not cease to be rateable because the profits pass into the hands of some one else. But it will be found that the majority of the Court, Blackburn, J., and Shee, J., (Cockburn, C. J., alone holding that the Corporation were not rateable), held, not that the Corporation were not rateable occupiers, but that the rate ought to be reduced to nothing, because in the then existing circumstances, the cattle of the freemen being numerous enough to consume the whole pasturage, the occupation of the Corporation would be worth nothing to the hypothetical tenant. The amount of their rateability being measured by the 1 R. v. Metropolitan Board of Works v. West Ham, L. R. 6 Q. B, Works, L. E. 4 .Q. B. 15 ; 39 L. J. 193 ; 40 L. J. M. C. 15. M. C. 24; Metropolitan Board of ' L. R, 2 Q. B. 482; 36 L. J.M. C.73. 74 WHO RATEABLE. [PART value of the occupation to the hypothetical tenant, would vary inversely with the aggregate number of the cattle of the freemen. If, as Blackburn, J., suggested, the number of freemen were ever reduced, so that the aggregate number of cattle they were entitled to turn on the common would not be enough to eat up all the grass, then there would be a margin of benefit for which the Corporation might get a rent from the hypothetical tenant, and for which, consistently with the judgments of Blackburn, J., and Shee, J., they would be rateable. The reason the enjoyment of the. profits by the freemen was held to operate as a discharge of the Corporation was that it was a legal incident of their occupation, which the Corporation had no option of preventing. It was not by any arrangement or contract made by them, that the profits passed to the freemen ; if it had been so the Corporation would not have been exempted. The Crown not bound by a statute unless named J in it, and therefore not within the 43 Eliz. c. 2. Extent of the exemption of the Crown. THE CROWN NOT A RATEABLE OCCUPIER. The law is prima facie presumed to be made for subjects only, and it is a well recognised rule that the Crown is not bound by a statute unless named in it. 1 The Crown is not named in the 43 Eliz. c. 2, arid therefore when property is occupied by the Crown there is not an occupier within the statute, and therefore no one who can be rated. The exemption from rateability which exists when the property is in the occupation of the Crown includes cases where the occupation is that of the servants of the Crown Maxwell on the Interpretation of Statutes, 1st edition, p. 112. II.] THE CROWN. 75 occupying for the purposes of the Crown. 1 The purposes of the Crown comprise the carrying on of the Government of the country, the administration of justice, and the discharge of such other duties as are theoretically the prerogatives of the Crown. Accordingly it has been held that property is not rateable when occupied for the purposes of the Royal Army and Navy ; 2 or of the Post Office ; 3 for Assize Courts, or judges' lodgings; 4 or for Prisons. 5 Before the Mersey Dock Cases there had been decisions in The old rule, which the distinction between occupation for public purposes and occupation for Crown purposes had not been duly recognised, and exemptions had been admitted in cases 1 Per Lord Westbury, L. C. , and Lord Cranworth in the Mersey Dock Cases, 35 L. J. M. C. 1 ; 11 H. L. C. 443. 2 Amherst v. Sommers, 2 T. R. 372 ; R. v. Stewart, 27 L. J. M. C. 81 ; 8 E. & B. 360. But to prevent the hardship which such exemptions entail on the other occupiers in the parish, the 23 & 24 Viet. c. 112, which was an Act to enable lands to be acquired for the construction of fortifications for the defence of the realm, provided, by sec. 33, that such lands should nevertheless continue rateable to the extent of their previously existing value, and similarly the 31 & 32 Viet. c. 110, the Act under which the Post Office purchased the Tele- graphs, provided by sec. 22, that all property acquired under that Act by the Postmaster-General should never- theless continue to be rateable to the extent of its previously existing Value. However, it appears from R. v. The Postmaster-General, 28 L. T. N. S. 337 ; 37 J. P. 196, that this section is of no effect, as the Act provides no means of enforcing the payment. 3 Smith v. Birmingham (Guardians of), 26 L. J. M. C. 105 ; 7 E. & B. 483. 4 R. v. St. Martin's, Leicester t L. R. 2 Q. B. 493 ; 36 L. J. M. C. 99 : R. v. Castle View, Leicester, L. R. 2 Q. B. 497 ; 36 L. J. M. C. 101 ; Lancashire JJ. v. Cheetham, L. R. 3 Q. B. 14 ; 37 L. J. M. C. 12. 5 R. v. Shepherd, 1 Q. B. 170 ; 4 P. & D. 534. In this category are included reformatories established under 17 & 18 Viet. c. 86, and 20 & 21 Viet. c. 55 : Sheppardv. Bradford, 33 L. J. M. C. 182 ; 6 C. B. N. S. 369. But a school certified by the Secretary of State, under 29 & 30 Viet. c. 118, as an " Industrial School " for the reception of children sent to it under the provisions of the Act, by two Justices or a Magistrate, was held rateable. R. v. West Derby (Overseers of),L. R, 10 Q. B. 283 ; 44 L. J. M. C. 98, and so was a school for training masters for paupers' schools, though established by the Treasury on behalf of the Lords of the Committee of the Council of Educa- tion : R. v. Temple, 2 E. & B. 160. 76 WHO RATEABLE. [PART restricted in the Mersey Dock Cases, and in Grejg v. The Uni- versity of Edinburgh. where the occupation was of the former description. In the Mersey Dock Cases this distinction was pointed out, and it was laid down that the latter kind of occupation only, and not the former, was to be exempted. It is not now therefore sufficient to entitle to exemption the occupiers of property even belonging to the Crown, to show that they use it for public purposes ; but it must appear that the purposes for which the property is used are such that the occupiers may be regarded as agents on behalf of the Crown in carrying them out. In Greig v. The University of Edinburgh, 1 where it was contended that the buildings of Edinburgh University were within this exemption, the effect on the law of the Mersey Dock Cases is stated by Lord Westbury as follows : " On the question of exemption, anterior to the decisions of your lordships in the Mersey Dock Case, great looseness of expres- sion prevailed in the language of the decisions. We had a variety of decisions in which it was held that property held for charitable purposes, being held for public purposes, was not to be regarded as liable to poor rates. The true ground of exemption was ascertained and expressed by this House in the Mersey Dock Case ; and it was found to rest altogether upon this fact, that the poor laws did not include the Crown, the Crown not being named in the statute. The result therefore was that Crown property, and property occupied by the servants of the Crown, and (according to the theory of the Constitution) property occupied for the purposes of the administration of the Government of the country, became exempt from liability to poor rate. The confusion and loose- ness involved in the words ' national objects ' were thereby removed." With regard to the facts of the case before him he said, " Now nobody will contend that the functions of a 1 L. E, 1 H. L. Sc. 348. II.] THE CROWN. 77 University to teach, to instruct, to confer degrees, are func- tions involved in the administration of the Government of the country. They are perfectly distinct ; and it is impossible therefore to bring the functions of a University within the proper meaning of Government purposes ; and if so it is impossible to hold that property granted by the Crown to the University, or for the purposes of a University, is property granted for the service of the Government of the country." The rule that in order to exempt property on the ground Present law. of the privilege of the Crown, the occupation must be, either that of the Crown itself, or an occupation in and for the service of the Crown, has been firmly established by the House of Lords, 1 and any earlier cases in which exemptions were admitted on the ground of occupation for merely public or national purposes must be taken to be overruled, unless indeed their facts would bring them within the modified form of the rule now laid down by the House of Lords. In connection with Greig v. The University of Edin- R- v - Shee - burgh, R. v. Shee, and De la Beche v. St. James', Westmin- ster, may be referred to. In R. v. Shee? a part of the National Gallery buildings, then occupied by the Royal Academy, was held exempt on the ground of Crown occupa- tion. Exemption was denied to the University of Edin- burgh on the ground that the performance of the functions of a University is no part of the duty of the Crown, and that therefore those who perform them cannot be considered to do so as the agents of the Crown ; but it might equally well be said that the maintenance of a Royal Academy for the promotion of Art is not within the scope of the duty of the 1 Mersey Docks Case, 35 L. J. M. C. Inspector of the Poor, L. R. 1 H. L. 1 ; 11 H. L. C. 443 ; Adamson v. Sc. 17 ; and Greig v. The University The Clyde Trustees, 4 Macq. 931 ; of Edinburgh, L. E. 1 H. L. Sc. 348. Commissioners of Leith Harbour v. 2 12 L. J. M. C. 53 ; 4 Q. B. 2. 78 WHO RATEABLE. [PART De la Beche v. St. James', Westminster. R. v. McCann. Crown, and that therefore the Royal Academy is not within the exemption. However it is not to be assumed that the Royal Academy would now, (apart from any claim to exemption under 6 & 7 Viet. c. 36, as a society for the promotion of art,) be held rateable ; as in R. v. Shee, the Court having regard to all the circumstances of the case, held that the members of the Royal Academy might " well be considered the minis- ters or agents of the Crown, for furthering the object for Avhich the property of the Crown is employed." In De la Beche v. St. James', Westminster} the matter in question was the rateability of the Museum of Practical Geology, which was erected upon a site belonging to the Crown, out of monies voted by Parliament, and was kept in repair by the Commissioners of Works and Public Buildings, and the current expenses of which were defrayed by the Treasury, out of monies granted to Her Majesty by Parlia- ment for that purpose : here again it could scarcely be said that the maintenance of a Museum of Practical Geology is one of the functions of the Crown. This case is not affected by the Mersey Dock Cases ; that is expressly stated by Mellor, J., in jR. v. McCann? but whether or not it is consistent with Greig v. The University of Edinburgh is another question. In R. v. McCann 3 it was held that the exemption ex- tended to a bridge, built by the Commissioners of Public Works and Buildings, with money borrowed from the Trea- sury, the tolls to be applied to the expenses of maintenance, then to the repayment of the loan for construction, and then any surplus to the consolidated fund. R. v. McCann was first decided by the Court of Queen's Bench a few months before Greig v. The University of Edinburgh, and then affirmed by the Exchequer Chamber a few days after Greig 1 24 L. J, M. C. 74 ; 4 E. & B. 37 L. J. M. C. 25 ; (Ex. Ch.) 123. 385. 3 Ibid. 2 L.K. 3Q. B. 141; (Ex. Ch.)677 II.] THE CROWN. 79 v. The University of Edinburgh was decided by the House of Lords, but that case was not referred to, either in argument or in the judgment of the Court. There are three cases in which it has been held by the Recent cases on exemption Court of Queen's Bench that the Mersey Dock Cases did not of Assize affect the exemption previously accorded to Assize Courts, &c., namely, R. v. St. Martin's, Leicester, 1 R. v. Castle View, Leicester," and Lancashire JJ. v. Cheetham. 3 These three cases were all decided before Greig v. The University of Edinburgh, but do not appear to be affected by it, for the Queen is the fountain of justice to all the subjects of the realm, and buildings which are necessarily occupied for the purposes of administering justice, and for cognate objects, are within the exception as buildings really occupied for the discharge of duties arising out of the prerogatives of the Crown. 4 There is no exemption where Crown property, a royal No exemption . . . , , . where Crown jalace for instance, is occupied by private persons in a per- property occu- sonal capacity for their own benefit. This was so held before geets or ihe Mersey Dock Cases. 5 tfa eir own ' Again, if servants of the Crown have a beneficial occur oro f servants pjition in excess of what is necessary for performance of their of the Crown, service, they are rateable for the excess* See Bute v. Grin- as their occu- dall, 6 where the ranger of a royal park was held rateable for the profits of inclosures within the park ; R. v. Terrott, 7 . where the commanding officer of barracks, occupying with his apartments a coach-house, stable, yard, garden, &c., was 1 L. R. 2 Q. B. 493 ; 36 L. J. M. C. 6 R. v. Ponsonby, 11 L. J. M. C. 99. 65 ; 3 Q. B. 14 ; Portland (Duke) v. 2 L. R. 2 Q. B. 497 ; 36 L. J. M. C. St. Margaret's, Westminster, Cald. 101. 3 n. ; R. v. Chelsea Waterworks, 3 L. R. 3 Q. B. 14 ; 37 L. J. M. C. 2 L. J. M. C. 98 ; 5 B. & Ad. 156. 12. 6 1 T. R. 338. 4 Per Mellor, J., in R. v. Castle "> 3 East, 506. View, Leicester, at p. 502. 80 WHO RATEABLE. [PART held rateable for excess ; Gamhier v. Lydford, 1 where the governor of a prison was held rateable for excess consisting of coach-house and stabling within the prison ; R. v. Stewart, R. v. Edwards, R. v. Lake, and R. v. Stainsby? where it was held that the governor of a garrison town, the com- mander of a military district, and a storekeeper, or porter, occupying premises belonging to the Crown, were respectively rateable for so much of their occupation as was more than reasonably necessary for the performance of their duties ; Lancashire JJ. v. Cheetham? where, the county justices having let the assize courts, &c., at times when they were not required for the assizes, to the Corporation of Manchester, who paid 600 per ann. for their use of them, the justices were held rateable on this 600, for to that extent their occupation was beneficial, and not merely for the purpose of the administration of justice. 1 23 L. J. M. C. 69 ; 3 E. & B. 346. See Martin v. West Derby Union, W. N., March 24th, 1883, p. 53. In Gambier v. Lydford, Lord Campbell, C. J., and Wight- man, J. (Coleridge, J. dissenting), held that an official residence which would have been exempt if situate within the prison was not exempt if situated without the walls ; but it is submitted that if in other respects property is entitled to the exemption, its position is not material and does not disentitle it See Congreve v. Upton, 33 L. J. M. C. 83 ; 4 B. & S. 857. 2 27 L. J. M. C. 81 ; 8 E. & B. 360. 3 L. R. 3 Q. B. 14 ; 37 L. J. M. C. 12. III.] HO W RATEABLE. 81 PART III. HOW RATEABLE. PAGE GENERAL PRINCIPLES : I. RATING MUST BE EQUAL 81 II. PROPERTY MUST NOT BE RATED TWICE OVER. 84 III. REBUS SIC STANTIBUS . 86 IV. COMMUNIBU8 ANNIS . 93 V. ENHANCED VALUE . 98 VI. PAROCHIAL PRINCIPLE. 114 VII. CONTRIBUTIVE VALUE . 119 VIII. DISTINCTION BETWEEN DIRECT AND INDIRECT SOURCES OF PROFIT. 138 THE RATING OF : RAILWAYS, CANALS AND DOCKS, GAS, WATER AND TRAMWAY COMPANIES . 141 BRIDGES . . . 157 MINES ... . 158 TITHES . . . . 162 SALEABLE UNDERWOODS, PLANTATIONS AND WOODS 165 RIGHTS OF SHOOTING, FISH- ING, &C. . . .167 LUNATIC ASYLUMS . . 168 LAND GENERALLY 169 RATING MUST BE EQUAL. THE 43 Eliz. c. 2, obviously intended that rating should be equal ; that is, that the contribution of each person to the support of the poor should be in proportion to the value of his property. And it appears from Sir Anthony Earby's Case, 1 in 1633, that even before that time it had been judicially declared that assessments must be equal. But from the statute of Elizabeth, down to 1836, 2 no direc- tions were given by statute as to the method of calculation 1 2 Bulst. 354. 3 When the Parochial Assessment Act was passed. The 43 Eliz. c. 2, and Sir Anthony Earby's case show that rating mast be equal, but no further statutory guidance on the point was given till the P. A. Act of 1836, 82 HOW RATEABLE. [PART though in the interval the Courts main- tained the principle. A poundage on the rent would be equal if all properties were let and let on similar terms. Assume them to be so let, and calculate by which equality of rating was to be arrived at. During that period, a rate if manifestly unequal, would have been quashed by the Courts ; l and subject to such general control by the Courts, the method of arriving at equal assessments was left to the individual discretion of the respective rating authorities. In order to rate in accordance with the principle of equality, a method of assessment is required that will affect all occupiers fairly and equally. It may be said at once A poundage on the value of the occupation would produce the result required. But it is not so obvious how the value of the occupation is to be arrived at. It may then be said that rent affords a measure of the value of the occupation. So it might if every property were let, and let on similar terms ; but different properties, intrinsically of the same value, or the same property at different times, may be occupied respec- tively by a yearly tenant, a lessee for a long term, or an owner. The lessee for a term ordinarily has to repair, and therefore pays less rent than the yearly tenant, and so, if the rent actually paid were taken as the value of the occupa- tion, would pay a less rate ; while an owner paying no rent, would consequently pay no rates at all ; and yet in each case the value of the occupation is ex hypothesi the same, and the method of assessment employed ought to be one that would place the rate at the same amount, whether the occupier be tenant, or owner. But from the fact that rent would be a fair basis on which to calculate a poundage if only a given state of facts existed, namely if every occupation were a tenancy on similar terms, to a method of arriving at such a basis is not a far step. Assume that such a state of facts exists, or rather estimate what the rent of each particular property 1 R. v. Audly, 2 Salk. 526 ; R. v. Clerkenwell, Foley P. L. 12; 1 Const. Ill ; R. v. Eroyrave, 4 Burr. 2491 ; R. v. Hardy, Cowp. 579 ; R. v. Lakenham, 1 Const. 116. III.] RATING TO BE EQUAL 83 would be if such a state of facts did exist, and that amount the poundaga may be taken as the basis required. Any kind of tenancy thetical rent. might be taken as the standard, provided that the same were taken in each case. I Previous to 1836, it had become usual This was done in practice to take a yearly^ tenancy as such a standard, and before'the 3 having estimated in each case the rent a yearly tenant would p> A - Act pay to the landlord (the tenant paying all rates, charges, and outgoings), to rate the occupier in proportion to that amount as the value of the occupation. 1 In 1836, this method of arriving at the value of the occu- j>d_thi3 was. pation was, with but slight modification, made uniform and TTXTUt ','" compulsory by the Parochial Assessment Act, 2 which provided enactec1 ' that rates were to be made " upon an estimate of the net annual value of the several hereditaments rated thereunto ; that is to say, of the rent at which the same might reason- ably be expected to let from year to year, free of all usual tenant's rates and taxes, and tithe commutation rent-charge, if any, and deducting therefrom the probable average annual cost of the repairs, insurance, and other expenses, if any, necessary to maintain them in a state to command such rent." The intention of the statute is to establish a uniform rule in order to f , , * , . promote uni- for assessing the value ot the occupation. formity. \ It adopts as the standard of value the value of the pro- The standard T Q i i i -ii-i i s * ne v alue to perty to the owners, ana the value to the owner, whether he the owner, occupies the property himself or lets it to a tenant, is to be i- e -> tne rent measured by the amount of rent per annum it would be receive if he (worth to a hypothetical tenant on the terms laid down by the statute as the standard. The particular terms, therefore, on statutor y terms. which any property is in fact let, are_ immaterial^ The intrinsic value of the occupation is not affected by them. If 1 R. v. Adamcs, 2 L. J. M. C. 90 ; 3 R. v. Well*, L. R. 2 Q. B. 542 ; 4 B. & Ad. 61. 36 L. J. M. C. 109. 2 6 & 7 Will. IV. c. 96. o 2 84 HOW RATEABLE. [PART This is the Gross Esti- mated Rental or Gross Value: and deducting the outlay necessary to maintain the property in a state to command the rent, we get the Rateable Value. a particular tenant is bound by arrangement with his land- lord to bear any of the expenses which are not ordinarily in- cident to a yearly tenancy, that does not affect the amount of his rateability ; for it is fixed by the statute, not at the rent he actually does pay, but at the rent a hypothetical tenant holding on the statutory terms might reasonably be expected to pay. 1 This is the Gross Estimated Rental or GrossJValue. But the rent would accurately represent the value to the owner, only if no outlay had to be incurred by him in order to maintain the property in a state to command that rent. The annual expense, therefore, if any, of maintaining the property in such a state, must be deducted from the rent of the hypothetical tenant in order to arrive at the true value of the property to the owner. 2 After deducting these expenses from the gross estimated rental or gross value, the remainder is the Rateable Value.. Implied in the 43 Eliz. c. 2. PROPERTY MUST NOT BE RATED TWICE OVER. To rate the same property twice over would be so dis- tinctly alien to the spirit of the 43 Eliz. c. 2, and so incon- sistent with the fair and equal distribution of the burden of supporting the poor, which it was the object of that Act to effect, that this principle hardly requires to be formally demonstrated, but a few examples of its application may be usefully given. 1 Hay ward v. Brinkworth (Overseers of), 10 L. T. N. S. 608. 2 See R. v. Wells, L. B. 2 Q. B. 542 ; 36 L. J. M. C. 109 ; and the following cases, decided shortly before the passing of the Parochial Assess- ment Act: R. v. Adames, 2 L. J. M. C. 90 ; 4 B. & Ad. 61 ; B. v. Bridge- water Trustees, 9 B. & C. 68 ; 4 M. & R. 143 ; R. v. Tomlinson, 9 B. & C. 162 ; 4 M. & R, 169. III.] NOT TWICE OVER. 85 One of the grounds of complaint in Sir Anthony Earby's Case, 1 was that the landlord was rated as well as the tenant. This, the judges of assize then held, ought not to be done, and in Roivls v. Gells? Lord Mansfield said, " The ^^jora not landlord is never assessed for his rent, because that would to be rated be a double assessment, as his lessee had paid before." 3 received by So it was held that a farmer was not to be rated for his im ' Farmer not necessary stock on the farm, " for that would be in effect to to be rated make the land pay twice for one and the same thing," since the profits of the stock are included in those of the land. 4 Upon this principle also the lord is not rateable for the quit- nor l r< * * rents and casual profits of a manor, for they have already manor for been rated in the hands of the occupiers. 5 Where a farmer was rated for his farm as a whole, and it Tenant of part was contended that a dairyman, his sub-tenant, was also rate- not rateable while his land- able, Lord Ellenborough, C. J., said, " The principle is that the lord is rated estate which has once paid shall not be made to pay again." 