Page images

not in the habit, as far as my experience went, of giving up anything tbat he could contend for, cr that he thought there was any chance of contending for successfully. Therefore I think we could not decide otherwise without flyiug in the face of a decision of a court of co-ordinate jurisdiction. I need not go through the items of the schedule again, because I agree entirely in the application of that principle to the particular numbers with which my brother Pollock's judgment has dealt.

Judgment for appellants.—(L.R. (1896), 1 Q. B., p. 287.)





(MAY 18TH, 20TH, AND 218T, AND JULY 27TH, 1897.]

(For previous stage of this case see p. 60 ante.)

Easement-Opening Locks on River-- Dominant and Serrient Tenement

- PrescriptionPresumption of Legal OriginLost GrantPrescription Act, 1832 (2 f3 Will. 4 c. 71), 8. 2.

An easement, exercised for the benefit of the dominant estate, is not invalid merely because from the very nature of the right its exercise by the dominant estate confers some benefit upon other tenements.

The corporation of Godmanchester as owners of certain lands had for more than 200 years opened as of right the gates of certain sluices or locks belonging to the appellant upon the River Ouse in time of flood or likelihood of flood in order to prevent damage to those lands.

Held, That the easement was good and was none the worse because the exercise of it also benefited lands belonging to other persons; and that the corporation could maintain their right either by Section 2 of the Prescription Act, 1832, or by the fiction of a lost grant.

The decision of the Court of Appeal (1896], 1 Ch. 214, affirmed. (L. R. (1897), H. L., pt. 5, p. 696).





[MARCH 3RD, 4TH, 9TH, 10TH, 11th, 16TH, 17TH, 18TH, AND 23RD,

AND AUGUST 11TH, 1897.]

Conveyance -Award - Construction Presumption-Rebuttal-Land

abutting on Rivvr-Fishery-River Bed ad medium filum—Commons-Inclosure— Evidence.

The presumption that a conveyance of land abutting on a river passer the river bed ad medium filum (when such bed belongs to the grantor) may be rebutted by evidence of a contrary intention, and the particulars of sale of the land are admissible as evidence to rebut such presumption. In the case of an award under an Inclosure Act it is questionable whether such presumption would apply.

An award of a piece of land abutting on a river, made under the provisions of an Inclosure Act, described the land as bounded by the river, and specified its dimensions, which were not sufficient to include half the bed of the river ; and the plan annexed to the award