6 property. A more modern case, which may be compared with this, is Smith & Son v. Lambeth, 7 where it was sought to rate Messrs, Smith & Son for their bookstalls on the platforms of a railway station. The main question in the case was one of license or demise, but Field, J., inter alia, pointed out that the rail- way company were rated for the station as a whole, saying, " they " (the railway company) " are practically paying rates for the spaces upon which Messrs. Smith & Son have erected, their bookstands. It is now said that Messrs. Smith & Son re also rateable. Except in the case of a joint occupation^ jtbere cannot be two persons liable to be rated for the thine 1 2 Bulst. 354. s #. v- Vandewall, 2 Burr. 991 ; 2 Cowp. 451. R. v. Alberbury, 1 East, at 536 arg. 3 See also E. v. Alberbury, 1 East, 6 R. v. Brown, 8 East, 528. 534. 1 9 Q. B. D. 585 ; 51 L. J. M. C. 4 Dalton's Country Justice, edition 106 ; affirmed C. A'., 10 Q. B. D. 327 ; of 1727, p. 253, c. 73. 52 L. J. M. C. 1, 86 HOW RATEABLE. [PAKT Only one Ry. In R. v. St. Pancras (Vesti*y of), 1 it was held that where a in respertof railway company issues through tickets, for journeys to be through fares, begun on their own line and continued on the line of some other railway company, to whom they afterwards hand over a pro- portionate part of the fares paid to them in the first instance, the sums so handed over are not to be included for rating purposes in the receipts of the first named company, for if they were, the profits of the same line would be rated twice over, " which would be manifestly unjust." The principle is also alluded to in S. E. Ry. Co. v. Dork- ing 3 and R. v. Kentmere? Assessments to be based (a) on present value, and (6) on the assump- tion that the hypothetical tenant will enjoy the pro- perty in the same way as the actual occupier. Property is to be rated ' rebus sic stantibus,' that is to say, : (a) it must be assessed at the value it possesses at the time i the assessment is made ; if it increases or diminishes in value from time to time, there will be a corresponding increase or diminution in the rate, for that must be always propor- tioned to the then existing value, and the value of^jthe property in the past or the future is immaterial. More- over, (6) the hypothetical tenant must be assumedjbo use the_ property in the same way as the actual occupier, and to have the same facility for deriving profit from it, no more and no. less^_ In Staley v. Castleton 4 Blackburn, J., said, "The Legislature intended that the rate should be made upon the rent which might be reasonably expected from a tenant who took the property from year to year rebus sic stantibus." 1 32 L. J. M. C. 146 ; 3 B. & S. 810. 2 23 L. J. M. C. 84 ; 3 E. & B. 491. 3 21 L. J. M. C. 13 ; 17 Q. B. 551. 4 33 L. J. M. C. 178 ; 5 B. & S. 505. III.] REBUS STC STANTIBUS. 87 This principle is very clearly expounded and illustrated in some of the following cases. In Metropolitan Board of Works v. West Ham? Lush, J., (a) Present, says, " The rateable quality of land is not to be determined future, value is by what it once was, or by what it may hereafter become. If a piece of fertile land were to be covered by the ashes of a volcano, or by an inundation, it would not be rateable so long as it continued in that condition. On the other hand, A barren rock ~ i i i .. . , not rateable, in the case or a barren rock, so long as it remains a barren t u t if quarried rock it is not rateable, but the moment it is worked as a quarry would become it becomes rateable. The rateable quality of land must be determined by what it was at the time the rate was made." In JR. v. Mast* Lord Kenyon, 0. J., in deciding that an occupier Rating rises as i, i. j 3 i,- u L J xu land improves, who had improved his premises was to be rated on their im- proved value, said, " The assessment for the relief of the poor ought to be so contrived that each inhabitant should contri- bute in proportion to his ability, which is to be ascertained by his possessions in the parish. Every inhabitant ought to be rated according to the present value of his estate, whether it continue of the same value as when he purchased it, or whether the estate is rendered more valuable by the im- provements which he has made upon it Sup- pose a person has a small piece of land in the heart of a town, which is only of small value, and he afterwards build on it, he must be rated to the poor according to its improved value with the building upon the land. In short in whatever way the owner makes his estate more valuable, he is liable to contribute to the relief of the poor in proportion to that improved estate." In R. v. T. Skingle? where a farmer had been rated on the amount of his rent, which had been fixed seventeen years before, when his lease was granted, the Court 1 L. R. 6 Q. B. 193 ; 40 L. J. M. J 6 T. R. 154. C. **A 3 7 T. K. 549. 88 HOW RATEABLE, [PART and falls as it depreciates in value. (&) Hypotheti- cal tenant to be assumed to use property in same way as existing occu- pier. held it to be too clear to admit of argument, that evidence was admissible to show that the farm had become of greater annual value than the rent reserved by the lease. In R. v. St. Nicholas, Gloucester, 1 Buller, J., said, " If a house to-day is let for 30 per annum, and to-morrow if turned into a shop would let for 50, when it^is turned into a shop it sbjilLbe. jcated- at 50." 3 So where land is turned into a railway, it ceases to be rateable at its value as land, and becomes rateable at its value as a railway, 3 whatever that jnay be, whether less or more than its former value as land, \or if it be devoted to a purpose which renders it incapable of beneficial occupation^ as in JR. v. Metropolitan Board of Works, 41 and Metropolitan Board of Works v. West Ham? Tit ceases to be rateable at alLj These two cases are affirmed in Tyne Coal Co. v. Wallsend, 6 where Grove, J., says, " You do not rate land in respect of its value being enhanced in respect of some possible future and contingent benefit, nor do you reduce its rateability in respect of some future and contingent loss, but you take only its present value, and, as it appears to me, if any other principle were adopted it would lead to endless speculation and difficulty." It is laid down in R. v. Fletton, 7 by Cockburn, C. J., and Blackburn, J., that the true principles according to which the value of the occupation to the hypothetical tenant con- templated by the Parochial Assessment Act, is to be esti- mated, is to assume the continuance of those circumstances _ which constitute the value to the existing occupier, unless 1 Cald. 262 ; 1 T. R. 723 n. 2 See also R. v. Gardner, Cowp. 79, at 84 ; R. v. Attwood, 6 B. & C. 277, at 282 ; 5 L. J. (0. S.) M. C. 47 ; Staley v. Castleton, 33 L. J. M. C. 178 ; 5 B. & S. 505. 3 R. v. 0. W. Ry. Co. (2nd case), 21 L. J. M. C. 84 ; 15 Q. B. 379, at 395 ; R. v. Manchester South Junction and Attrincham Ry. Co., 15 Q. B. 395 n. 4 L. R. 4 Q. B. 15 ; 38 L. J. M. C. 24. L. R. 6 Q. B. 193 ; 40 L. J. M. C. 30. 6 46 L. J. M. C. 185 ; 35 L. T. N. S. 854. 7 30 L. J. M. C. 89 ; 3 E. & E. 450. III.] REBUS SIC STANTIBUS. 89 (it be made to appear that those cirfi"Tnafc|n"P- a nrp a-hont. to. ) undergo a change... It seems to follow from this that a company or a corpora- Restricted tion, or any other occupier, restricted by Act of Parliament from making the profits an ordinary tenant would make, is to be rated on the basis of the profits actually made. Ac- cording however to the most recent case on the subject 1 this rule only applies where the Act has " imposed fetters " on the land itself, as distinguished from the particular occu- pier of it. The following are decisions upon the question : R. v. Long- Cases ivood (2nd case). 2 where waterworks had been constructed wood (2nd by Commissioners under local Acts containing provisions the case.) effect of which was to restrict the profits. It was found by the Sessions that the annual value to the Commissioners was 490, but that the annual value to a tenant not bound by the restrictions in the Acts would be 1100. On those facts it was held that, in assessing the Commissioners, it would be wrong to assume a hypothetical tenant free from restrictions, and that the rate should be on 490 R. v. R. v . Kent- Kentmere? where reservoirs were constructed and main- r tained by Commissioners for the purpose of affording a better supply of water to the mills and manufactories on certain streams, under a local Act authorising the Commis- sioners to levy rates to the amount necessary for paying the expenses of maintenance and interest on the cost of con- struction. It was held that the Commissioners were to be assessed at such an amount as would have been fair if the reservoirs had been a private undertaking Livei^pool Liverpool (Mayor of) (Mayor of) v. Wavertree* where a similar question arose v . Wavertree. with regard to the Liverpool waterworks, and Blackburn, J., 1 Chorlton-upon-Medlock (Overseers) 2 21 L. J. M. C. 215; 17 Q. B. v. Chorlton (Guardians), 51 L. J. Q. 871. B. 458 ; 47 L. T. N. S. 96. Seepage 3 21 L. J. M. C. 13 ; 17 Q. B. 551. 90, infra. 4 2 Ex. D. 55 n. 90 HOW RATEABLE. [PART . Worcester v . Droitwich. said, " The whole question turns on the rule given by the Parochial Assessment Act, which says the occupier is rate- able at what a tenant from year to year will give as the rent, who takes the land subject to the same restrictions as those under which the appellants hold it. Now the tenant would only give such a rent as the restrictions im- posed by the statute would enable him to earn, and the rateable value is to be based upon that rent. The latter case was upheld and followed by the Court of Appeal in Wor- cester v. Droitwich, 1 where it was held that a Local Board, occupying waterworks and charging a low water-rate in ac- cordance with the statute, were rateable only on the profits they actually earned, and not on the amount that might be earned by an occupier unlimited in respect of his charges. Choriton-upon- But in Chorlton-upon-Medlock (Overseers) v. Chorlton (Guar- di /ans )> Z where a Corporation purchased and occupied baths and laundries under the provisions of various Baths and Washhouses Acts, which placed restrictions on the charges the Corporation might make for the use of the same, the Court of Queen's Bench held that the case was not governed by Worcester v. Droitwich, supra, and drew a distinction be- tween cases where the Acts impose restrictions on the laud itself and cases where the restrictions are on the particular tenant of it. The Court held that where the latter is the case the land is to be rated at its value to an unrestricted tenant, Cave, J., saying, " If there is a restriction on the use of the tenement, the market value would of course be affected by it, but where there is simply a restriction on the use that a particular tenant may make of it, I think that it should be disregarded except in the case where the assessment is based on the amount of profit made." Chorlton (Guardians). 1 2 Ex. D. 49 ; 45 L. J. M. C. 81 ; affirmed C. A., 2 Ex. D. 58 ; 46 L. J. M. C. 241. 2 51 L. J. Q. B. 458 ; 47 L. T. N. S. 96. IIL] REBUS SIC STANTIBUS. 9 Although, as a rule, property is to be rated on the assump- Although a tion that the hypothetical tenant would be in the same posi- may f or some tion as the party rated, and would occupy with the property in question all that is occupied with it as an entire concern whole, yet if . . a P ar t of it is by the actual tenant, there is a limitation to this rule in capable of a the case where the subject of rating is a hereditament that ] is capable of a separate and beneficial occupation. Pro- ! ion tha t part perty which fulfills that condition is not allowed to escape from rateability because it is occupied as part of a concern which in its entirety is not rateable ; either because it as a whole produces no profit, or because it falls within one of the classes of property excepted from rateability. For instance, in Mersey Docks and Harbour Board v. Examples of Birlcenhead, 1 it was held that warehouses, &c., occupied in connection with docks were rateable, because capable of () Where f, . . i there is no separate and beneficial occupation, although the dock system beneficial as an entire concern was occupied at a loss. the U The judgments of Quain, J., and Archibald, J., are very as a whole, clear on the subject. Quain, J., said, "I can find no authority to show that property of this kind is not rateable in the way in which the overseers propose to rate it, merely because the Mersey Docks and Harbour Board choose to carry on a losing concern. This is a losing concern in the hands of the present occupiers ; but they choose for some purpose or other to carry it on. That may be so, but I do not understand that that portion of the property which would let to a tenant within the meaning of the Parochial Assessment Act, is not rateable. The ques- , tion is, what would a tenant give for these warehouses by the year, making the usual deductions. The case distinctly finds that there would be a rateable value for those ware- houses and other matters. Therefore, it seems to me that upon that ground these items are rateable. The fact that 1 L. R. 8 Q. B. 445 ; 42 L. J. M. C. 141. 92 HOW RATEABLE. [PART they belong to a concern which as a whole is carried on by a Dock Company at a loss is no answer to the question as to their rateability." Archibald, J., said : " There may be, no doubt, conceivable cases in which the whole property may be so bound together as to render it impossible that one part can be let without another, and that there can be any separate letting. There may be other conceivable cases in which the adjuncts of the property are not lettable in any way, and therefore, if one part of the property is not rateable you could not rate the other. Here the fact is expressly found that these particular properties are capable of a separate beneficial occupation apart from their proximity to, or connection with, the docks. I think, therefore, applying the principle of the Parochial Assessment Act, that as each of these items may have a separate tenant found for them, they are separately rateable." So in R. v. Metropolitan Board of Works, 1 a wharf and pumping station used as part of a drainage scheme were rated, although the sewers themselves were not rateable, be- cause not the subject of a beneficial occupation. A distinc- tion was attempted to be drawn in favour of the pumping apparatus, as being a necessary adjunct to the sewers, and it was contended that as the sewers were not rateable, this adjunct must be exempted as being part of a non-rateable subject. But the Court would not accede to this view. Lush, J., said, " The machinery stands on land which is valuable for occupation, and which would undoubtedly be rateable in the hands of any other occupier ; and its rateable quality cannot be affected by the particular use to which it is applied by the board." or (b) where An example of the rating of a part of a concern that as a the concern as 1 L. K. 4 Q. B. 15 ; 38 L. J. M. C. 24. III.] COMMUNIBUS ANN IS. 93 whole was not of a rateable nature is to be found in Guest v. a whole is not of a rat< nature. East Dean} where surface lands with buildings, &c., occu- of a rateable pied in connection with an iron mine, were rated at a time when iron mines themselves were not rateable. The authority of R. v. Bilston (1st case), 2 if, and so far as, at variance with the rule above laid down, is now destroyed by Talargocli Mining Co. v. St. Asaph, 3 Guest v. East Dean* and Kittow v. Liskeard Union. 5 The description of property rated in Talargoch Mining Co. v. St. Asaph, was a watercourse occupied in connection with a mine, and in Kittow v. Liskeard Union, surface land with buildings, &c., occupied with a mine ; neither of the mines in question being at the time subject to be rated. COMMUNIBUS ANNIS. The principle that property is to be rated at its value Rating Com- ' comtnunibus annis ' is complementary to that of ' rebus sic annis stantibus.' Although by the principle of rebus sic stantibus property i- e - on value i J J in an average is to be rated at its present value, it must be added that pre- year. sent value means, not the value shown by the balance sheet of the particular year, but, the value which under present Hr ni imfitifln^s it would be worth to let in an average year, or taking one year with another. This is the principle of ' communibus annis.' 1 L. R. 7 Q. B. 334 ; 41 L. J. M. C. L. R. 7 Q. B. 334; 41 L. J. M. C. 129. 129. J 5 B. & C. 851. * L. R. 10 Q. B. 7 ; 44 L. J. M. C. 3 L. R. 3 Q. B. 478 ; 37 L. J. M. C. 23. 149. 94 HOW RATEABLE. [PART R.?. Mirfield profits. R. v. Hull exceptional repairs. For instance, the profits of one particular year may have been entirely swallowed up by exceptional repairs, but it by no means follows from that, that the property has no let- ting value. Obviously it would not be so regarded by either landlord or tenant, and corresponding observations may be made as to exceptional profits realised from some cause or other in a particular year. A good illustration of the principle is R. v. Mirfield, 1 where one of the questions submitted to the Court was whether underwoods, which were cut down only in every twenty-first year, were liable to be rated in every year, or only in every twenty-first year, when alone profit was actually derived from them. If rated in each year the rate would naturally be based on the amount arrived at by dividing the profit of the twenty-first year by twenty-one ; if rated in the twenty-first year alone, it would of course be based on the amount of profit then realised. It was held that the underwoods ought to be rated in each year, and not in the twenty-first year alone. In R. v. Hull Dock Co.? the profits of a Dock Company, during the six months for which the rate was made, were entirely absorbed by the expenses of taking down and re- building a part of the Docks, but it was held that they were rateable nevertheless. Lord Ellenborough said, " The question is whether a rate can be imposed in respect of property which is generally rateable, but the profits of which, owing to cer- tain incidental and necessary expenses, have been for a time exhausted. ... It appears to me that this rate is well im- posed, and that the average profits of the company are not liable to be merged in the partial expenditure of any par- ticular period." Bayley, J. "I agree that this rate is well 10 East, 219. 2 5 M. & S. 394. III.] COMMUNIBUS ANNIS. 95 imposed. The case does not state that this property com- munibus annis is not productive of profit, but only that jduring this particular period it was not profitable. . . . iR. v. Mirfield is a clear authority that the principle /which is to govern is whether it be profitable com- munibus annis." Abbott, J. "I think the company cannot relieve themselves from this rate, by showing that, on the occasion of some extraordinary expenditure, dur- ing the particular period for which the rate is made, that which would have gone to the account of profits, has been otherwise consumed." The judgment of Holroyd, J., is to the same effect. In R. v. Agar, 1 Lord Ellenborough said, " No doubt the R- *> Agar. fair average expenses ought to be allowed in estimating the quantum of the rate, but not any extraordinary expenditure which might happen to make the property unprofitable in a particular year : for where it is the subject of annual value, the money so laid out in one year will produce profit in the subsequent years. ... If valuable land in the neighbourhood of a town be covered with buildings in one year, the ex- penses of that year would probably greatly exceed its profits, but the land would not cease to be valuable and rateable on that account." The effect of the principle of ' communibus annis ' with regard to repairs, is that just as in the case of the under- woods, each year is credited with, not the profits actually re- ceived in it, but the amount of profit arrived at by striking an average between profitable and unprofitable years, so, "with_J^gard ^ re P a ^ rs a deduction is to be made in each year, not of the expense of the repairs actually done in it, but of the probable annual cost of the repairs, &c., necessary, 14 East, 256. 9G HO W RATEABLE. [PART Certain ex- ceptions to the rule of rating on average value. Brickfields where royalty paid. in the words of the Parochial Assessment Act, to maintain the property in j^state to command.jhe rent. To the principle of 'communibus annis,' as stated on page 93, there is an exception in the case of certain kinds of property, such as brickfields, cemeteries and quarries, of which it is easier to give examples than a definition. The occupier of a brickfield consumes the brick earth once for all, and so is con- stantly diminishing the corpus ofthe property and its capacity to yield a profit ; so, in the case of a cemetery, the more graves sold the less remain to sell. Such properties do not, as a whole, produce a recurring annual crop of profits, but their capacity for yielding profit is limited to one crop from each portion of the whole, and the profit to the tenant in a particular year depends on how much of the crop he chooses to reap in that year. In M. v. Westbrook and R. v. Everest, 1 is decided the method in which brickfields are to be rated, when, as is often the case, the occupier pays a royalty on the number of bricks actually made, in place of, or in addition to, a fixed rent. In the first place it was contended that a brickfield ought not to be rated above the value of garden ground or agricul- tural land in the parish. This contention is disposed of at once by the principle of ' rebus sic stantibus,' which requires that a property which is at the time of the rate used as a brickfield, should be rated at its value as a brickfield. Then came the question, how was that rateable value to be estimated ? Was it to vary with the number of bricks on which royalty was paid in each year, or not ? It might be argued that on the principle of ' communibus annis ' the value of the brickfield was, taking one year with another, always the same, and that the profits of a particular year were not to be regarded ; on the other hand it might be said on the 1 16 L. J. M. C. 87 ; 10 Q. B. 178. III.] COMMUNIBUS ANNIS. 97 principle of 'rebus sic stantibus' that, as it ought to be assumed in the absence of evidence to the contrary, that the circumstances which constitute the value to the occupier will continue to exist unaltered, therefore the basis of the valua- tion should be the royalty (and other rent if any)v,of the past Rated on year.__Jhe latter method is the one to be adopted, and the following example suggested in the judgment shows that it is an y) * the preceding year, the fairer one. Suppose two brickfields of the same size, which if worked so as to be consumed in ten years by equal working in each year, would produce 1000 per annum each, on which suppose the rate would be 10 ; then in ten years each would contribute 100 to the parochial authorities. But if one of them be so vigorously worked as to be exhausted in a year, the produce in that year will have been 10,000, and if the rate be only 10 for that year there will have been a valuable occupation escaping as to nine-tenths, the rate entirely ; and in succeeding years the value may be nothing, all the brick- earth having been worked out. But no injustice would be done, if in every year the occupier were rated according to the actual value in that year, and this is what the overseers must estimate as well as they can. The amount of rent and_ royalty is not conclusive of the actual value, it is only evi- dence on which to estimate it. For in one of these cases the amount of the rent and royalty for the year was 159, and the sessions had found that the rent a tenant might be ex- pected to give without liability to royalty would be 100. Lord Denman, C. J., said, " It may well be that, although at when rating the end of the year the lessee has made so many bricks that he can afford to pay 150 in royalty to his landlord, he could allowance may be made for not prudently at the beginning of the year contract at all risk. events to pay more than 100 ; and if so, the latter, rather than the former, will be the sum at which the land may reason- ably be expected to let from year to year ; " and the Court accordingly held that the 100 and not the 159 was the true basis of the rateable value. " 98 Cemetery. HOW RATEABLE. [PART So in R. v. Abney Park Cemetery Go., 1 where a cemetery company made profits by disposing of plots of ground for graves, and they were rated on the basis of what they actu- ally received in the year preceding, the assessment was upheld by the Court of Queen's Bench ; Blackburn, J., saying, " No injustice will be done if the Company are rated in every year according to the value which a hypothetical tenant would give for the occupation in the preceding year, and according to this rule the Company's receipts in one year will govern the rateable value of the cemetery in the next ; " and Quain, J., " I think this case cannot be distinguished from R. v. Wesibrook? The principle of that case applies, and shows that the price of plots of ground sold in one year cannot be spread over several years for the purpose of ascer- taining the rateable value." What meant by 'enhanced value.' Follows from making the ENHANCED VALUE. The expression ' enhanced value ' is sometimes used in reference to enhancement of the value of the occupation within the parish by circumstances outside the parish, and sometimes in reference to enhancement of the value of the occupation by something which is not per se rateable, but which depends on the occupation, or of which the occupation is the ' meritorious cause/ It is enhancement in the latter sense only that is now to be discussed. Enhancement of the former description is dealt with infra, under the title of Since the measure of the rateable value of a hereditament 1 L. R. 8 Q. B. 515 ; 42 L. J. M. C. 124. 16 L. J. M. C. 87 ; 10 Q. B. 178. III.] ENHANCED VALUE, 99 is the rent which it might reasonably be expected to fetch, reasonable rent and since that rent would be proportioned to the benefits rateable 8 value, the tenant would derive from the occupation, it follows that any profits which the tenant would receive in virtue of the occupation must be taken into consideration in making the assessment. It matters not that those profits are of such a nature as to 1 r- A be not rateable per se. \ If they are due to the occupation they are to be taken into consideration in estimating the value of the occupational The practical result of this is that is an indirect in many cases trade profits are indirectly^ brought under * contribution to the rates ; wJjgn, that is, the occupation of something that is rateable per se is the meritorious cause of their existence, and so far as, their existence would influence the rent^ obtainable in the market for the occu- pation. Lord Denman, C. J., said, in R. v. The Grand Junc- tion Ry. Co.} " If the ability to carry on a gainful trade on land adds to the value of the land, that value cannot be excluded on the ground that it is referable to the trade," and in R. v. G. W. Ry. Co.? he says that although the profits of trade carried on by the occupier of land upon it cannot be made directly the subject of the rate assessed in respect of such occupation, and the value of the occupation alone is the proper subject of rating, yet in that value is to be included whatever at the time forms part of it, whether permanently or not, and from whatever source derived, and therefore of course, not the less so although derived in any proportion from the fact of the trade being so carried on upon it. It must be borne in mind that trade profits, how- ever directly arising out of the occupation, cannot be directly rated ; the rate must be upon something which is per se 1 13 L. J. M. C. 94 ; 4 Q. B. 18. 2 15 L. J. M. 0. 80 ; 6 Q. B. 179. H 2 100 HOW RATEABLE. [PART rateable, but in assessing anything that is so rateable, jregard mayibe had to the fact that it is enhanced in value by being available for earning profits. For instance, a railway com- Pjmyjifi practically rated on profits, but it is solely in the capacity of an occupier of land that it is rateable at all Different Now although a railway company is practically rated on results in the . , case of a its actual profits, the profits made by an ordinary tradesman, of anYrdinary wno com "d remove to another shop next door or in the next tradesman. street and still make the same profits as before, do not affect the amount of his assessment. His profits are not due to the occupation of a particular hereditament, but the profits of a railway company are attached to the particular here- ditaments they occupy. The question whether profits are to influence an assess- ment, is in other words would they influence the rent \\ and that depends on whether they are incident and appur- | tenant to the occupation, 1 or in other words on how far the I particular hereditament has a monopoly of the facilities of ^earning them. The rent a tenant will give depends on two things ; first, What profit will he make ? and second, tion by profits, How many hereditaments possessing similar advantages are and in the other by law there in the market ? In R. v. L. & N. W. Ry. Co., 2 Black- demand.| ** burn, J., said, " In letting a thing from year to year the rent would be regulated by two matters, on the one hand, by the benefit the tenant would be likely to derive from the occupation, because he would not give more than that ; on the other hand, by the nature of the property, such as its local situation, or how many persons there are who could supply him with an equally eligible thing and be willing to let it to him : for while he would not be willing to give more 1 R. v. Grand Junction Ey. Co., 13 L. J. M. C. 94 ; 4 Q. B. 18 ; A v. G. W. Ry. Co., 15 L. J. M. C. 80 ; 6 Q. B. 179. 2 L. B. 9 Q. B. 134 ; s. c. R. v. Bed- ford Union, 43 L. J. M. C. 81. III.] ENHANCED VALUE. 101 than he expected to make by it, he would not even give that if he could get a similar thing at a lower price." 1 The two following cases are good illustrations. In R. v. North Ayles- R. v. North ford Union? the occupier of a chalk-pit, Avho was also a union. cement manufacturer, realised large profits by turning the chalk into cement at a neighbouring and separately rated factory. There were several other chalk -pits in the neigh- bourhood, the occupiers of which used the chalk for ballast- ing and other purposes much less profitable than cement making. It was held that the exceptional profits of this particular occupier could not be taken into consideration in rating him for the chalk-pit, because they would not influence the rent of the hypothetical tenant, who could get equally good chalk in the neighbourhood at a rent based on the lower profits of ballasting. On the other hand, in R. v. R. v. VerralL Verrall, 3 it was held that the profits actually received by the occupier of a race-course from the sale of tickets for the grand stand, &c., were to be taken into consideration in assessing him. No reasons were given for the decision, probably because it is obvious that in, the case of a race- course the actual profits made would be the basis of the hypothetical tenant's rent, since they are incident to the occupation of the particular piece of land on which the races uro hold. These two cases are not in conflict with each other ; under the circumstances existing in the former, evi- dence of the actual profits made would not have been relevant to the question of what was the value of the hereditament to let ; but under the circumstances of the latter case such evidence was relevant to that question. 4 We have seen that the principle of enhanced value is now Principle of directly deducible from the statutory rule that the rent U Act. 1 See R. v. Tynemouth, 12 East 46, 4 See Clark v. Fisherton Angar, and infra, page 103. 6 Q. B.-D. 139 ; s. c. Clark v. Alder- 2 37 J. P. 148. bury Union, 50 L. J. M. C. 33. 3 1 Q. B. D. 9 ; 45 L. J. M. C. 29. 102 HOW RATEABLE. [PART Authorities on enhanced value previous to P. A. Act R. v. Miller. II. i'. New lliver Co. Keuipe v. S^ence. which a hereditament might be reasonably expected to fetch is the measure of its rateable value, but there are authorities long previous to the Parochial Assessment Act, 1 which decide that the rateable value of land is not to be limited to its value as land, but is to include all profits arising out of, or appurtenant to, the occupation. - In R. v. Miller? certain lands and buildings at Chelten- ham containing a mineral spring were let for ^100 per annum, the value of the lands and buildings being only 20 per annum, and the remaining 80 being paid for the mineral water. The tenant was assessed for the premises, under the description of "lands," upon the full rent of 100 per annum, and the rate was held to be good. Lord Mans- field, C. J., said, " Nothing can be plainer 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 100 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" R. v. Miller was followed in R. v. New River Co., s where a rate was imposed on land including a spring, as being of the annual value of 300 ; the land alone being of the annual value of 5. Grose, J., said, "I cannot distin- guish this case from the common case of land on which corn grows. In such case the land is assessed according to its value, and that value is estimated according to that which it produces : so here the land produces a spring, and the value _of it is to be computed according to the benefit which the spring produces to the Company." In Kempe v. Spence* De Grey, C. J., suggested that possibly an estate might be assessed at a higher amount as having a right of 1 6 & 7 Will. IV. c. 96. : Cowp. 619. 3 1 M. & S. 503. 4 2 Wm. Bl. 1244. III.] ENHANCED VALUE. 103 common annexed to it^ although a right ofcpmmon_being an incorporeal hereditament would not be per se rateable. In R. v. Tynernouth, 1 Lord Ellenborough, C. J., while R. v. Tyne- i.i. , . . mouth. deciding that a rate on tolls collected from ships passing a certain lighthouse was bad, intimated that the tolls might have been indirectly rated by laying a rate on the lighthouse itself, whose light was the meritorious cause of earning the tolls, if it were in consequence let at a larger rent. In R. v. Brad- R. v. Bradford, 3 a canteen in barracks was demised at a rent of 15 for the building and 510 for the privilege of opening it as a canteen. It was held that the two sums together, were in substance but one entire rent payable for the occupation of a real tenement and^for the enjoyment of- the advantages belonging to it, and therefore that the rate- able value was to be based on the entire amount. The case of R. v. Coke 3 does not conflict with the principle of R. v . Coke. R. v. Bradford, because it was there considered that the dues did not in fact arise from the occupation of the parti- cular building, but were in virtue of a franchise or privilege under which the proprietor of the lighthouse was at liberty to display the light either from that or any other house. In R. v. Liverpool Exchange Co., 41 the proprietors of the R. y . Liverpool Liverpool Exchange, who were incorporated as a Company Exclian g e Co - by Act of Parliament, maintained a newsroom, to which, in accordance with the Act, non-proprietors were admitted on payment of an annual subscription. The question was whe- ther the room was to be rated at the ordinary value of such a room, or whether the revenue derived from the subscriptions of non-proprietors was to be taken into account. Littledale, J., after referring to the cases said, " These cases establish the principle that the advantages attendant upon a building, 1 12 East 46. 3 5 L. J. (0. S.) M. C. 8 ; 5 B. & C. 797. 2 4 M. & S. 317. 4 3 L. J. M. C. 107 ; 1 A. & E. 465. 104 'HOW RATEABLE. [PART Tied bouses. Alison v. Monk wear- mouth : Lord Campbell, C. J., and Crompton, J. Erie, J., diss. either in respect of its situation or the mode of its occupa- tion, are to be taken into account in estimating its rateable annual value, wherever those advantages would enable the owner of the building to let it at a higher rent than it would otherwise fetch ; but not to profits of a trade carried on in the building and not enhancing its rent," and on the ground that the revenue derived from the subscriptions was an advantage attached to the room by the Act, he held that it was to be taken into account in making the assessment. The question whether the rateable value of a brewery is to be regarded as enhanced by the fact that certain public- houses are bound to take their beer from it, has given rise to some difference of judicial opinion. In Alison v. Monkweat^moiiih Shore, 1 the occupier of a brewery paid a rent of 300 for the premises, 50 for the use of fixtures, and a further rent of 150 for the goodwill and trade of 33 ' tied ' houses. It was held by Lord Camp- bell, C. J., and Crompton, J., (Erie, J., dissenting), that the 150 was to be taken into account in estimating the rate- able value of the brewery. Lord Campbell, C. J., and Crompton, J., considered that the custom of the tied houses was in fact attached by lease to the occupation of the brewery for seventeen years, and therefore was to be considered as one of the advantages incident to the occupation : and that, provided such an advantage was at- tached to the occupation, it was immaterial how it became so attached, whether by contract as in this case or by prescrip- tion as in the case of the soke mill referred to in argument. Erie, J., on the other hand, took the view that the 150 was paid in respect of what was not a legal appurtenance to the land, but only a mere personal contract which would not, as in the case of the soke mill, pass under a demise of the land with its appurtenances. ' 23 L. J. M. C. 177; 4 E. & B. 13. III.] ENHANCED VALUE. 105 But in the subsequent case of Sunderland (Overseers Sunderiand of) v. Sunderland Union 1 it was held by Erie, C. J., and v Sundeiland Smith, J. (Byles, J., dissenting), that the rateable value Union, of public houses that were obliged by contract to take their beer from a particular brewery, and which paid a less rent in consequence, was not thereby decreased nor that of the brewery increased. Erie, C. J., and Smith, J., rested their decision on the Erie, C. J., ground that although a tied public-house pays less money ^d^ 1 " 1 *^ rent than a free house, that is because it pays part of the rent in the shape of the landlord's profit on the beer he sells, and the value of the occupation cannot be altered by the method of paying the rent. Byles, J., in dissenting from the judgment of the majority Byles, J., diss. of the Court, said that part of the value of a tied house is transferred to the brewery just as part of the value of some of the ornamental squares in the metropolis is by private contracts, under which they must for a long term of years be used only as squares, transferred to the surrounding houses, and there included in the increased rateable value which the ornamental square confers on the houses that surround it. There seems to be a conflict between these two cases. It Conflict of is not for us to say which view is the more correct one, but c for a fuller statement of the arguments on either side the reader is referred to the reports. One judge dissented from the judgment of the Court in each case. But besides Enhancement of the value of the occupation Enhancement by Trade Profits there is what may be called Enhancement y by Fixtures. Ifjthe owner of a manufactory, for instance, annexes to the freehold, machinery which adapts it for the 1 34 L. J. M. C. 121 ; 18 C. B. N. S. 531. 106 HOW RATEABLE. [PART Articles in- termediate between office furniture on the one hand, and machinery annexed to the freehold on the other. Whether essen- tial to the business. Whether intended to remain per- manently attached for improvement of the building, or merely for more con- venient use as a chattel. carrying on of a particular industry, and demises it in thai condition, it is obvious that the value of the occupation to a tenant is something over and above the value of a building of four bare walls. On the other hand it is also obvious that mere movable office furniture which each tenant puts in when he comes, and takes away or sells to his successor, when he leaves, cannot be regarded as an enhancement of the value of the occupation. But between these two extremes there is an intermediate class of articles, which though not annexed to the freehold so as to form part of it, yet are to some extent attached to it, and which would in practice be commonly let with the building. It is sometimes a nice question whether articles of this intermediate description are to be regarded as an enhancement of the value of the occupation or not, and when as frequently happens; for instance in the case of a railway or gas company, there never has been a letting, because the same persons are both owners and occupiers, there is a need of some recognised principle- on which to determine whether such articles are to be taken into con- sideration or not in making the assessment. We recur in the first place to the rule that the^rent oj^ hypothetical tenant is the measure of value, and we ask with regard to any particular article, whether the use of it would be one of the advantages conferred on the tenant in return for that rent ? Would the article be let with the hereditament on a , demise to a yearly tenant ? We are assisted in answering that question by considering whether it is essential to the carrying on of the particular business for which the heredi- tament is intended ; and when we find that the article or machine is to some extent attached to, though not so far as to render it part of, the freehold, we test the nature of the attachment by inquiring whether it was intended at the time of the attachment that the article should permanently remain attached to the building, and whether the attachment was_ made with a view to the improvement of the building, or III.] ENHANCED VALUE. 107 merely for tbe__more convenient use of the article aa a |J chattel I \ The cases on the subject are very consistent in the general Cases, rules they establish, if not so uniform in their application to particular articles. The first case bearing on the subject is R. v. St. Nicholas, R- St. Nicholas, Gloucester. 1 The Corporation of Gloucester had erected a Gloucester, weighing machine in the street by the side of a house, so that part of the machine was within the house, and they were rated as occupiers of a " machine-house." The question was whether the assessment was to be made on the value of the house independently of the weighing machine, or whether the house was to be regarded as enhanced in value by the profits derived from the weighing of waggons, &c. It was held that those profits were to be taken into consideration in making the assessment, on the ground that the machine was in fact annexed to the freehold, and that the machine and house were one entire thing. In R. v. Hogg, 2 the question was whether a building called R. v. Hogg. " The Engine House " was to be rated at the mere value of the building or as enhanced in value by the machine within it. It was held that the rating was to be on the enhanced value on the ground that the case was governed by R. v. St. Nicholas, Gloucester, and . also on two other grounds (not material to the present subject of discussion), namely that the house and engine were in fact let together as one entire subject ; (which cannot be regarded as by itself a conclusive reason, or as more than evidence as to whether they would be let together to the hypothetical tenant ;) and that personal property was rateable by law and ought to be rated where practicable ; a reason which has lost its force since the exemption of personal property from rateability. 1 Cald. 262 ; 1 T. R. 723 n. z Cald. 266 ; 1 T. R. 721. 108 HOW RATEABLE. [PART R. v. Morri- son. R. v. Leith. In R. v. Leith, 1 the question (under a local Act containing the words "tenements, hereditaments, or premises") was whether a landing place was to be jegarded as enhanced in. value by a floating pier made fast to the wall of the building A on the shore. It was held that it was, on the ground that it would be difficult to say the pier was not part of the pre- mises, and even if it were not it was an accessory to them. But in R. v. Morrison? it was held that a shipbuilding- yard was not to be regarded as enhanced in value by a floating dock, which was moored opposite the yard when a vessel was cradled in it for the purpose of being repaired. This case was distinguished from R. v. Leith on the ground that the dock was not permanently fixed to the yard. Lord Campbell, C. J., said it had no necessary connection with the yard, and the two might easily be separately occupied ; which distinguishes it from the cases of the machine-house and the engine-house, R. v. St. Nicholas, Gloucester* and jR. v. Hogg* In R. v. Birmingham and Staffordshire Gas Co., 5 Lord Denman, C. J., says it is of itself sufficient to invalidate the rate, that houses to which machinery is attached are not rated ac- cording to the increased value arising from the machinery, and that "even where the machine has not been attached, a house has been held rateable in respect of it, if the value of the house was increased by the machine ; " that is to say, since value must mean value to let, if the use of the machine is one of the advantages to be enjoyed by the tenant in virtue of the occupation. R. v. Quest. In R. v. Guest f Lord Denman, C. J., lays down the rule as follows : "That real property ought to be rated according to its actual value, as combined with the machinery attached R. v. Bir- mingham and Staffordshire Gas Co. 1 21 L. J. M. C. 119 ; 1 E. & B. 121. 2 22 L. J. M. C. 14 ; 1 E. & B. 150. 3 Cald. 262 ; 1 T. R. 723 n. 4 Cald. 266 ; 1 T. R, 721. 5 6 L. J. M. C. 92 ; 6 A. & E. 634. 6 7 L. J. M. C. 38 ; 7 A. & E. 951. III.] ENHANCED VALUE. 109 toJVwithout considering whether the machinery be real or pei-sonal property so as to be liable to distress or seizure under a fieri facias or whether it would descend to the heir or executor, or belong at the expiration of a lease to landlord or tenant." The rule as here laid down clearly applies the doctrine of enhancement to machinery not so attached as to be part of the freehold. In R. v. Southampton Dock Co., 1 the Sessions had found R. v. South- , ,, ,., ampton Dock as a fact that certain cranes, steam engines, and other like Co. ponderous machinery in the Southampton Docks, although attached to the freehold, were capable of being detached from it as easily and with as little injury to it, as other fixtures put up for the purposes of the trade of the tenant and usually valued as between incoming and outgoing tenant, and it was contended that they ought to be treated as stock in trade and not as an enhancement of the value of the occupation. " But," said Lord Campbell, C. J., in delivering the considered judgment of the Court, "this is a rate upon buildings to which machinery is attached for the purposes of ..trade :" and, following and affirming R. v. Bir- mingham and Staffordshire Gas Go? and R. v. Guest? he held that the machinery was not to be placed under the head of stock in trade and tenant's capital, but was to be taken into account in rating the realty. In R. v. North Staffordshire Ry. Co.* a similar question R. v. North was raised with regard to machinery, &c., belonging to R y . Co. 8 a railway company, and Cockbum, C. J., in delivering the judgment of the Court, said, " The articles to which such a question may have reference may be divided into three classes first, things movable, such as office and station 1 20 L. J. M. C. 155 ; 14 Q. B. 3 7 L. J. M. C. 38 ; 7 A. &E. 951. 587. 4 30 L. J. M. C. Cd; 3 E. & E. 2 6 L. J. M. C. 92 ; 6 A. & E. 634. 392. 110 HOW RATEABLE. [PART J^U R. v. Lee : Cockburn, C. J. tfM6*~t^ Blackburn, J. furniture ; secondly, things so attached to the freehold as to becojne^part of it ; and thirdly, things which though capable - of being removed, are yet so far attached as that it is in- tended that they shall remain permanently connected with_ the railway or the premises used with it, and remain per-. manent appendages to it as essential to its working. It is clear, that in respect of the first class of articles a deduction should be allowed. It is equally clear that no deduction ould b e allowed as to the second. As to the third, the question is finally settled by the decision of this Court in the case of The, Queen v. The Southampton Dock Co." l In R. v. Lee? a similar question was raised with regard to the plant of a gas company. The exhaustive judgments of Cockburn, C. J., Blackburn, J., and Lush, J., re-affirmed R. v. Southampton Docks and R. v. North Staffordshire Rl. Co. and further elucidated the subject. Cockburn, C. J., after referring to Walmsley v. Milne? said, " So here, we cannot doubt that when these purifiers, and gas-holders, and the steam engine and boiler, which are absolutely essential to the working of the manufactory, were erected, it was in- tended that they should remain where they were for the benefit of the inheritance. I therefore think, that upon both the grounds which I have specified, the articles in question are so connected with the freehold as to show an intention that they should remain permanently attached, and that the Sessions were wrong in allowing deductions in respect of them." Blackburn, J. : " The rule laid down has been, that where things are attached to the premises so as to become part of them, although there may be a right to remove them they are to be looked upon as part of the premises. But if 1 20 L. J. M. C. 155 ; 14 Q. B. 587. : L. R. 1 Q. B. 241 ; 35 L. J. M. C. 105. 3 29 L. J. C. P. 97 ; 7 C. B. N. S. 115. III.] ENHANCED VALUE. HI anything is fastened to the premises so as still to remain a chattel, though fixed and steadied for the purposes of use, it never ceases, to use the phrase in the case of Hellawell v. Eastwood, 1 to have the character of a movable chattel, though fixed for the purpose of having the enjoyment of it. The ordinary illustration is the case of a mirror, which is screwed to the wall, but still remains a movable chattel, and is no part of the premises. On the other hand a grate which is built into a chimney, although it is capable of being removed, would still be fixed to the premises, so as to be part of them, and therefore part of what would be considered as let to the hypothetical tenant and for which he would pay rent. In Hellawell v. Eastwood} the Court were dealing with machinery which was fixed, screwed, and attached to the premises, and they laid down the rule as being a matter of fact depending upon the circumstances in each case, but Tests the ... - - mode and the principally upon two considerations, first, the mode of object of the annexation to the soil or fabric of the house, and the extent annexatlon - to which it is united to them, whether it can be easily removed, integre, salve et commode, or not without injury to itself or the fabric of the building; secondly, and this is worthy of attention, on the object and purposes of the annexation, whether it was for the permanent and sub- stantial improvement of the dwelling ; in the language of the Civil Law ' perpetui usus causa,' or in that of the Year Book 'pour un profit del inheritance,' or merely for tem- porary purposes or the more complete enjoyment and use of it as a chattel. In the case before them the Court thought that the articles in question were only put up, and fastened for the temporary use and enjoyment of them as chattels ; but they clearly and distinctly pointed out two important elements for consideration : first, the degree of annexation; 1 20 L. J. Ex. 154 ; 6 Exch. 295. 112 'HOW RATEABLE. [PART Lush, J. R. v. Hal- stead. and secondly, the^object of the annexation. Was the article attached for the improvement of the inheritance or for the enjoyment only of the article itself?" Lush, J. : " I apprehend that the premises to be rated are to be taken as they are, with all the fittings and appliances by which the owner has adapted them to a particular use, and which would pass as part of the premises if they were demised to a tenant. That seems to me to express what is laid down in the two cases which have been referred to. "Wherever such fittings and appliances have become so far a part of the premises as to pass by a demise of the premises, they form a part of the rateable subject of the inheritance for the purpose of rating. When we have to apply this test to any particular state of circumstances, the question is not what a tenant might remove, not what might be taken in . execution under a writ against the owner, but what, as betiveen the landlord and tenant, would pass as part of the \premisgs." R. v. Halstead l in which the question was whether certain machinery in a silk factory was to be taken into account in rating it, further illustrates the principles laid down in the preceding case. Cockburn, C. J., said, " According to the recent cases, if the chattels are so fixed to the freehold that on a demise they would pass with the premises, then they may be taken as part of the rateable value. But here the Sessions find they are not so attached to the freehold, but are merely fixed with a view to steady them. Therefore the finding concludes the case. Blackburn, J., said that the machines, &c., " may be severable by the sheriff or by any one else, but so long as they are attached to the building so as to be part of the premises, they would be liable to be taken into account. But in saying they are attached, we 1 32 J. P. 118. HI.] ENHANCED VALUE. 113 must look to the character in which they are so attached, whether it is in the sense of being accessions to the fixed pro- perty, or merely attached in the sense of steadying the machines while using them. Thus it plainly appears from the case that they are fixed merely to steady them and in no other sense, and therefore I think they form no_art of_ the rateable value. Tn Chidley v. West Ham, 1 where the question was raised Chidley . with regard to the machinery and fixtures of a distillery, Blackburn, J. said, " Whatever is fixed to the j;e!ty so as to pass as landlord's fixtures in a demise of the premises, must be taken to be part of the premises for the purpose of ascertaining its rateable value. The question of what kind of fixtures comes under this description is treated at length in Holland v. Hodgson?" Lastly, in Lainq v. Bishopwear mouth? where the ma- kungf- J ' . . Bishopwear- chinery in question was that of a ship-building yard, Cock- mouth, burn, C. J., after saying that the law was settled by the above-mentioned cases, went on to say, " Applying the rule established by these decisions to the present case, it appears to us, after having carefully considered the character of the machinery in question, that the whole of it, though some of it may be capable of being removed without injury to itself or the freehold, is essentially necessary to the ship-building business to which the appellant's premises are devoted, and must be take/I to be intended to remain permanently attached to them so long as those premises are applied to their present purpose." Throughout the cases there is an entire uniformity of principles. For details as to the particular items brought before the Court, reference must be made to the cases themselves. 4 1 32 L. T. N. S. 486 ; 39 J. P. 310. 3 3 Q. B. D. 299 ; 47 L. J. M. C. 41. 2 L.R.7.C. P.328; 41L.J.C.P.146. 4 Other cases bearing on tho i 114 HOW RATEABLE. [PART The parish the unit of area. When part only of a property is within a particular parish how to be rated. Parochial principle, deducible from the 43 Eliz. c. 2. THE PAROCHIAL PRINCIPLE. The 43 Eliz. c. 2, constituted the parish the unit of area for the operation of the Act. It provided that the churchwardens and overseers of each parish should raise the money required for the relief of the poor by taxation of the inhabitants and occupiers of rateable property within the parish. One consequence of the parish being the unit of area is that where rateable property extends into more than one parish, each of the parishes into which the property extends must rate the portion within it and that portion only. The Parochial Assessment Act prescribes that each rateable here- ditament is to be assessed at its net annual value. The portion of a property that is within a particular parish is for rating purposes a separate hereditament ; the Parochial Assessment Act requires it to be assessed at its net annual value, and its net annual value will be based on its net * _- - " profits. The parochial principle requires then that^the portion of a property within a particular parish shouldbe rated in pro- portion to the net profits earned by that portion of the property. The Parochial Assessment Act, now that it exists, is a convenient step in the argument, but that Act did not create any new principle, it merely declared what was already involved in the 43 Eliz. c. 2, and it was recognised before the Parochial Assessment Act was passed 1 that the parochial subject are E. v. Granville (Lord) 9 B. & C. 188 ; . v. Haslam, 17 Q. B. 220 ; Haley v. Hammersley, 30 L. J. Ch. 771 ; 3 De Gex, F. & J. 587 ; Staley v. Castleton, 33 L. J. M. C. 178 ; 5 B. & S. 505. See also Chitty's Statutes, 4th ed., Vol. V., sub. tit. Poor-notes to 43 Eliz. c. 2, pages 238, 239. 1 JR. v. Kingswinford, 7 B. & C. 236 ; s. c. R. \. Dudley Canal Co., 6 L. J. (0. S.) M. C. 3 ; R. v. Lower Mitton, 8 L. J. (0. S.) M. C. 57 ; 9 B. & C. 810 ; R. v. Oxford Canal Co., 10 B. & C. 163 ; 5 M. & E. 100. III.] PAROCHIAL PRINCIPLE. 115 principle as above laid down was one of the necessary developments of the parochial principle in its simplest form, namely, that the parish is the unit of area. Bayley, J. says in R. v. Low&r Mltton i 1 "It is now fully established that the proprietors of a canal or navigation are rateable as occupiers of the land covered with water in the particular parish in which the canal lies, and it follows from thence, and it was so decided in R. v. Kingswinford? that they are rateable in each parish in proportion to the profit which that part of the land covered with water which lies in the parish produces." Now where a property extends into different parishes it Mileage would be a very convenient way of arriving at the rateable sys value of the part in a particular parish, to first ascertain the net profits of the whole, and then to apportion to the part in the parish in question a share of those net profits in the ratio of the length or area of that part to the length or area of the whole, and to base the rateable value on the amount of net profits so apportioned. In the case of railways, canals, and such undertakings, this method would avoid many intri- cate calculations, and it was at one time contended that the rateable value of the part of the line in the parish should be ascertained by this method, which is called the mileage system. But unless it were the case that the receipts and not allowable, outgoings were respectively uniform in amount on every mile of the line, or that all the receipts were for the use of the line as a whole and all the expenses were incurred with respect to the line as a whole, the result arrived at by the mileage system would not represent correctly the net profits of the part of the line within the parish in question, and con- sequently not the rateable value. In practice the net profits do vary in different places, but under the mileage system a mile 1 8 L. J. (O. S.) M. C. 57 ; 9 B. & C. 2 7 B. & C. 236 ; s. c. A v. Dudley 810. Canal Co., 6 L. J. (0. S.) M. C. 3. I 2 116 HOW RATEABLE. [PART R. v King- swinford. of line in a part of the system where the profits actually earned are greatest, would be assessed at the same amount as a mile in some other part where the profits actually earned are least, although the net annual value of the former would not be the same as that of the latter. This would not be in accord- ance with the parochial principle which requires the rateable value to be based on the actual profits of the part in ques- tion, and the Courts have refused to recognise the mileage system. In R, v. Kingswi/nford? where one-twelfth portion of a canal was within the parish in question, it was contended that that portion should be rated on one-twelfth of the net profits of the whole canal ; but the Court held that it was to be rated on the actual- amount of profits made upon it, and not on a part of the whole amount earned along the whole line of the canal in proportion to the length of the part of the canal in the parish. Bayley, J. said, " I am of opinion that the Company ought to be rated in each particular parish in proportion to the profit which they derive from the land there used by them for the purpose of the canal. If a canal runs through six different parishes, and there is the same traffic through the whole line of the canal, every part of the canal will earn an equal proportion of the tolls. But it may happen that in that part of the canal situate in one parish there may be double or treble the traffic which there is in any other of the six. Why are the other parishes to have any part of the tolls earned in that parish ? The land in those parishes contributes nothing towards earning the sum derived* in the other parish from the use of the land there. The true principle is this : a canal company is to contribute to the relief of the poor in each parish through which the canal passes in proportion to the profit which they derive 1 7 B. & C. 236 ; s. c. R. v. Dudley Canal Co., 6 L. J. (0. S.) M. C. 3. III.] PAROCHIAL PRINCIPLE. 117 from the use of their land in that parish. If the profit arising from a given quantity of land vary in different parishes, the rate must vary in the same proportion." Again, in R. v. R. v. Oxford The Oxford Canal Co., 1 Bayley, J. says : " The Company are rateable in each parish for the net annual profit of the portion of the canal lying in that parish ; in other words, for what the canal in each parish earns." It has also been held that it is not permissible in rating a Water Company to Chelsea water- divide the rateable value of the whole among the different p u t ne y. parishes according to the quantity of land occupied by the apparatus in each parish. 2 It was however attempted as railways became developed, with their necessarily intricate accounts, to obtain a recog- nition of the mileage system as a legitimate one in their case. It was urged that the mileage system was a simple and convenient one, while the parochial principle was so inapplicable to the circumstances of railways that it was scarcely practicable to act upon it ; but it was finally decided Finally decided by the judgment of the Court in the three cases of R. v. principle must The London, Brighton, and South Coast Ry. Co.-,* R. v. e The South Eastern Ry. Co. ; 3 and R. v. The Midland Ry. Co., 3 that the parochial principle must in no case be de- parted from. The mileage system of calculation may however be ap- When use may .. . be made of the plied where the profits are uniform on every part 01 the mileage line, 4 or in the apportionment of expenses (such as those s y stem - of 'central superintendence'), which, though arising locally, are incurred in respect of the line as a whole. 5 For in such cases as these the results of the mileage system and the rom . 1 10 B. & C. 163 ; 5 M. & R. 100. 4 R. v. Woking, 5 L. J. M. C. 17 ; 2 Chelsea Waterworks Co. v. Putney, 4 A. & E. 40. 29 L. J. M. C. 236 ; s. c. R. v. Putney s R. v. Great Western Railway Co. (Overseers of), 3 E. & E. 108. (2nd case), 21 L. J. M. C. 84 ; 15 Q. 3 20 L. J. M. C. 124 ; 15 Q. B. 313. B. 379, 1085. 118 HOW RATEABLE. [PART Actual rcceij ^ and expenses within the parish. Immaterial where profits received. Question of contributive value. parochial principle coincide, and therefore there is no de- parture from the latter, in the use of the former for con- venience of calculation. Wherever the result of each method would be the same, either may be employed : where the results would be different, the parochial principle must be followed. To arrive at the net profits of the part of a property that is within the parish we must ascertain first its gross receipts and then its expenses. Its gross receipts may consist either of payments wholly earned within the parish, or of a share of payments that are earned partly within and partly with- out the parish, or may be made up of items belonging to each of these classes. The apportionment necessary to calculate the items falling under the second head may be effected in any method which will be accurate. The items of which the expenses consist, will fall under corresponding heads, and with regard to both expenses and receipts, what has to be ascertained is the amount actually due to the part of the property that is within the parish in question. It is not material whether the profits are received \vithin_ or without the parish, 1 the important point is whether they are produced by the land within the parish. 2 That the rateable value of the part of the property within the parish must be proportioned to its actual profits instead of to its length or area, or in other words that the parochial principle must prevail over the mileage system, is clearly established, but there has arisen a difficult question as to what are to be included in the profits of the land. Are they to be limited to the profits earned on it, or are they to include any share of profits which it enables the land in another parish to earn ? This will be treated under the head of Con- tributive Value. 1 E. v. New River Co., 1 M. & S. 503 ; R. v. Barnes, 1 B. & Ad. 113. - R. v. Lower Mitton, 8 L. J. (0. S.) M. C'. 57 : 9 B. & C. 810. III.] CONTRIDUTIVE VALUE. 119 COXTR1BUTIVE VALUE. The question of Contributive_Value_ is mainly of interest Contribute in connection with the Rating of Railways, though there is nothing to confine its applicability to them, to the exclusion of other kinds of property extending like them over different parishes. Apart from the profits, if any, which are earned upon a Illustration of. branch line, or an outlying portion of a railway, it may be of value as a feeder to the main line, because contributing to the profits of the main line by bringing traffic upon it. It not unfrequently happens that such branch lines are worked by the occupier of the main line when their intrinsic value as measured by the earnings upon them is nothing, or even though there is a loss upon them. In rating a branch line in a particular parish, is this fact What the that it is valuable as a feeder to a line in some other parish to be taken into consideration in estimating its rateable value, or are the profits it produces in the first mentioned parish alone to be considered in assessing it there ? That is the question of contributive value. It will not be possible, for two reasons, to give to this ques- tion an answer which will apply to all cases, or indeed to definitively answer it at all. In the first place the answer will depend in each case on the particular facts therein ; and in the second, the judicial decisions do not all appear consist- ent with one another. Briefly speaking, it is said on the Its uncertain one hand, that the value as feeder is part of the fruits of the occupation in the parish where the branch exists, and there- fore is an element of the rateable value there, and on the othei that the parochial principle as applied to railways involves estimating the value of the part of a railway in a particular parish, by taking into consideration the receipts and expenses within the parish alone. Sometimes the one 120 HOW RATEABLE. [PART Difficulty of applying the P. A. Act to properties extending over different parishes. Preliminary points. (1) Objection on ground of double rating. and sometimes the other of these views has formed the ratio decidendi. The question of contributive value is an example of the difficult problems that present themselves for solution in the course of applying the rule of the Parochial Assessment Act 1 to properties of a very different nature from those that were in the contemplation of the Legislature when that rule was laid down. Indeed, so serious were those difficulties regarded when they first arose, that Lord Campbell, 0. J., in one case 2 postponed judgment in the hope that the Legislature would relieve the judges from the task of solving them, by inter- posing to lay down rules more easily applicable to the rating of railways. But no such interposition took place, and the details of railway rating had to be developed out of first principles. There are three points to which attention may be called in the first place by way of clearing the ground. (1) It was said by Erie, J., in S. E. Ry. Co. v. Dorking, 3 that if the branch line were rated for contributive value, there would be a double rating in respect of the same profits, since the parishes on the main line in which the profits of the traffic contributed by the branch are actually received would be entitled to rate the main line on them as profits made in the parish. It is assumed by Erie, J., that no deduction, on the ground that some of these profits belong to the branch, could be made in the parishes on the main line, and this view seems to derive support from some dicta of Lord Denman, C. J., in R. v. L. cC- S. W. Ry. Co., 4 where he says, " the subject matter of rate in eaoh particular parish is, no doubt, the beneficial occupation of the land there, and 1 6 & 7 Will. IV. c. 96. 2 R. v. Great Western Railway Co. (2nd case), 21 L. J. M. C. 84 ; 15 Q. B. 379, 1085. 3 23 L. J. M. C. 84 ; 3 E. & B. 491 ; infra, page 125. 4 11 L. J. M. C. 93 ; 1 Q. B. 558. III.] CONTRIBUTIVE VALUE. 121 I you cannot draw into the rate the value of the occupation of buildings elsewhere; yet as you are about to rate on the value in the parish however occasioned, you cannot strike off any portion, because it would not have existed but for the occupation of buildings in another parish ; still it exists, and in the parish, and therefore cannot escape the rate there. Suppose A. B. occupying an entire tenement, as an inn, in two parishes, C. and D. ; the lodging part of the building in C., and the tap and stables in D. There would be two rates, but could the owner say in C., 'True it is that which I occupy here is de facto more valuable than a mere dwell- ing or boarding-house, but that is in a great measure because it is connected with the tap and stables in D. ; you must reject what is referable to that connection, and rate me here as if I occupied an inn without a tap or stables ; you must suppose a demise only of the parts in C. and rate on the rent to be given only for what that demise would pass to me.' " On the other hand, Lord Campbell, C. J., said, in S. E. Ry. Co. v. Dorking, that if the appellants were rated in a parish on the branch line in respect of the value of the branch line as a feeder, then " in estimating the profits in the parishes through which the main line passes, there ought to be a deduction in respect of what is paid for the line which is worked as a feeder to the main line." It is submitted that if the rateable value of the branch line be enhanced by its value as a feeder, then the profits when received on the main line ought to be, and could be, subjected to the deduc- tion of an equivalent amount, to be regarded as one of the expenses of earning them. If that is so, then Contributive Value is a question which C. V. a I concerns the parishes alone and not the railway companies, between! for to the latter it is immaterial which way it is settled, since P anshes J if their rateable value is increased by it in one parish it will be correspondingly diminished in another. (2) Another objection to Rating on Contributive Value (2) Objection on ground of 122 HOW RATEABLE. [PART difficulty of calculation. (3)Branchwhen incorporated \vith trunk to be treated as the same Circumstances in which the question of C. V. arises. is pointed out by Erie and Crompton, JJ., and Lord Camp- bell, C. J., in S. E. Ry. Co. v. Dorking, and by Shee, J., in The Haughley Case, namely, the difficulty of measuring it. and distinguishing what is to be credited to the branch from the general profits of the occupation on the main line. Still the difficulties there may be in carrying it out cannot affect the question of whether it is right or not in principle. If it is, then those difficulties must be faced like others. (3) A third point which it will be of assistance to bear in mind, is that where a branch is incorporated with a main line, is worked, that is, as part of the same concern, then, subject to possible exceptions where the fusion is not com- plete, the two are to be considered as one property for the purpose of estimating rateable value ; for the hypothetical tenant must be assumed to be tenant of both, since the object of assuming his existence at all is to ascertain what a tenant would give " by way of rent from year to year in order to be placed as occupier in the same position as the warty rated" 1 or in other words, the supposition of a tenancy " is only a mode of ascertaining the existing value of the occupation to the existing occupier." 2 A direct authority that where a branch is absorbed into the trunk they are to be treated as one for the purpose of rating calculations is R. v. G. W. Ry. Co. (2nd case). 3 To determine whether the occupier of a branch line is to be rated for its value as a feeder, we must first see that he profits by it, and secondly that he does so as part of the fruits of his occupation. If a branch contributes traffic to a main line which is in the hands of another and independent occu- 1 Per Lord Deuman, C. J. in R. v. G. W. Ry. Co. (1st case), 15 L. J. M. C. 80 ; 6 Q. B. 179. 2 Per Lord Demnau, C. J. in R. v. Grand Junction Ry. Co., 13 L. J. M. C. 94 ; 4 Q. B. 18. 3 21 L. J. M. C..84 ; 15 Q. B. 379, 1085. III.] CONTRIDUTIVE VALUE. 123 pier, then (in the absence of any agreement between the respective occupiers, such for instance as existed in the New- market Case, infra, page 124), it is clear that there is no enhancement of the value of the occupation of the branch on the score of contributive value : it passes into the hands of strangers, and the occupier of the branch has no control over it, and gets no profit out of it. But if the occupier of a main line constructs, or buys, or takes a lease of, a branch which contributes traffic to the main line, and occupies the branch himself, then the occupier of the line which has a feeder value is also the person who profits by that feeder value. The same is the case where the portion of line under con- sideration is what would be ordinarily called, not a branch, but, a portion of the main line, and indeed it makes no dif- ference which we call it, since as we have seen all the lines worked as parts of the same system are to be treated as one concern in estimating rateable value j 1 but it will be conve- nient to speak of the part of line which contributes the traffic, as the branch, and the part where the profits are actu- ally received, as the main line. Then there is the less common, but possible, case where the occupier of the branch, though not in occupation of the main line also, yet contrives as in the Newmarket Case, infra, page 124, to put something into his own pocket by reason of the value of the branch as a feeder to the main line. It will now be convenient to briefly summarise the chief Cases, cases so far as they bear on the principle of Contributive Value, but omitting any reference to the three points already touched upon on pages 120-122, and we can then, treating these cases as a whole, endeavour to ascertain their result. This plan will perhaps be preferable to taking them one by one and quoting from the judgments in each, as some of the 1 R. v. Great Western Railway Co. (2nd case), 21 L. J. M. C. 84 ; 15 Q. B. 37D, 1085. 124 HOW RATEABLE. [PART Newmarket case. Facts. Guarantee. Held not rateable on sum paid under guarantee. Summary of judgments Erie, J. Coleridge, J. judgments are of considerable length, and short quotations might be misleading, especially as the effect of the ipsissima verba depends to some extent on the state of facts before the Cour,t in each particular case. (1) The Newmarket Ry. Co. v. St. Andrew the Less, Cambridge. 1 (Jan. 1854.) The B. Co. in pursuance of an agreement, that if the A. Co. would construct and work a certain branch line, the B. Co. would in consideration of its value to them as a feeder to their line, pay to the A. Co., whenever they did not earn enough to pay a dividend of 3 per cent., such sum as would enable them to make up their dividend to that rate had paid in one year a sum of 3705 to the A. Co. Held, by Coleridge and Erie, JJ. (diss. Lord Campbell, C. J.), that, in assessing the branch line of the A. Co., the 3705 paid by the B. Co. was not to be taken into consider- ation, but only the profits actually earned upon the branch line. Erie, J. The hypothetical tenant would not get the benefit of the sum paid under the guarantee : the rate upon that sum would not be legal, because it would really fall not upon the occupier but on the guarantor : and, that sum is not a profit made in the parish, and is not affected by the principle that the respective value of rateable subjects in different parishes may be increased by their combined operation. Coleridge, J. That sum is not part of the fruits of the occupation, and the hypothetical tenant would not necessainly get it. 1 23 L. J. M. C. 76 ; 3 E. & B. 94 ; cf. R. v. Laplcy, 9 B. & S. 568. CONTRIBUTIVE VALUE. 125 Lord Campbell, C. J., diss. That sum is part of the profits Lord Camp- of the occupation and would be received as such by diss'. the hypothetical tenant : the parochial principle does not exclude from the rateable value of land " a profit derived from it by the occupier, as occupier, in consideration of an advantage derived from it in another parish." (2). The South Eastern Ry. Co. v. Overseers of Dorking, 1 s. E. Ry. Co. ,,, , v. Dorking. (Feb. 1854). The A. Co. constructed a branch line joining the main line Facts, of the B. Co. The B. Co. became the sole occupiers of the A. line under a lease for 1000 years, at 41,000 per ann. Subsequently the A. line and the B. line were amalgamated by Act of Parliament, on the terms of the B. Co. paying the shareholders of the A. Co. perpetual annuities to the amount of 41,000. Two rates were the subjects of appeal, one made during the lease, and the other after the amalgamation . The annual profits made on the A. line were less than 41,000, but it was found as a fact in the case that the A. line would be valuable as a feeder to other companies besides the B. Co., and therefore if in the market might be an object of competition among them. The question was raised whether the A. line was to be assessed in respect only of the net profits earned upon it, or whether its value as a feeder was to be taken into account also. Held by Lord Campbell, C. J., Coleridge, and Crompton, Held C. V. JJ. (diss. Erie, J.), that the value of the A. line as a feeder was to be taken into account in assessing it. _, --._. 1. 1. *" O Crompton, J. Yalue as a feeder is profit derived from the Summary of i j i i ^ t> - judgments- Occupation ; would be an element in fixing the rent GIOJD ton j 1 23 L. J. M. C. 84 ; 3 E. & B. 491. 126 HOW RATEABLE. [PART Lord Camp- bell, C. J. of the hypothetical tenant ; and on principle in- creases the rateable value of the branch. Coleridge, J. Coleridge, J. Nothing is to be excluded which adds to the value of the occupation : the question is not so much where the profits are produced as whether they are referable to the occu- pation : and, rateable value within the parish may depend on matter without the parish. Lord Campbell, C. J. The parochial principle of ascer- taining the value of the property within the parish, does not limit that value to the receipts for the use of it within the parish : feeder value originates in the parishes where the branch is, although the profits are actually received in the parishes on the main line. Erie, J., diss. Erie, J., diss. It has been decided that the rateable value of a railway is to be determined by reference solely to the net profits earned within the parish : and, if contributive value were rated the same profits would be rated twice over. L. & N. w. Ry. Co. v. Cannock. Facts. (3). The London and North Western Ry. Co. v. Overseers ofCcmnock. 1 (1863). The branch line of the A. Co. joined the main line of the B. Co., and was leased to the latter Co. at a fixed rent. The A. line yielded no profit whatever as regards its own earn- ings, but it had a considerable value as a feeder to the B. line. O ' The question for the opinion of the Court was, whether in rating the A. line its value as a feeder was to be taken into consideration. 9 L. T. N. S. 325. III.] CONTRIBUTOR VALUE. 127 The ca.se was sent back by the Court in order that it Case remitted ,, ., , . . to sessions. might be ascertained what "taking all its advantages into consideration " was the rateable value of the branch line in the respondent parish to the B. Co. No further judgments were delivered, but in the course of the argument it was said by, Cockburn, C. J. " Rent is prima facie evidence of value. Cockburn, ~ c j Suppose at this moment there were no lease and the appellants wanted to take it, what is the rent they would give ? They would arrive at that by this process : What is the traffic on the branch, what are the expenses, what are the profits it would produce to the main line ? with some other con- siderations." 1 And by, Blackburn, J. " What would be the elements of the rent ? Blackburn, J. why, amongst others, the capacity to add to the takings of the main line." (4). The Great Eastern Ry. Co. v. Overseers of Haughley ? G. E. Ry. Co. (1866). * The question of contributive value was raised in this Facts. case in a slightly different way. The line under considera- tion ran from Norwich through Haughley and then through Ipswich to London. A train from Norwich to London would, after passing through Haughley, stop at Ipswich, where it would receive a large accession of traffic, and consequently in the parishes on the London side of Ipswich the net profit per train mile would be greater than in Haughley : the expense of running the train being the same in each case, but the earnings being greater where the train is better rilled. An 1 But Mellor, J., in ft. v. Llan- did not quite adhere to the suggestion trissaiit, (page 129, infra) said, "I he threw out in the Cannock Case." think it must be taken that the Lord 3 L. R. 1 Q. B. 666 ; 35 L. J. M. C. Chief Justice in the Haughley case 229. 128 HOW RATEABLE. PART Contention of the parish. Held C. V. not rateable. Summary of judgments Cockburn, C. J. individual passenger therefore, who is charged so much a mile for the whole journey, would be carried at greater profit to the Railway Co. between Ipswich and London than in Haughley, and the profit per mile on carrying him the whole journey would be greater than the profit per mile on carrying him through Haughley. It was contended by the parish That each mile of railway over which traffic passes must be regarded as contributing equally to the earning of the profits derived from that traffic on the whole line of which that mile is a part ; in other words, that if the same traffic is carried at a much greater profit over one part of the line than over another, still each part of the line over which it is carried must be considered as equally earning the profits made on the whole journey, or that if the parish cannot claim to share directly in the gross receipts beyond it, still it would be entitled to take into account the additional traffic beyond it as diminishing the expenses within it ; and that the fare of the through passenger being necessarily received at one or the other end of the journey should be apportioned equally over the length of the line in order to ascertain the earnings in each parish, but that the expenses ought not to be dealt with in a similar manner, because the expense of conveying the passenger is not equal from one end of the journey to the other, but varies inversely as the amount of traffic. Held by Cockburn, C. J., Mellor and Shee, JJ., that in assessing the line in Haughley no account was to be taken of the traffic beyond the parish. Cockburn, C. J. The traffic beyond the parish if taken into account at all must be in relation not to the expenses, but to the profits; and, looked at as matter of profit, it occurs beyond the parish of Haughley, and it is an accident which affects the rateability of the property where the profit accrues and not elsewhere. HI.] CONTRIBUTIVE VALUE. 129 Mellor, J. Rateable value in a parish is to be based on X'ellor, J, the actual profit earned there, and in this case the increased profit in the parishes on the London side of Hanghley was not due to, or contributed by, the line in Haughley. He says : " I think that it is an accident to be assigned to the benefit of those parishes in which the accession of traffic takes place and not to a parish which has nothing to do with it." Shee, J. The contention of the parish involves the adop- Shee, J. tion of the mileage instead of the parochial principle, but the result of the authorities is that the paro- chial and not the mileage principle is to be applied to the rating of railways. (5). R. v. Llantrissant. 1 (1869.) R. . Lian- trissant. The branch line of the A. Co. joined the line of the B. Co., and was leased to the latter at a fixed rent. The question for the opinion of the Court was whether in rating the A. line its value as a feeder to the B. line was to be taken into account. Held by Mellor, J., Hannen and Hayes, JJ., concurring, Followed that on the authority of the Haughley case the feeder value i e y. was not to be taken into account. (6). R. v. London and North Western Railway Co? R. r. L. & N. (1874.) The B. Co. had become possessed of a branch line made Facts, by the A. Co., which communicated with the B. line, on the terms that the shareholders of the A. Co. should become stockholders in the B. Co. to the amount of the cost of con- 1 L. R. 4 Q. B. 354 ; 38 L, J. M. C. 2 L. R. 9 Q. B. 134 ; s. r. R. v. Bed- 93. ford Uni'jn, 43 L. J. M. C. 81. K 130 HOW RATEABLE. [PART Decision. Competition to be taken into account. C. V. rateable. Summary of judgments Blackburn, J. (juain, J. Archibald, J. struction of the A. line. The A. line communicated with the lines of three other companies, and the B. Co., in order to divert traffic from those lines on to their own line, worked the A. line at very low fares, and consequently the profits actually earned upon the A. line were very small. It was found as a fact in the case that the A. line would be valuable as a feeder to each of those companies, and that each of them would be willing, if it were in the market, to acquire it on the same terms as the B. Co, had done, and would then work it at similar low fares. Held by Blackburn, Quain and Archibald, JJ., that the fact that there would be four competitors for the A. line in the market, each of whom would be willing to pay what was equivalent to a high rent for it, was an element to be taken into consideration in estimating its rateable value. This amounts to a decision in favour of the rateability of contributive value, because in holding that the high rent the competitors were as a fact willing to pay for the A. line on account of its value as a feeder, was to be taken in account, the judges imply that such rent was to be paid for something that was rateable. Blackburn, J. The question is how much would the occupier get from the occupation enhanced by everything which his occupation would give him here, since the line could be used as a feeder, it would have a contributive value the question for the sessions is, what rent would be actually given if the line were in the market ? Quain, J. The value of the occupation is not merely what the railway earns in the particular parish, but something more in respect of its facility of commu- nication with other railways. Archibald, J. Advantages that go along with the occu- pation are to be considered ; also the fact of com- petition. III.] CONTRIBUTIVE VALUE. 131 (7). The London and North Western Ry. Co. v. Irth- L. & N. w. lingborough. 1 (1876.) irthiing- ' borough. A line, originally made by the A. Co., had subsequently Facts been incorporated into the system of the B. Co. No profits were produced on the part of A. line within the parish in question, but it was found as a fact that if it were in the market it would fetch a certain yearly rent, as it would be a subject of competition among three main lines. Held by Blackburn and Quain, JJ., that the Quarter Ses- Held c. V. sions were right in taking the rent which they found to be obtainable for the line in the market as the basis of the rate- able value of the part of the line within the parish. Blackburn, J. This case is governed by R. v. L. & N. W. Summary of Ry. Co., z which decided that " in consequence of Bi a c k tmm J the competition of other lines one element for fix- ing the rateable value was the enhanced traffic which the tenant would enjoy elsewhere/' Quain, J. The value of the piece of line in the parish is Quain, J. to be taken as enhanced by the more valuable traffic in other parishes. Now in order to rate an occupier on account of the contri- Whether fruit? . . . ^ ol the occupa- butive value of a branch line which he occupies, rtjnust_orst_tion, be_sho\vn that it is part of the fruits of his occupation, or in other words that it would increase the value of the occupa- tion to the hypothetical tenant. That is a question which depends on . , , . the circum- depends on the particular circumstances ot each case, but in stances of cases similar to those under review it seems probable that ei the answer would be in th^ajfirmativej having regard to the judgments of Lord Campbell, C. J., in The Newmarket Case, 1 35 L. T. N. S. 327. Bedford Union, 43 L. J. M. C. 81. 2 L. R. 9 Q. B. 134 ; s. c. R. v. See page 129, supra. K 2 132 HOW RATEABLE. [PART Finding of Erie, JJ., in Lord Camp- bell's view. of Lord Campbell, G J., Crompton and Coleridge, JJ., in S. E. Ity. Co. v. Denying, of Cockburn, C. J., and Blackburn, J., in L. & N. W. Ry. Co. v. CannocJc, of Blackburn, Quain, and Archibald, JJ., in R. v. L. & N. W. Ry. Co., and of Blackburn and Quain, JJ., in L. & N. W. Ry. Co. v. Irthlingborough. Among the judges who held contributive value not rateable, Erie and Coleridge, JJ., alone, (in the Newmarket case), made ** one ^ ^ e grounds of their decision that the value of the occupation of the hypothetical tenant would not thereby be in- creased, and the correctness of the point of view from which they formed that opinion seems sufficiently doubtful to warrant a slight digression from the main subject, in order to examine into its weight as a precedent. They held that under the cir- cumstances of that case, the guarantee was a collateral one, and would not necessarily pass to an incoming tenant. Erie, J., said, " If the purchaser of a farm had a guarantee that the rent should yield him 3 per cent, on the purchase money, the rateable value, that is, the rent which a tenant would pay for the farm, would not be increased by this collateral con- tract. Now the Newmarket shareholders are, in effect, the landlords, the Company are the tenants paying dividend for rent, and the Eastern Counties Co. are the guarantors, and the guarantee is irrelevant to the rateable value." Coleridge, J., said, " In point of fact, a lease of the line might very well be made, supposing the requisite powers, without involving a transfer of the benefit of this agreement to the lessee." On the other hand Lord Campbell, C. J., said in the same case, K If thig k ranc h wag lefc to a tenant, he would be entitled under the agreement, and the Act of Parliament confirming it, to this contingent payment." In this particular case then (where, as Coleridge, J., said, the facts were very peculiar and could seldom form a precedent for any other), there was a difference of opinion as to whether the hypothetical tenant would enjoy the benefit of the guarantee which was given to the occupier in consideration of the contributive value of the III.] CONTRIBUTIVE VALUE. 133 branch ; but it is submitted that the question should have True test, been not so much whether the guarantee would necessarily have passed to a lessee, or whether a lease might have been made without including it, as whether it would have passed, to use the expression of Lord Denman, C. J., in R. v. G. W. Ry. Co. (1st case), 1 to a tenant " placed as occupier in the same position as the party rated," and whether it should not be treated as an element of a tenancy supposed for the purpose "of ascertaining the existing value to the existing occupier." * In R. v. Fletton, 3 Cockburn, C. J., says, " The true prin- ciple according to which the value of the occupation to the hypothetical tenant contemplated by the Parochial Assess- ment Act is to be estimated, is to assume the continuance of the circumstances which constitute the value to the existing occupier, unless it be made to appear that those circum- stances are about to undergo a change." In G. W. Ry. Co. v. Badgworth, 4 " it was said in argument that the hypothetical tenant would not look at private bargains between the two companies, but Cockburn, C. J., said, " Yes, he would. The question is what he would give as rent under existing circumstances." The reasoning of Coleridge and Erie, JJ., in the Newmarket case (if correct) would not apply to the more common case where the branch and the where branch main line are in the same occupation, and where the hypo- main * /IT m SEIIDC occu* thetical tenant, being supposed to be tenant of one system pation the consisting of both, must consequently be supposed to receive case not a the profits of both ; but it is submitted that even in such a pre case as the Newmarket one, a less restrictive view than theirs should be taken of the advantages that would pass to the hypothetical tenant. 1 15 L. J. M. C. 80 ; 6 Q. B. 179. 3 30 L. J. M. C. 89 ; 3 E. fc E. 450. 2 Per Lord Denman, C. J., in R. v. 4 L. R. 2 Q. B. 251 ; 36 L. J. M. C. Grand Junction Railway Co., 13 33. L. J. M. C. 94 ; 4 Q. B. 18. 134 HOW RATEABLE. [PART Conflict of cases. The Dorking and Cannock The Haughley and Llan- trissaut cases. K. v. L. & N. W. Ry. Co., and L. & N. W. Ry. Co. v. Irth ling- borough. Authorities in support of R. v. Haughley. If however it is found in a particular case that the value of a branch line as a feeder would influence the rent of the hypo- thetical tenant, then on the authority of S. E. Ry. Co. v. Dork- ing (though diss. Erie, J.) and L. & N. W. Ry. Co. v. Cannock, it would appear that he would be rateable in respect of it on the ground that it is part of the fruits of the occupation. But then comes G. E. Ry: Co. v. Haughley, followed in R. v. Llantrissant, where while apparently not disputing that the contributive value was part of the fruits of the occupa- tion, the judges adopted the view which Erie, J., had taken when dissenting in S. E. Ry. Co. v. Dorking, namely, that the fact that it is profit accruing out of the parish excludes it from rateability. Finally, there are R. v. L. & N. W. Ry. Co. and L. & N. W. Ry. Co. v. Irthlingborougli, in which contributive value is again held rateable, in spite of the limit laid down in the Haughley case to profits accruing within the parish. Apart from the Haughley and Llantrissant cases, the rule on the subject of contributive value might be stated to be that where value as a feeder would influence the rent of the hypothetical tenant, then he is rateable in respect of it ; but, with the Haughley case before us, it must be added that incon- sistently with this view it has been held, that the parochial principle, as applied to railways (and presumably to other properties extending over more than one parish), limits the measure of rateability in each parish to the profits earned and expenses incurred within the parish. It is true that the facts of the Haughley case might perhaps distinguish it from the cases in which contributive value has been held rateable, but from the reasoning of the judges there, it appears probable that they would have decided the Dorking and Cannock cases differently from the way in which they were in fact decided, although they do not overrule them nominatim. In the Haughley case the judges held that the application of the parochial principle to railways involves that a parish TIL] CONTRIBUTIVE VALUE. 135 has no concern with profit accruing beyond it. How far is this supported by authority ? With regard to properties ex- tending over more than one parish it was held in R. v. Kingswinford, 1 in the case of a canal passing through several parishes, that the rateable value of the part within each parish was to be based directly on the profits actually derived from that part, and was not to be determined by what is called the mileage system, which assumes that the rateable value of the part in the parish is in the same proportion to the rateable value of the whole, as the length or extent of the part is to the length or extent of the whole. Following R. v. K ingsivinford is R. v. Lower Mitton? in which Bayley, J., says, " It is now fully established (R. v. Milton* arid R. v. Palmer*), that the proprietors of a canal or naviga- tion are rateable as occupiers of the land covered with water in the particular parish in which the land lies ; and it fol- lows from thence and it was so decided in R. v. Kingswin- ford, that they are rateable in each parish in proportion to the profit which that part of the land covered with water which lies in the parish produces. If it is more productive than other parts of the canal either because there is more traffic, or because larger tolls are due upon it, or because the outgoings and expenses there are less, it must be assessed at a higher proportionate value Whether the subject- matter of the occupation be productive in itself, or rendered productive by something brought from another parish, or by being used in conjunction with property in another parish, no difference is to be made in the mode of rating. Thus whe- ther the water in a parish be brought from the same parish or another parish, whether conveyed in pipes or carts or by engines, makes no difference if the land in which it is placed i 7 B. & C. 236 ; s. c. R. v. I>udUy C. 810. Canal Co., 6 L. J. (0. S.) M. C. 3. 3 3 B. & Aid. 112. " 8 L. J. (0. S.) M. C. 57 ; 9 B. & < 1 B. & C. 546. 136 HOW RATEABLE. [PART be thereby rendered more valuable." By parity of reasoning it would seem to follow that whether traffic on a railway in a parish arises in the parish or is contributed by a line in another parish makes no difference to its rateability in the parish where its profits are enjoyed. Then there are some authorities quoted in the judgment of Erie, J., in S. E.Ry. Co. v. Dorking, at more length than in the Haughley case, namely, K v. 0. W. Ry. Go. (2nd case), 1 R. v. L. B. & S. G. My Co., R, v. S. E. Ry. Co., and R. v. Midi. Ry. Co.? in which it was decided that the rateable value of a part of a railway within a parish is to be estimated with reference to the net profits earned in the parish, and not on the mileage system, because under it some parishes would benefit in respect of profits earned in others. Contra. The above authorities seem to support the limitation of rateable value to profits earned within the parish, which was laid down in the Haughley case, but in favour of a more extended view of the parochial principle there is the case of the Amwell Spring, R. v. New River (7o., 3 where the New River Co. were held rateable at 800 per annum for land containing the spring which formed the New River, it being found that the land without the spring was worth but 5 per annum, and that the higher amount was in respect of profits made by the company, by selling the water in other parishes. It was there held that it matters not whether the profits are received within or without the parish so long as the land to the occupation of which they are due is within the parish. In G. W. Ry. Co. v. Badgivorth* the A. Co. and B. Co. each paid half the cost of constructing a line from C. to D., and when finished, the half of the line nearest C. 1 21 L. J. M. C. 84 ; 15 Q. B. case in R. v. West Middlesex. Water- 379, 1085. works Co., 28 L. J. M. C. 135 ; 1 E. 2 15 Q. B. 313. & E. 716. 3 1 M. & S. 503. But see the 4 L. E. 2 Q. B. 251 ; 36 L. J. remarks of Wight-man, J., on this M. C. 33. III.] CONTRIBUTIVE VALUE. 137 became by agreement the property of the A. Co., and the half nearest D. the property of the B. Co. The A. Co. had running powers over the half of the line belonging to the B. Co., in return for granting the B. Co. running powers over their half. In rating the A. Co. it was held that the profits they made in the parish on their own line were to be regarded as enhanced by the right to run free over the half of the line belonging to the B. Co. The value of the right to run over the B. line would depend on the profits made on it, which are profits made out of the parish, though the means of making them was the occupation of the A. line within the parish, The matter stands at present thus : In the Haugbley and Result of the Llantrissant cases it was held that contributive value is not contributive rateable, because only profits earned within the parish can be va ue ' taken into account, while in the Dorking and Cannock cases, before, the Haughley case, and in R. v. L. & N. W. Ry. Co., and L. cfr N. W. Ry. Co. \. Irthli ngborough, (after the Haughley case), contributive value was held rateable. In this somewhat uncertain state of the law it is perhaps Absence of consolatory to the parishes, that, while the Railway Com- eHheTsid" to panics have no motive for fighting the question again, since raise the if their rating is increased in one parish on account of con- again. tributive value, it will be correspondingly diminished in ano_ther_; they themselves have, as a rule, very little induce- ment to raise it, on account of the difficulty of ascertaining what the value of a line as a feeder really is. In the Dorking case, Crompton, J., said, " it may be difficult and not often worth while, to introduce this new element into account." Lord Campbell, C. J., said, " I would earnestly dissuade parishes from ever making any claim under this head, unless where upon clear evidence the claim can in point of fact be established ; " and Erie, J., in saying that, " as a generality cannot be tested without a specific application, I suggest that if a case is again brought up relating to these points, it should state specifically what is the railway profit arising out ]38 HOW RATEABLE. [PART of the parish which is liable to be rated within it," directs the attention of the parishes to the practical difficulty that remains, even supposing the principle established in their favour. 1 DISTINCTION BETWEEN DIRECTLY AND IN- DIRECTLY PRODUCTIVE PORTIONS OF A PROPERTY. There is a distinction between the directly and indirectly productive parts of a property, which is best illustrated by examples. The profits of waterworks, for instance, are earned by supplying water to the consumer. It matters not to the con- Water pipes. sumer how far the water has been carried in mains or pipes before it is delivered to him at his house, or wherever else he receives it; nor does a consumer who lives several miles from the waterworks pay a higher price for the water sup- plied than one who lives next door to them. What is paid for, in each case, is water, and not the transit of water. _ Hence the pipes by which the transit of water to the con- is effected cannot be regarded as a direct source of proftt to the waterworks. Still, being essential to the busi- ness of supplying water, they are indirectly productive of profit. 2 Gas pipes. Similar remarks may be made as to the pipes of a gas company. 3 Railway So, in the case of a railway, what the passenger pays for stations. is conveyance from one place to another ; therefore the hue, 1 See also per Shee, J., in the 1 E. & E. 716. Haughley case. 3 R. v. Sheffield Gas Co., 32 L. J. 2 R. v. West Middlesex Water- M. C. 169 ; 4 B. & S. 135. works Co., 28 L. J. M. C. 135; III.] INDIRECT SOURCES OF PROFIT. 139 and not the stations and other buildings, that are only ancillary to the traffic, is the direct source of profit. But the stations, &c., as being incidentally useful in doing that which is the equivalent for the fares paid by the public, are indirect sources of profit j Again, if a Bridge Company erect a bridge over a river, Approaches to and make approach roads leading to it, and take tolls from those who pass over, the bridge itself is the direct source of the rateable value, the passage over the river being that which is paid for, while the approaches only indirectly con- duce to the production of profits. 2 The above examples indicate a simple test by which to I The test is. ...... i . . I Wiiat is it that determine whether a particular portion of a property is |js paul ior I directly or indirectly productive, namely to inquire what it is the customer pays for. Other examples of indirectly productive property are the other examples reservoirs, buildings, and other premises belonging to water- som-c^ O f works, 3 the gasometers and manufacturing premises of gas- P rofit - works, 4 and the warehouses, graving docks, timber sheds, workshops, &c., forming part of a dock system. 5 A canal lock, for passing through which no special toll or due is taken, would be only indirectly productive, but a lock for passing through which tolls are charged, is rateable on the basis of those tolls. 6 The distinction between such a lock and a railway station would appear to be that in the case of the station no separate charge is made for its use, but 1 Smith Wales Railway Co. v. 1 E. & E. 716. Sicaiisca, 24 L. J. M. C. 30 ; 4 E. & * R. v, Sheffield Gas Co., 32 L. J. B. 189 ; R. v. Grand Junction Rail- M. C. 169 ; 4 B. & S. 135 ; R. v. way Co., 13 L. J. M. C. 94 ; 4 Q. Cambridge Gas Co., 7 L. J. M. C. 50 ; B. 18. 8 A. & E. 73. - R. v. Hammersmith Bridge Co., '" Mersey Docks and Harbour Board 18 L. J. M. C. 85 ; 15 Q. B. 369. v. Birkcnhead, L. R. 8 g. B. 445 ; 3 R. v. Bath, (Co-i-poratimi of), 14 42 L. J. M. C. 141. East, 609 ; R. v. West Middlesex R. v. Lower Mitton, 8 L. J. (0. Waterworks Co., 28 L. J. M; C. 135 ; S.) M. C. 57 ; 9 B, & C. 810. 140 HOW RATEABLE. [PARI 1st. The direct to be dis- tinguished from the in- direct sources of profit. 2nd. The indirectly productive portions to be separately rated on their value to the concern. 3rd. In assess-/ ing the directly/ the gross charge made includes both the transit and the use of the station. 1 The distinction between direct and indirect sources of profit is of importance wherever a property extends over more than one parish. If the entirety can be divided into two parts by separating the directly from the indirectly pro- ductive portions, such a division is to be made. This is both recognised m practice and based on authority. 2 The indirectly productive portions are then to be separately rated. Each parish must rate the indirectly producing part that lies within it on an estimate of the rent it would yield regarded as a separate hereditament, but such estimate must be made not of its value per se as land, building, or whatever it may be, nor according to its original cost, but, in accordance with the principle of rebus sic stantibus, of the (probably en- hanced) value which it possesses while used for the purpose for which it actually is used, and as a portion of the concern of which it in fact forms part. 3 A station, for instance, is not to be estimated merely at what any one would give for it as a building of a certain size, but at what the railway company might reasonably be expected to give for it in order to use it as part of their system, supposing it belonged to somebody else. The indirectly productive parts of a concern having 1 R. v. Eastern Counties Railway Co., 32 L. J. M. C. 174 ; 4 B. &S. 58. 2 R. v. Hammersmith Bridge Co., 18 L. J. M. C. 85 ; 15 Q. B. 369 ; R. v. Great Western Railway Co., (1st case) 15 L. J. M. C. 80 ; 6 Q. B. 179 ; R. v. Mile End Old Town, 16 L. J. M. C. 184 ; 10 Q. B. 208 ; Smith Wales Railway Co. T, Swansea, 24 L. J. M. C. 30 ; 4 E. & B. 189 ; R. V. Eastern Counties Railway Co., 32 L. J. M. C.174; 4 B. & S. 58. 3 R. v. London , (6) Depreciation of rolling stock, &c. . * (c) Risks and casualties 24 p. c. on 30,000 1,500 1,700 750 (d) Interest on working capital 5 p. c. on 1,000 50 (e) Tenant's profits 10 p. c. on 30,000 . 3,000 Gross Estimated Rental, or Gross Value 2 V. LANDLORD'S DEDUCTIONS, or StatutaLle Deduc- tions Renewal of way and insurance . . . 4,000 Rateable Value 16,600 2,000 14,600 7,000 7,000 7,600 4,000 3,600 1 The figures are merely fictitious ones introduced by way of illustration. 2 ' Gross Estimated Rental ' is the term used in the schedules to the P. A. Act of 1836, and the Union Assessment Committee Act of 1862 (25 & 26 Viet. c. 103). The former of those Acts did not 144- HOW RATEABLE. [PART The system applicable to other properties as well as rail- ways. The above is, as some of the subdivisions show intended primarily as ark. example of railway rating, but the rate- able value of canals, docks, gas, water, and tramway com- panies, &c., may be\ascertained in the same manner, by arranging under the nVe main heads, namely, (1) gross receipts ; (2) working expanses ; (3) indirect sources of profits ; (4) tenant's deduction^ and (5) landlord's deduc- tion^ the amounts properly belonging to each, and substi- tuting for such subdivisions as locomotive expenses, the cor- responding items which are found to exist in the case of those undertakings. The system is equally applicable whether the whole concern, as may be the case with docks, or only a part of it, as in the case of a railway, is within the parish. In give a definition of ' Gross Estimated Rental,' but the latter (by sec. 15), defined it as "the rent at which the hereditament might reasonably be expected to let from year to year, free of all usual tenant's rates and taxes, and tithe commutation rent-charge, if any." But the rating of property within the Metropolis is now regu- lated by the Metropolis Valuation Act of 1869 (32 & 33 Viet. c. 67), in the 1st schedule to which the term 'Gross Value' is used in place of 'Gross Estimated Rental.' That Act defines 'Gross Value 1 as "the annual rent which a tenant might reasonably be expected, taking one year with another, to pay for an hereditament,, if the tenant under- took to pay all usual tenant's rates and taxes and tithe commutation rent-charge if any, and if the land- lord undertook to bear the cost of the repairs, and insurance, and the other expenses, if any, necessary to main- tain the hereditament in a state to command that rent." It defines 'Rateable Yfilrm ' as "the gross value after deducting therefrom the probable annual average cost of the repairs, insurance, and other expenses as aforesaid. " These definitions may be regarded as applicable to property without, as well as within, the Metropolis (although the Bill of the same year which dealt with property out- side the Metropolis, the Valuation of Property Bill, 1869, which also contained these definitions, was with- drawn and therefore did not become law), for the Metropolis Valuation Act did not contain any new prin- ciple, but was merely an endeavour to facilitate the carrying out of the existing law, by inter alia giving " a better definition of Gross Estimated Rental " to which it gave the name of 'Gross Value.' (See Hansard, Vol. cxciv. page 171). This " better definition," it will be noticed, avoids the ambiguity involved in the words "free of" in the former one. III.] RAILWAYS, ETC. 145 the latter case the apportionment to the parish of its share of the various items must be calculated in accordance with the parochial principle. I. GROSS RECEIPTS. The gross receipts of railways in- Gross re- elude l all fares for the conveyance of passengers, receipts for the carriage of goods and cattle, tolls, if any, received for the use of the line, 2 and payments for user of line or stations by other companies. 3 All these are to be reckoned at the amounts actually charged by the company, not at the maximum their statute allows them to charge. 4 Passenger Terminals, and goods receipts are not to be for rating purposes separated, (as they are by the Railway Clearing House for other pur- poses), into what is due for the use of the line, and what for the use of stations, &c., (i.e. terminals) ; but all that is earned, whether by the stations or by the line, is to be reckoned in the -general profits of the concern ; therefore gross charges covering the use of both line and stations come in their entirety under the heading of receipts. 5 Besides what is actually received in . money, there is to be included among gross receipts the money value of anything earned by Earnings in means of the occupation, which is paid in another way than in money ; as, for instance, where a line of railway belonged to two companies, each owning half the line, and receiving from the other company running powers free over the other half, in return for the grant of a similar privilege over its own half, neither company receiving payment in money for the 1 R. v. London deficiency is to be the rental at the time of the passing of L the special Act. ' Until the works are completed and assessed/ ]&**)- A*- does not mean until the entire system of railways, or other^-^^f^^^ works, authorised by the special Act are completed, but uniil'^^j^^/fc^tt the portion within the parish is complete and assessable. 7 -^ i*'^?* r r r * /<^ J fo***s*Asfa, I Locks on a canal seem analogous to stations on a railway. Locks, but the question whether locks are to be rated in the same way as stations, is not left by the reported decisions in a satisfactory condition. In R. v. Lower Mitton? it was held that a lock was to be rated like any other portion of the caiial, the lock dues being therefore to be treated as a parochial earning, and not included in the general receipts of the undertaking like station earnings ; but in a more recent case, R. v. Coventry Canal Co.? it was held that the ex- penses of a lock were not to be regarded as parochial expenses, but were to be thrown on the whole line of the canal. These Decisions in- cases seem inconsistent, for if the lock dues are to be credited ^T"?"^ J but should 1 R. v. Grand Junction Canal Co., 186 ; Grand Junction Canal Co. v. 1 B. & Aid. 289 ; R. v. St. Peter the Hcmel Hempstead, L. R. 6 Q. B. 173; Great, Worcester, 5 B. & C. 473 ; 40 L. J. M. C. 25 ; Warwick and ' Y Y "IVY* central works is delivered (or. more strictly speaking perhaps, the junctions as indirect, . . sources of between those mams, and the service pipes belonging to their profit, customers) are the directly productive part of the property^ ajid the central works, &c., are the indirect sources of profit. The first step is to ascertain the rateable value of the whole of the mains, 4 by starting with the gross receipts and deduct- ing from them the rateable value of the indirectly productive. parts of the property, (which are to be separately rated in the parishes where they are situated,) 5 as well as the other items 6 which, according to the principles explained on pages 1 An example of the rating of a Gas 3 R. v. Mile End Old Town, 16 L. J. Company may be found in R. v. Lee, M. C. 184 ; 10 Q. B. 208. But see L. R. 1 Q. B. 241 ; 35 L. J.M. C. 105. per Wightman, J., in R. v. West 2 R. v. Bath (Corporation of), 14 Middlesex Waterworks, 28 L. J. M. C. East, 609 ; R. v. Rochdale Waterworks, 135, at 140 ; 1 E. & E. 716, at 728. 1 M. & S. 634 ; R. v. Chelsea Water- 4 R. v. Lee, L. R. 1 Q. B. 241 ; ivorks (where it is pointed out that it 35 L. J. M. C. 105. is immaterial that another person is b R. v. Mile End Old Town, 16 rated for the sztr/rtce of the land), 5 B. L. J. M. C. 184; 10 Q. B. 208; & Ad. 156 ; R. v. West Middlesex R, v. Cambridge Gas Co., 'i L. J. M. Waterworks, 28 L. J. M. C. 135 ; 1 E. C. 50 ; 8 A. & E. 73. & E. 716 ; R. v. Brighton Gas Light 6 As to what portions of the (Jo., 5 B. & C. 466 ; 8 Dow. & Ry. 308. ordinary plant and apparatus of a 156 HOW RATEABLE. [PART Apportion- ment, in ratio of gross receipts in the parish. Restricted occupiers. 146 to 151, supra, are proper to be deducted. We then have the rateable value of the whole of the mains, and from that we have to arrive at the rateable value of the mains in each parish by a process of apportionment. It is not correct to make the apportionment according to the quantity of land occupied by the apparatus in each parish, 1 but the share of the total rateable value of the mains is to be in the ratio of the gross receipts in the parish to the total g^ receipts. It should perhaps be pointed out that apportion- ment in the ratio of gross receipts is here no departure from the principle of taking the net profits in the parish as the basis of assessment ; for where the total of expense is taken to be common to the whole apparatus, the ratio of gross receipts is the same as the ratio of net profits, 2 and therefore by using gross receipts as the basis we arrive at the same result as we should by using net profits, and with less calcu- lation. As to waterworks in the hands of commissioners or a corporation restricted by statute from making the same profits as private speculators, see pages 89 and 90, supra. TRAMWAY COMPANIES. Tramway companies, occupiers of Tramway companies occupy land by their rails 3 as gas and water companies do by their pipes. If the entire system be Gas Company are to be considered as purchased with Tenant's Capital, and what are to be regarded as belonging to the landlord, see H. v. Lee, L. R. 1 Q. B. 241 ; 35 L. J. M. C. 105. 1 C/ielsea, Waterworks Co. v. Pidney, 22 L. J. M. C. 236 ; s. c. R. v. Putney (Overseers of), 3 E. & E. 108. It is true that in R. v. Cam- bridgc Gas Co., 7 L. J. M. C. 50 ; 8 A. & E. 73, a mileage system of apportion- ment was applied, but that was on the ground that it was " impossible to suppose any superiority in one part of the apparatus over another." If that was so in that case, it was one of those cases where the mileage system might be used because it would give the same result as the parochial principle. (See page 117, supra). But see R. v. Sheffield Gas Co., 32 L. J. M. C. 169 ; 4 B. & S. 135. 2 R. v. Mile End Old Town, 16 L. J. M. C. 184, at 188 ; 10 Q. B. 208, at 220. 3 Pimlico Tramways Co. v. Green- wich, L. R. 9 Q. B. 9 ; 43 L. J. M. C. 29. III.] BRIDGES. 157 ! within one parish, the rateable value is ascertained by i an d in respect ] merely making the proper deductions, on the principles of theurrails - already explained, from the gross receipts. When, as is more often the case, the system extends into more than one parish, some guidance in fixing the rateable value in each parish containing a portion of the tramway, may be obtained from the case of The London Trarmvays Co. v. Lambeth. 1 In that case, Apportionment the respondent parish contained not merely a portion of one Tramways Co. route or line of tramway, but portions of five routes, while a v " LamlDetlj - sixth route was entirely within it. Separate accounts were kept of the earnings on each route, but not of the expenses, except the horse expenses. Under those circumstances it was held that in calculating the net profits of the part of the system within the parish, which according to the parochial principle would be the index of rateable value, the most cor- rect practicable met.hoH of apportionment. wa.s t,n a.llnr, t.n t.hfl part within the parish of each route, a share of the receipts and horse expenses of that route in the ratio of mileage, and to the part within the parish of the entire system, a share of the total general expenses in the ratio of the number of car- miles run in the parish to the total number run on the system. BRIDGES. Approach roads to a bridge come under the head of indi- Bridges The rect sources of profit. 2 If, as is often the case, a bridge is partly in one parish and partly in another, the rateable value of profit - of the whole must be divided between those parishes in pro- portion to the length of the bridge in each of them. 3 and it 1 31 L. T. N. S. 319. (Before the ~ 2 R. v. Hammersmith Bridge Co., Assistant Judge at Middlesex Ses- 18 L. J. M. C. 85 ; 15 Q. B. 369. sions.) 3 Ib. 158 HOW RATEABLE. [PART makes no difference whether tolls are actually taken at both ends of the bridge, or at one end onl} 7 ; l for it is immaterial^ where profits are received, they are rateable where they are earned ; and every portion of the span of the bridge contributes equally to earn the tolls, therefore the mileage system of ap- portionment may be employed. See also R. v. Blackfriars Bridge Co. z Mines. 1st. Where royalty re- served in kind. Old law. Reservation of ore. Of metal. Of dressed ore. MINES. Mines fall under three heads, 1st, where the royalty or dues are for the time being wholly reserved in kind ; 2nd, tin lead, or copper mines not coming under the 1st head ; and 3rd, mines not falling under either of the above heads. 1st. Where the royalty or dues are for the time being wholly reserved in kind. While the exemption from rating of mines other than coal mines existed, it was nevertheless held that if a landlord reserved to himself a proportion of the ore, he was thereby constituted an occupier of land, or rather that in respect of the reserved ore he remained in occupation, and was rateable as an occupier. 3 It was not so however if the reservation was of a portion of the metal obtained from the ore by smelting, for that is a manufactured article rather than a part of the original earth itself, 4 but ore in a dressed state fit for smelting was within the rule, 5 and so was a reser- 1 R. v. Barnes, 1 B. & Ad. 113. 2 8 L. T. M. C. 29 ; 9 A. & E. 828. 3 R. v. St. Austell, 5 B. & Ad. 623 ; 1 Dow. & Ry. 351 ; R. v. Baptist Mill Co., 1 M. & S. 612 ; R. v. St. Agnes, 3 T. R, 480 ; Bowls v. Gells, Cowp. 451 ; Crease v. Sawle, 11 L. J. M. C. 62 ; 2 Q. B. 862 ; R. v. Todd, 10 L. J.M.C. 14; 12 A. &E.816. 4 R. v. Pomfret, 5 M. & S. 139. 5 R. v. St. Austell, 5 B. & Ad. 693 ; 1 Dow. & Ry. 351. III.] MINES, 159 vation of a royalty in kind with an option to receive it in Royalty in money. 1 Before the Rating Act of 1874 the above was pti iTto settled law in regard to mines that were not then rateable in receive lt m money. themselves, and that Act, while making all mines rateable, T^ above not preserved the above rules as they previously existed. 2 , When ^[^ d ^ t the a mine is let on those terms, the lessor is rateable on the_ 1874. royalties and the tenant on the machinery and plant. 3 2nd. Tin, lead, or copper mines, except w'heT* frh fl royalty 2nd. Tin, , . ' . . , . , lead, or copper or dues are for the time being wholly reserved in kind m i nes not The 7th section of the Rating Act, 1874, is as follows : " Where fallin g under . -11 *** k ea( l- a tin, lead, or copper mine is occupied under a lease or leases granted without fine on a reservation wholly or partly of dues or rent, the gross value 4 of the mine shall be taken to Gross value. be the annual amount of the whole of the dues payable in respect thereof during the year ending on the 31st day of ' W/tk December preceding the date at which the valuation list, is made, in addition to the annual amount of a.nv fiypH ppf, reserved for the same which may not be paid or satisfied by such dues^ " The rateable annualValue of such mine shall be the same Rateable value, as the gross value thereof, except that where the person receiving the dues or rent is liable for repairs, insurance, or other expenses necessary to maintain the mine in a state to command the annual amount of dues or rent, the average annual cost of the repairs, insurance, and other expenses for which he is so liable, shall be deducted from the gross value for the purpose of calculating the rateable value. 1 Van Mining Co. v. Llanidloes, 1 Kittow v. Liskeard Union, L. 11. 10 Ex. D. 310 ; 45 L, J. M. C. 138. Q. B. 7 ; 44 L. J. M. C. 23. 2 37 & 38 Viet. c . 54, sec. 13. 4 In this Act, unless the context 3 Van Mining Co. v. Llanidloes, 1 otherwise requires, the term " Gross Ex. D. 310; 45 L. J. M. C. 138; Value" has the same meaning as Talargoch Mining Co. v. St. Asaph "Gross Estimated Rental" in the Union, L. R. 3 Q. B. 478 ; 37 L. J. Union Assessment Committee Act, M. C. 149 ; Guest v. East Dean, L. R. 1862. See sec. 15. 7 Q. B. 334 ; 41 L. J. M. C. 129 ; 160 HOW RATEABLE. [PART In certain cases " In the following cases, namely : abk S value r is \ " (1) Where any such mine is occupied under a lease granted wholly or partly on a fine ; and " (2) Where any such mine is occupied and worked by the owner ; and " (3) In the case of any other such mine which is not excepted from the provisions of this Act, and to which the foregoing provisions of this section do not apply ; the gross and rateable annual value of the mine shall be_ taken to be the annual amount of the dues or dues and rent at which the mine might be reasonably expected to let with- tenancy! eary H out nne on a ^ ease f ^ ordinary, duration according to I the usage of the country} if the tenant undertook to pay all tenant's rates and taxes, and tithe rent-charge, and also the repairs, insurance, and other expenses necessary to maintain the mine in a state to command such annual amount of dues^ or dues and rent. rent on lease, Who may be rated. Definitions. Mine. Dues. . "The purser, secretary, and chief managing agent for the time being, of any tin, lead, or copper mine, or any of them, may, if the overseers or other rating authority think fit, be rated as the occupier thereof. " In this section, " The term ' mine,' when a mine is occupied under a lease, includes the underground workings and the engines, machinery, workshops, tramways, and other plant, buildings (not being dwelling-houses), and works and surface of land occupied in connexion with and for the purposes of the mine, and situate within the bounda- ries of the land comprised in the lease or leases under which the dues, or dues and rent, are payable or reserved : " The term ' dues ' means dues, royalty or toll, either in 1 N.B. Not on a yearly tenancy as in the case of other hereditaments. III.] MINES. 1G1 money, or partly in money and partly in kind, and the amount of dues which are reserved in kind means the value of such dues : " The term ' lease ' means lease or sett, or licence to Lease. work, or agreement for a lease or sett, or licence to work : " The term ' fine ' means fine, premium or profit, or other Fine. payment or consideration in the nature thereof." The 8th and 9th sections provide for the deduction of rates l by the tenants of mines that were not rateable pre- vious to the Act. 3rd. All mines not falling under either the 1st or 2nd heads. 3rd. All This class comprises (a) coal mines, 2 and (6) mines, other than tin, lead, or copper, first nwidfr- rateableby -the Act the 1st or 2nd giaii^ 3 provided of course that the royalty or dues_are not wholly reserved in kind. The basis of assessment for this class will be the rent Rateable under of the hypothetical tenant of the Parochial Assessment Act L This must be ascertained in accordance with the general principles already laid down in the case of other heredita- ments. It may be mentioned that among the deductions, the margin to be allowed for tenant's profit will probably be a 1 Chaloner v. Eolckow, 3 App. Cas. supra) should probably be omitted. 933 ; 47 L. J. C. P. 562 ; Devonshire If it were omitted the mines in group (Duke) v. Barrow Hcennatite Co., 2 (b) above would have been rateable Q. B. D. 286 ; 46 L. J. Q. B. 435. under that sub section, and would 2 R. v. Attwood, 6 B. & C. 277, have fallen within the 2nd class ; but and R. v. Granville (Lord), 9 B. & C. as the sub-section stands, they are 188, are cases on the rating of coal clearly not within it, and the Act mines. merely makes them rateable without 3 Without expressing an opinion directing how they are to be rated, as to the correctness of the sugges- They must therefore be assessed in tion, it may be mentioned that it is accordance with the Parochial Assess- suggested in Bainbridge on Mines ment Act, namely, on the basis of the (4th ed. at page 774), that the word rent of a yearly tenant, instead of the "such" in sec. 7, sub-sec. 3, of the rent of a tenant holding iinder a lease. Hating Act, 1874 (see on page 160, As to royalties see pp. 96-98 supra. Jl 162 HOW RATEABLE. [PART Where mine not wholly within one parish. liberal one, on account of the risk and uncertainty of mining operations. Where a mine is not wholly within the parish where the shaft or pit is situated, it is not to be rated as a whole in that parish, but each parish into which it extends must rate the part within it. 1 There do not, however, appear to be any reported decisions as to the method in which the rateable value of the mine in a parish which contains only some of the underground workings, is to be estimated. As to the rating of quarries see pages 96 to 98 supra. 2 Tithes are within the P. A. Act. But the deduc- tions there specified are not applicable to tithes, therefore they are to be TITHES, Tithes are hereditaments within the Parochial Assessment Act, 3 and therefore are to be assessed in accordance with the standard of rateable value therein prescribed. But of the allowances and deductions specified in the Parochial Assess- ment Act some, for instance, ' tithe commutation rent- charge ' and ' insurance ' are inapplicable to tithes, while on the other hand, the tithe owner, as such, is commonly subject to charges and outgoings, such as tenths and other ecclesias- tical dues, which are not specified in the Act, but which it is necessary to deduct in order to arrive at the prescribed basis of rateable value, namely, the rent reasonably to be expected. This must be in all cases ascertained if rating is to be uni- form ; and such deductions fall within the principle of the Act, for its main object was to effect uniformity of rating. In order then to give proper effect to the Act, the deductions and allowances specified in it, must be considered as instances 1 R. v. Foleshill, 4 L. J. M. C. 63; 2 A. & E. 593. - See also per Abbott J. in H. v. Attwood, 6 B. & C. 277. 3 R. v. Capel, 9 L. J. M. C. 65 ; 12 A. & E. 382. III.] TITHES. 163 applicable to one great class of property, and not as a com- regarded as examples, plete enumeration of all those that are applicable to every class ; and in the assessment of tithes, which belong to a different class, analogy is the guide to the admissibility of deductions. That analogy should be " as large and liberal as is necessary and such de- to effectuate substantial equality in the assessment, and at ^^eanaio^ 6 the same time compatible with the maintenance of the e s in , principle to principle." ] them. The following list of deductions, Allowable or the contrary, Deductions in is not intended as an exhaustive one ; it only comprises those tithes. which have been the subject of judicial decision, and the ad- missibility of any others which may be suggested must be I determined by general principles and the analogy of the | deductions that are allowed in the case of corporeal here- ditaments: (1) Expenses of collection i 2 Cost of legal proceedings to enforce payment ; 3 Losses by ultimate non-payment ; 4 but not the salary of a curate, or a contribution to the stipend of the minister of a district church ; 5 1 Hackney & Lamberhurst Tithe order properly to supply the wants of Commutation Rent-charge cases R. the parish. R. v. Goodchild, was a v. Goodchild, 27 L. J. M. C. 233 ; s. c. binding authority upon this point till Goodchild v. St. John's, Hackney, E. the Mersey Dock Gases, 35 L. J. M. C. B. & E. 1. 1 ; 11 H. L. C. 443. See Williams 2 Ibid. v. Llangeinwen, 31 L. J. M. C. 54 ; 3 Ibid. 1 B. & S. 699 ; Wheeler v. Bur- 4 Ibid. mington, 31 L. J. M. C. 57 ; 1 B. & S. 5 R. V. Joddrell, 1 B. & Ad. 403 ; 709, and Scrivcn-with-Tentcrgate v. R. v. Sherford, L. R. 2 Q. B. 503 ; Fawcett, 32 L J. M. C. 161 ; 3 B. & S. 36 L. J. M. C. 113. In R. v. 797. But as was pointed out in R. v. Goodchild it was held that these Shcrford, the Mersey Dock Cases were allowable deductions if the vicar impliedly overruled R. v. Goodchild was under a legal obligation to pay upon this point by laying down the them, or if he was under a moral rule that where property yields a profit obligation to provide himself with the occupier is rateable upon that assistance in addition to (not in profit no matter where it goes to. substitution for) his own services, in M 2 164 HOW RATEABLE. [PART Rates and taxes. Tenant's profi allowance email if any. Repairs of the chancel or any sura in respect of personal services as officiating minister ; l or payments to the Governors of Queen Anne's Bounty in liquidation of the principal and interest of a loan on mortgage of the tithes. 2 (2) Poor rate and other usual tenant's rates and taxes inci- dent to the occupation, e.g. General Rate and Lighting Rate and Tenant's Property Tax ; 3 First Fruits, Tenths and any other ecclesiastical dues of a similar nature ; 4 but not Land Tax, for it does not usually fall on the tenant. 5 (3) Tenant's Profits. No one would become a tenant without the inducement of some profit, 6 but the margin of profit necessary to tempt a tenant to take, who was to be guaranteed by the above mentioned allowance against the expense of collection, bad debts, and law expenses, would probably be but small in the case of tithes, where the receipts may be estimated with considerable certainty, compared, for instance, with what would be required where there is more risk and uncertainty, as in the case of a mine. In R. v. Goodchild, 7 no further allowance was made for Tenant's Profits, but that was apparently on the assumption that the tenant would pocket something on the allowance there made for collection. In a circular of the Poor Law Board, dated May 9th, 1859, 1 R. v. Joddrell, 1 B. & Ad. 403 ; Hackney & Lamberhurst Tithe Com- mutation Rent-charge cases R. V. Goodchild, 27 L. J. M. C. 233, s. c. Goodchild v. St. John's, Hackney, E. B. & K. 1. 2 Hackney & Lamberhurst Tithe Commutation Rent-charge Cases R, v. Hawkins, 27 L. J. M. C. 248 ; s. c. Hawkins v. Lamherliurst, E. B. & E. 55. 3 R. v. Goodchild, supra note *. 4 Ibid. * Ibid. 6 Ibid, and R. v. Capel, 9 L. J. M. C. 65 ; 12 A. & E. 382. 7 Supra note ! . III.] WOODLANDS. 165 (before the Mersey Dock Cases), it is directed that an allow- probably not ' ' allowable as a ance is to be made for repairs to t.Vm rha.npfi1. but there do not deduction. appear to be any judicial decisions on the point, and it is apprehended that such a deduction would not be admissible since the MerseyDocfc~Case8, Where tithes have been commuted under the General Payments in Tithe Commutation Act of 1836, the tithe commutation rent- under the charge is rateable in like manner as the tithe for which it is substituted ; l and where tithes have been commuted by local or private acts, in the city of London or elsewhere, the unde T lo ^ l k J or private Act, rateability of the payments in commutation depends on the depends on the terms of the particular Act. Unless the Act in question pro- Act, vides that the payments are to be free from poor rates they are rateable on the general principle which was established before the General Commutation Act, that any composition, modus, or assessment in lieu of tithe is rateable in like manner as the tithe itself. 2 Where it is provided that such payments are to be free if free of rate from poor rate, and therefore the vicar is not rateable, 3 then deducted by they are not allowed as a deduction in estimating the rate- the occu P ier - able value of the occupation of the occupier who pays them. 4 SALEABLE UNDERWOODS, PLANTATIONS, AND WOODS. The Eating Act of 1874, 5 enacts by section 4, that "The Rating Act of gross and rateable value of any land used for a plantation or Section 4. 1 6 & 7 Will. IV. c. 71, sec. 69. 863 ; Mitchellv. Fordham, 5 L. J. (O. 2 Lowndes v. Home, 2 Wm. Bl. S.) M. C. 79 ; 6 B. & C. 274; R. v. 1252 ; R. v. To-tns, 1 Dougl. 401 ; Rann Shaw, 17 L. J. M. C. 137 ; 12 Q. B. 419. v. Pickin, Cald. 196 ; R. v. Boldero, 4 Hackett v. Long Bcnnington, 33 4 B. & C. 467 ; 6 Dow. & Ry. 557. L. J. M. C. 137 ; 16 C. B. N. S. 38. 3 Chatficld v. Rushton, 3 B. & C. > 37 & 38 Viet. c. 54. 166 HOW RATEABLE. [PART Sub-sec, (a). Sub-sec. (V). Sub. -sec. (c). Section 5. a wood, or for the growth of saleable underwood, shall be estimated as follows : " (a) If the land is used only for a plantation or a wood, the value shall be estimated as if the land, instead of being a plantation or a wood, were let and occupied in its natural and unimproved state." It has been decided that the value of sporting rights is to be taken into account in estimating, under sec. 4, sub-sec, (a), the rateable value of the land in its natural and unimproved state. 1 " (b) If the land is used for the growth of saleable under- wood, the value shall be estimated as if the laud were let for that purpose." In rating land under sub-sec. (6), if it is not actually let, the data for estimating the rent it might reasonably be ex- pected to fetch, will be the profits it produces communibus annis^ Underwoods actually produce profit, not every year but only once in so many years, when they are cut down. The annual profit must therefore be calculated by dividing the profit produced in the year in which they are cut down, by the number of years during which they are allowed to grow before being cut. 3 " (c) If the land is used both for a plantation or a wood and the growth of saleable underwood, the value shall be estimated either as if the land were used only for a plantation or a wood, oj as if the land were used only for the groAvth of the saleable underwood growing thereon, as the assessment committee may determine." Section 5 provides that any tenant holding under a lease or agreement made previous to the Act, such land as is referred to in section 4, sub-sees, (a) and (c), may deduct from i Eyton v. Mold, 6 Q. B. D. J3 ; L. J. M. C. 39. 2 See R. v. Mirfield, 10 Eagt, 219, and page {)*, supra. III.] RIGHTS OF SPORTING. 167 bis rent, during the continuance of the lease or agreement the rates due to any increase in his rateable value caused by the Act. RIGHTS OF SHOOTING, FISHING, ETC. The Eating Act of 187-i 1 provides by section 6 as follows : Sporting rights. "(1) Where any right of fowling, or of shooting, or of J^ 8 ^ taking or killing game or rabbits, or of fishing (hereinafter Section 6. referred to as a right of sporting), is severed from the occu- Sub-sec, (l). pation of the land and is not lei, and the owner of such right receives rent for the land, the said right shall not be separately valued or rated, but the gross and rateable value of the land shall be estimated as if the said right were not severed ; and in such case if the rateable value is increased by reason of its being so estimated, but not otherwise, the occupier of the land may (unless he has specifically con- tracted to pay such rate in the event of an increase) deduct from his rent such portion of any poor or other local rate as is paid by him in respect of such increase ; and every assess- ment committee, on the application of the occupier, shall certify in the valuation list or otherwise the fact and amount of such increase. " (2) Where any right of sporting, when severed 2 from the Sub-sec. (2). occupation of the land, is let, either the owner or the lessee thereof, according as the persons making the rate determine, may be rated n,s the occupier thereof. " (3) Subject to the foregoing provisions of this section the Sub-sec. (3). 1 37 & 38 Viet. c. 54. 2 See Kenrick v Vuilsfield, 5 C. P. D. 41 ; 49 L. J. M. C. 27, 168 HOW RATEABLE. [PART Sub-sec. (4). When not indirectly owner of any right of sporting, when severed from the occu- pation of the land, may be rated as the occupier thereof. " (4) For the purposes of this section, the person, who, if the right of sporting is not let, is entitled to exercise the right, or who, if the right is let, is entitled to receive the rent for the same, shall be deemed to be the owner of the right." The above provisions relate to the rating oi sporting rights, only when severed from the occupation of the land. When not severed they are, as they were before this Act, indirectly rated, by assessing the land at the amount for which it would let to a yearly tenant, its value being enhanced by its capacity for sporting purposes. 1 Lunatic asylums. Rateability limited to LUNATIC ASYLUMS. There is a statutory provision with regard to the rating of Lunatic Asylums, which, as it relates rather to quantum than to rateability in the abstract, may be more appropriately placed in this division of the work than in that where the total exemptions from rateability by statute are placed. It was provided by the 16 & 17 Viet. c. 97, sec. 35, that " no lands or buildings already or to be hereafter purchased or acquired, under the provisions of any former Act or this Act, for the purpose of any asylum (with or without any additional building erected or to be erected thereon), shall while used for such purposes be assessed to any county, parochial, or other local rates at a higher value, or m.nrp. i Eijton v. Mold, 6 Q. B. D. 13 ; 50 L. J. M. C. 39. See also Hilton ,t Wf'lkcrfidd v. Bowes, L. K. 1 Q. B. 359; 35 L. J. M. C. 137; R. v. Battle, L. K. 2 Q. B. 8 ; 36 L. J. M. C. 1 ; R. v. Williams, 2 L. T. 0. S. 76. III.] METROPOLIS VALUATION ACT. 169 improved [rent than the value or rent at which the, aama value of land were assessed at the time of such purchase or Used ' for the purposes of any asylum/ was held iuCongreve chased - v. Upton} to cover the residence appropriated to a medical doctor superintendent although not within the asylum walls, but not a residence without the walls appropriated to the and chaplain. chaplain ; the distinction apparently being based on the fact that the former is, but the latter is not, required by the Act to be resident. It was held in -R. v. Fulbourn? that a farm and garden Farm and partly cultivated by the lunatics were ' used for the purposes f**^ > of the asylum' and entitled to the benefit of the section, although profit was made from them, provided that their primary object was, not profit, but the healthful employment of the lunatics, LAND GENERALLY METROPOLIS VALUATION ACT. All rateable hereditaments falling under the general head other here- of ' lands,' which have not been made the subject of special mention, are to be rated in accordance with the Parochial general principles. Assessment Act and the general principles which have been elucidated above. (Pages 81 to 141.) It should be remembered that 'land' includes not only 'Land 'not the face of the earth but everything under or over it 3 hm ] ted *? tha surface of the " Land hath in its legal significations an indefinite extent, earth. upwards as well as downwards." 4 The parish authorities 1 33 L. J. M. C. 83 ; 4 B. & S. 3 Electric Telegraph Co. v. Salford, 857. 24 L. J. M. C. 146 ; 11 Ex. 181. 2 34 L. J. M. C. 106 ; 6 B. & S. Burn's Justice, Vol. IV., p. 190 451. (29th edition). 170 HOW RATEABLE. [PART Rating in the metropolis. Metropolis Valuation Act. Definitions of gross and rateable value Limit of deductions. are therefore entitled to as many separate contributions to the poor rate as there are in existence separate rateable occupations, whether on, above, or below the surface. For instance, there may be separate rateable occupations one above the other, in respect of a mine, gas and water mains, a tramway, a bridge, and a telegraph wire. Metropolis Valuation Act. The rating of property within the metropolis is governed by the Valuation (Metropolis) Act of 1869. 1 That Act, however, did not interfere with the general principles of rating. Its object was to promote uni- formity, and it mainly deals with matters of procedure. It contains a better definition of ' gross estimated rental ' (for which it substitutes the term ' gross value ') than previously existed ; namely, (< The term * gross value/ means the annual rent which a tenant might reasonably be expected, taking one year with another, to pay for an hereditament, if the tenant undertook to pay all usual tenant's rates and taxes, and tithe commutation rent-charge, if any, and if the landlord undertook to boar the cost of the repairs and in- surance, and the other expenses, if any, necessary to maintain the hereditament in a state to command that rent. The term ' rateable value,' means the gross value after deducting therefrom the probable average cost of the repairs, insurance, and other expenses as aforesaid." It also divided rateable hereditaments into eleven classes, and fixed a proportion or percentage for each respective class, as the maximum allowable by way of deduction from the gross value in calculating the rateable value. For instance, in class 1, consisting of houses and buildings, or either of them, without land other than gardens, where the gross value is under 20, the maximum of such deductions is fixed at 25 per cent., or one-fourth; and in class 8, consisting 32 & 33 Viet, c. 6?. III.] METROPOLIS VALUATION ACT, 171 and manufactories, the maximum deduction is 33^ per cent.. or one-third ; but no maximum is fixed for the classes which contain tithes^ railways, waterworks, &c. ; in respect of which the deductions are to be determined according to the cir- cumstances and the general principles of law. INDEX. ACTUAL USER, as an element of rateable occupation, 60 62 ANNUAL VALUE, is rent of a hypothetical yearly tenant, subject to a deduction for landlord's repairs, &c. , 83 APPORTIONMENT, must be on the parochial principle as opposed to the mileage system, 114118 except where either would produce the same result, 117, 118 ARMY, occupation for purposes of the, 75 ARTISTIC SOCIETIES, exemption of, 2834 ASSIZE COURTS, not rateable so long as used for Crown purposes, 75 but rateable if used otherwise, 80 AVERAGE VALUE, rating to be on, 93 95 exceptions to rating on, 96 98 BARE TRUSTEE, not now exempt from rateability, 69 73 BARREN ROCK, example of, 71, 87 BENEFICIAL OCCUPATION, 6974 BRANCH LINE, when incorporated with the trunk, both to be rated as one concern, 122, 133 BREWERY, whether rateable value of increased in respect of Tied-Houses, 104, 105 174 INDEX. BRICKFIELDS, how rateable, 9698 BRIDGES, how rateable, 157 BORROWED MONEY, interest on, not an allowable deduction, 151 CANAL TOLLS, 21 CANALS, how rateable, 144, 152154 under private Acts, 152 locks on, 153 CANTEEN, 103 CEMETERIES, how rateable, 9698 CHALK-PIT, 101 CHANCEL, repairs of, whether a deduction in assessing tithes, 164' CHARITIES, hospitals, &c., not now exempt See BENEFICIAL OCCUPATION, 6974 CHURCHES AND OTHER PLACES OF WORSHIP, not rateable, 26 COMMON, RIGHT OF, not rateable, 39, 41 owned and occupied by corporation subject to right of pasturage in freemen, 73 COMMUNIBUS ANNIS, 9398 CONTRACTOR, occupying for purpose of performing contract, 57 CONTRIBUTIVE VALUE, 119138 conflict of cases on, 119, 134 does not involve double rating, 120 a question between parishes, 121 summary of the cases on, 123 131 whether fruits of the occupation or not, depends on circumstances of each case, 131 held not rateable in the Haughley Case, 128, 134 authorities in support of the Haughley Case, 134, 135 contra, 136 result of the cases on Coutributive Value, 137 INDEX. 175 CONTROL BY LANDLORD, inconsistent with rateability of tenant, 4757 so is even a power of control, although not exercised, 49, 50 COPROLITES, 67 CORPORATION, occupying waterworks under restrictions as to profits, 89, 90 occupiers of common subject to right of pasturage in freemen, 73 CORPUS EXHAUSTED BY OCCUPIER, as in the cases of brickfields, cemeteries, and quarries, 99, 100 COUNTY JUSTICES, when rateable for Assize Courts, &c. , 80 CROWN, property occupied by the, not rateable, 34, 74 80 or by servants of the Crown as its agents, 74 but subjects occupying Crown property for their own benefit are rateable, 79 and so are servants of the Crown if their occupation_ is in excess of what is necessary for their service, 79 CURATE, salary of not a deduction in rating tithes, 163 DEDUCTIONS ALLOWABLE, from rent repairs, insurance, &c., 84 from gross receipts working expenses, value of indirect sources of profit, tenant's deductions, and landlord's deductions, 144 150 DEDUCTIONS NOT ALLOWABLE, 151 DEFENCE OF THE REALM, lands taken under statute for, rateable at then existing value only, 75 DEFICIENCY, in rates during construction of Railway, 151 DEMISE, whether demise or license depends on substance of the agreement rather than the particular words used, 45 DIFFERENT OCCUPIERS, of parts of a house separately rateable, 62 DIRECT AND INDIRECT SOURCES OF PROFIT, distinction between, 138 how each to be rated, 140 DISCRETIONARY EXEMPTION, of Sunday and Ragged Schools, 26 176 INDEX. DOCK DUES, when indirectly rateable, 23 DOCKS, how rateable, 144, 154 DOUBLE EATING, not allowable, 8486 as an objection to rating on contributive value, 120 DRAINAGE RATES, of Metropolitan Board of Works, 20 EASEMENT, not rateable, 39, 4147 EMPTY HOUSES, 37, 60, 61 ENHANCED VALUE, 98113 enhancement by Trade Profits, 99 105 by Fixtures, 105113 EQUALITY OF RATING, 8184 arrived at by assuming a hypothetical tenant, 82 the P. A. Act takes a hypothetical yearly tenancy as the standard, 83 gross estimated rental and rateable value, what, 84 EXCEPTIONAL PROFITS, to be averaged, 94 EXCEPTIONAL REPAIRS, to be averaged, 94 EXCESS, servant though occupying as servant, rateable for, 57, 79, 80 EXCLUSIVE ENJOYMENT, may exist without rateable occupation, 49, 50, 51 EXEMPTIONS FROM RATEABILITY, Personal Property, 812 Turnpike tolls, 19 Places of Worship, 26 although used for Sunday, infant, or charity schools, 27 Sunday and Ragged Schools may be exempted at the discretion of the Rating authorities, 27, 28 Literary, Scientific and Artistic Societies, property occupied by, 2834 procedure for obtaining exemption, 29 what societies within the exemption, 29, 30 promotion of science, literature or the fine arts, must be the jn-'ui object of the society, 30, 31 criterion of primary object, 31 INDEX. 177 EXEMPTIONS FROM RATEABILITY contimied. exemption lost if society has not the exclusive use of the property, 31 voluntary contributions to, definition of, 32 no dividend, &c., to be made, 33 division of proceeds on dissolution of Society, 34 Storehouses of Volunteer Corps exempt by statute, 34 Lighthouses vested in Trinity House or Board of Trade exempt by statute, 34 Property occupied by, or for the purposes of the Crown, 35, 7480 EXEMPTION OF PERSONALTY, 3, 812 EXISTING VALUE, 86-93 EXTERNAL ENTRANCE, control of, a criterion of rateable occupation, 49, 51 FEEDER VALUE. See CONTRIBUTIVE VALUE, 119138 FERRY TOLLS, 24 FISHING, RIGHT OF, rateable under Rating Act 1S74, 18 how rateable, 167 FIXTURE, attachment to the soil as, in certain cases a criterion of rateable occupation, 68 FIXTURES, when enhancing rateable value, 105113 tests whether would be let to the hypothetical tenant, 106 whether essential to the business, 106 whether permanently attached for the improvement of the building or only attached for their more convenient use, 106, 107, 110, 111 three classes of, 109, 110 FLOATING DOCK, 108 FLOATING PIER, 108 FORTIFICATIONS, lands taken under statute for, 75 GAS WORKS, now rateable, 144, 155, 156 GENERAL PRINCIPLES of rating are involved in the 43 Eliz. c. 2, and Sir Anthony Earby'a Case, 6 Rating to be Equal, 8184 INDEX. GENERAL PRINCIPLES- continued. Property not to be rated tsvice over, 84 86 Rebus sic stantibus, 86 93 Communibus annis, 93 98 Enhanced Value, 98113 Parochial Principle, 114119 Contributive Value, 119138 GOODWILL, not an allowable deduction, 151 GROSS ESTIMATED RENTAL, what, 84, 143, 144 GROSS RECEIPTS, 143 GROSS VALUE, what, 84, 143, 144 GUARANTEE, by Railway Co. to branch line, 124, 132 HARBOUR DUES, 23 HOSPITALS, now rateable, 6974 HOSPITAL SURGEON, residence of, 53 HOUSE, empty, 37, 60, 61 user of part renders the whole rateable, 61 but the same person need not be rated for the whole, 62 HYPOTHETICAL TENANT, assumed in order to rate equally, 82 84 deduction from rent of, for landlord^ repairs, &c., 84, 150 must be assumed to use property in the same way as existing occupier, 86, 88, 122, 133 whether fixtures would be let to, a test of whether they enhance the rateable value of the occupation, 106 whether he would receive profits relevant to question of contributive value, 122134 IMPROVED VALUE, 87 INCOME TAX, on tenant's profits, not an allowable deduction, 147 INCORPOREAL HEREDITAMENTS, not rateable, 38 but tithes an exception, 11, 12 INDEX. 179 INCUMBENT, rateable for tithes, 16 query whether such rateability was originally as occupier or as inhabitant, 13 INDIRECT RATING of tolls, conditions of, 19 26 of trade profits, 99105 INDIRECT SOURCES OF PROFIT, what are, 138 test for distinguishing, 139 to be rated separately from direct sources of profit, 140 value of, a deduction in assessing the directly producing portions, 141 example, 143 INDUSTRIAL SCHOOLS, 75 INHABITANT, rateability as, imposed by the 43 Eliz. c. 2, 8 commonly not insisted on in practice, 9 now abolished by the 3 & 4 Viet. c. 89, 1 1 INTEREST on capital, an allowable deduction, 148 on borrowed money, not allowable, 151 INTERMITTENT USER, 65 JOINT OCCUPATION, 59, 85 LAIRAGE DUES, 25 LAND includes all below and above as well as on the surface, 38, 169, 170 LANDLORD'S DEDUCTIONS, 84, 148 LAND TAX not a deduction in assessing tithes, 164 LAW EXPENSES, a deduction from gross receipts under the head of working expenses, 147 LICENSE, not rateable, 38, 41 47 whether license or demise depends rather on the substance than the words of the agreement, 45 license to moor, 42 LIGHTHOUSE TOLLS, 22 N 2 180 INDEX. LIGHTHOUSES, vested in Trinity House or Board of Trade, 34 LINN^EAN SOCIETY, held not rateable, 30 LITERARY, SCIENTIFIC, AND ARTISTIC SOCIETIES, exemption of property occupied by, 28 conditions precedent to exemption, 29 what societies are within the exemption, 30 promotion of literature must be the primary object, 30 property must be used by the society exclusively, 31 society must be supported by voluntary contributions, 32 definition of voluntary, 32, 33 transferable shares in the society, 33 the society must not make any dividend or bonus, 33 division of society's property on dissolution, 34 LOCKS, 153 LODGER, 50 LUNATIC ASYLUMS, statutory limit to rateability of, 168 residence of doctor, 169 and of chaplain, 169 farm and garden cultivated by the patients, 169 MACHINERY, when rateable value enhanced by, 105 113 MARKET TOLLS, 25 METROPOLIS VALUATION ACT, 144, 170 MILEAGE SYSTEM, may only be used when it gives the same result as the parochial principle, 117 MILL, disused mill held rateable as warehouse for machinery, 60 MINES, all mines now rateable, 17 how rateable, 158162 (a) where royalty or dues wholly reserved in kind, old law not altered by the Rating Act 1874, 159 (b) tin, lead or copper mines, 159 where lease without fine, 159 where lease granted wholly or partly on a fine, 160 or where occupied by the owner, 160 (c) all mines not coming under (a) or (&), 161 allowance for tenant's profits to be a liberal one, 161 mine extending into different parishes, 162 INDEX. 181 MONASTIC SOCIETIES, relief of the poor by, 1 policy of, in relation to tithes, 12 MOORINGS, 40, 42 NATIONAL OBJECTS. See PUBLIC PURPOSES. NAVIGATION DUES, 21 NAVY, occupation for purposes of the, 75 NEWS-ROOM, enhancement of value of, by subscriptions of non-proprietors, 103 not exempt if primary object is convenience of subscribers, 31 OCCUPATION. See RATEABLE OCCUPATION. OCCUPIER, rateability as, 8, 36 no one who can be rated unless there is an occupier within the statute, 36 OCCUPIER'S SHARE, 148 OWNER, value to, is the standard of value under the P. A. Act, 83 PARAMOUNT OCCUPATION, 47 PARISH, the unit of area, 3, 114 PAROCHIAL ASSESSMENT ACT, object of, 83 standard of value established by, 83 PAROCHIAL PRINCIPLE, 114118 involved in the 43 Eliz. c. 2, 114 must be preferred to the mileage system, 115 unless the mileage system would produce the same result, 117 PERMANENCE, as an element of rateable occupation, 64 with reference to time, 64 66 with reference to place, 66 68 PERSONALTY, not now rateable, 8 12 was formerly rateable, 8 usage not to rate, 9 statutory exemption of, by 3 & 4 Viet. c. 89, 11 182 INDEX. PLACES OF WORSHIP, not rateable, 26 PLANTATIONS, rateable under Rating Act 1874, 18 how rateable, 166 POOR-RATE, origin of, 1 a personal tax, 36 POSSESSION, as an element of Rateable Occupation, 38 60 POST OFFICE, occupation for purposes of the, 75 PRESENT VALUE, rate to be on, 87 See REBUS Sic STANTIEUS, 86 93 PRINCIPLES : Rating to be Equal, 8184 Property not to be rated twice over, 84 86 Rebus sic stantibus, 86 93 Communibus annis, 93 98 Enhanced Value, 98 il3 Parochial Principle, 114 119 Contributive Value, 119138 PRISONS, 75 PRIVATE BOX, 50 PROFITS, where received immaterial, 118 capability of producing profit is sufficient for rateability, 72 immaterial what becomes of profits when received, 73 profits of trade when indirectly rateable, 99 105 exceptional profits, 94 PROMOTION OF COMPANY, expenses of, not an allowable deduction, 151 PUBLIC PURPOSES, 75, 76 QUARRIES, have always been rateable, 17 how distinguished from mines, 17 how rateable, 96, 98 INDEX. 183 QUEEN ANNE'S BOUNTY, interest on loans from, not an allowable deduction in assessing tithes, 164 QUIT-EENTS, not rateable, 84 RACECOURSE, 101 RAGGED SCHOOLS, may be exempted by the rating authorities at their discretion, 27 definition of, 28 RAILWAYS, practically rated on trade profits, 99, 100 running powers, 43 through tickets, 86, 146 stations indirect sources of profit, 138, 139, 148 importance of railway rating, 142 how rateable, 142 in each parish, 114 119 (parochial principle), and 119 138 (contri- butive value) . rent of the hypothetical tenant arrived at by analysis of the balance- sheet, 142 example, 143 gross receipts, 145 working expenses, 146, 147 stations and other indirect sources of profit, 148 tenant's deductions, or occupier's share, 148 landlord's deductions or statutable deductions, 150. deductions not allowable, 151 deficiency in rates during construction, 151 RATE ABILITY, none without occupation, 37 RATEABLE OCCUPATION, no rateability without, 36 elements of, 37 Possession a necessary element of rateable occupation, 38 (a) easement or license insufficient, 38, 41 47 (b) possession must be exclusive of paramount control, 47 57 and even of a mere power of control though never exercised, 49 right of entry, 47 of general control, 48 occupation as servant not rateable, 51 58 184 INDEX. RATEABLE OCCUPATION continued. but servant rateable for excess, if any, 57 cases on occupation as servant, 55 57 (c) possession must be exclusive not only of the owner but of all other persons, 58, 59- Actual User a necessary element of rateable occupation, 60 62 user of part of a house renders the whole rateable, 61 Permanence as an element of rateable occupation, 64 68 (a) with reference to time, 64 may exist though user intermittent, 65 or though occupation terminable at short notice, 65 (b) with reference to place, 66 68 occupation shifting in locality, 66 67 attachment to soil as a fixture, 68 shifting occupation, 67 temporary occupation, 65 Profit : Occupation must be beneficial, 69 74 old view of the law as to bare trustees, 69 modern rule, 73 Title immaterial if possession exists in fact, 37, 62, 63 RATEABLE VALUE, is Gross Estimated Reutal less certain dediictions, 84 standard of, is value to the owner, i.e., value to let, 83 definition of, 143, 144 (in notes) RATES AND TAXES, liability to pay, evidence of possession, 47 deduction to be made for, in estimating rateable value, 147 RATING, to be equal, 8184 not to be double, 8486 RATING ACT, 1874, all mines rateable since, 17 how rateable, 158162 plantations and woods, 18 how rateable, 165, 166 sporting rights, 18 how rateable, 167, 168 REAL PROPERTY, rateable but not personalty, 8 12 REBUS SIC STANTIBUS, 8693 REFORMATORIES, 75 RELIGIOUS TRACT SOCIETY, not exempt from rating, 30 RENEWAL OF WAY, 150 INDEX. . 185 KENT-CHARGE, in lieu of tithes, rateable like the tithe itself, 17 REPAIRS, liability to, evidence of possession, 47 deduction for to be on average amount of, 95 of permanent way, 146 exceptional repairs, 94 REQUIREMENT TO RESIDE, 54 RESTRICTED OCCUPIERS, 89, 90 RISK, the allowance for tenant's profits to vary with the amount of, 161, 162 small in the case of tithes, 164 RISKS AND CASUALTIES, allowance for, 149 ROLLING STOCK, allowance for depreciation of, 149 ROYALTY, brickfields and quarries, 96 mines, 158 RUNNING POWERS, do not amount to rateable occupation, 43 SALEABLE UNDERWOODS, rateable under 43 Eliz. c. 2, 18 to be rated on average value, 94, 166 how rateable under R.ating Act 1874, 166 SCHOOLS, Sunday, infant and charity. See SUNDAY SCHOOLS; ragged, RAGGED SCHOOLS ; industrial and training, 75 SCIENTIFIC SOCIETIES. See LITERARY SOCIETIES. SEPARATE OCCUPATION, of different parts of a house, 62 of part of a property not rateable as a whole, 91 93 SERVANT, occupation as, 51 57 rateable for excess, 57, 79, 80 SEWERS, 92 SHIFTING OCCUPATION, 67, 68 186 INDEX. SHOOTING, RIGHT OF, rateable under Rating Act 1874, 18 how rateable, 167 SIR ANTHONY EARBY'S CASE, 4 SPORTING RIGHTS, rateable under Rating Act 1874, 18 how rateable, 167 SPRING, 102 STALLAGE, 25 STANDARD OF VALUE, under P. A. Act, is value to the owner, 83 STATIONS, of railway company, 139, 140, 143, 148 STATUTABLE DEDUCTIONS, 148 STATUTES, 43 Eliz. c. 2 (Levy of Rate), passim 10 Geo. HI., c. 75 (Local), 50 3 Geo. IV., c. 126, s. 51 (Turnpike Act, 1822), 26 4 Geo. IV., c. 95, s. 31 (Turnpike Act, 1823), 26 3 & 4 Will. IV., c. 30 (Exemption of Places of Worship), 26] 6 & 7 Will. IV., c. 71, s. 69 (Tithe Commutation Act, 1836), 16, 165 6 & 7 Will. IV., c. 96 (Parochial Assessment Act), passim 3 & 4 Viet., c. 89 (Exemption of Inhabitants as such), 3, 11 5 & 6 Viet, c. 79 (Railway Passenger Duty), 147 6 & 7 Viet., c. 36 (Exemption of Literary, Scientific or Artistic Societies), 28, 78 7 & 8 Viet., c. 85, s. 9 (Railway Passenger Duty), 147 8 & 9 Viet., c. 18, s. 133 (Lands Clauses Consolidation Act), 151 16 & 17 Viet., c. 97, s. 35 (Lunatic Asylums Act, 1853), 168 17 & 18 Viet., c. 86 (Reformatories), 75 20 & 21 Viet., c. 55 (Reformatories), 75 23 & 24 Viet., c. 112, s. 33 (Acquisition of lands for Defence of the realm), 75 25 & 26 Viet., c. 103 (Union Assessment Committee Act, 1862), 143, 159 26 & 27 Viet., c. 65, s. 26 (Volunteer Force Acts Consolidation Act), 34 29 & 30 Viet., c. 118 (Industrial Schools), 75 31 & 32 Viet., c. 110, a. 22 (Telegraph Act, 1868), 75 32 & 33 Viet., c. 67 (Metropolis Valuation Act, 1869), 144, 170 37 & 38 Viet., c. 54 (Rating Act, 1874), passim STOCK-IN-TRADE, 10, 11 STOREHOUSES OF VOLUNTEER CORPS, not rateable, 34 INDEX. 187 SUNDAY SCHOOLS, may be exempted by rating authority, 27 definition of, 28 TELEGRAPH WIRES, occupation by, 38, 75 TEMPORARY OCCUPATION, 65 TENANT, not rateable as well as landlord, 85 occupation as tenant or as servant, 51 57 TENANT-AT-WILL, rateable, 66 TENANT'S DEDUCTIONS, 148 TENANT'S PROFITS, allowance for, 149 TENANTS-IN-COMMON, rateable, 59 TERMINALS, 145 THROUGH FARES, only one railway company rateable for, 86, 146 TIED-HOUSES, 104, 105 TITHES, appropriate, impropriate and vicarial, 12 tithes appropriate and impropriate clearly rateable, 12 tithes vicarial, also rateable, 16 authorities on rateability of tithes vicarial, 13, 16 payments in lieu of tithe rateable in like manner as the tithe itself, 16 tithes now rateable, 162 165 such deductions to be made as are analogous to those allowed in the case of corporeal hereditaments, 163 examples, 163164 payments in commutation, under general Act, rateable ; under local or private Acts, rateable or not, according to the terms of the Act in question, 165 but if free from poor rate not a deduction in the hands of the occupier, 165 TITLE, immaterial if possession exists in fact, 62, 63 but relevant to explain user, 44 substance of agreement constituting title more important than mere words, 45 188 INDEX. TOLLS, not rateable per se, 19 but in some cases rateable indirectly as profits of the occupation, 19 conditions of rateability, 20 canal tolls, 21 navigation dues, 21 lighthouse tolls, 22, 34 ferry tolls, 24 market tolls, lairage and stallage, 25 but turnpike tolls not rateable even indirectly, 25 TRADE PROFITS, indirect rating of, 99 105 TRAMWAY, occupation by, rateable, 42 now rateable, 144, 156, 157 TRESPASS, ability to maintain, relevant to the question whether possession exists, 43 TURNPIKE TOLLS, not rateable either directly or indirectly, 25 UNDERWOODS. See SALEABLE UNDERWOODS. UNIONS, 3 UNIVERSITY, not within exemption as being for Crown purposes, 76, 77 UNIVERSITY BARGE, 58 UNOCCUPIED HOUSES, 61 (note) USER INTERMITTENT, 65 WATERPIPES, occupation of land by, 38, 63, 155 WATERWORKS, how rateable, 144, 155, 156 in hands of a restricted occupier, 89, 90 WAYLEAVE, 41 INDEX. 189 WOODS, rateable under Rating Act 1874, 18 how rateable, 166 WORKING CAPITAL, 149 WORKING EXPENSES, 146 YEARLY TENANCY, rent on, standard of rateable value, 83 ZOOLOGICAL SOCIETY not exempt, for its primary object is the gratification of its members, 30,31 THE END. BRADBURY, AGNEW, & CO., PRINTERS, WHITEFRIARS. SWEET & MAXWELL, LIMITED LAW BOOKS. Deeds. Rules for the Interpretation of Deeds. With a Glossary. By Sir H. W. ELPHIXSTOXE,M.A.,R. F.NORTON, LL.B., B.A., find J. W. CLARK, M.A. 2os. 1885. Designs. EDMUNDS & SLADK on Copy- right and Designs. Being: a Complete Treatise on the Law and Practice in the Courts and at the Patent Office. By LEWIS EDMUNDS, D.Sc., and W. MAR- CUS-SLADE. 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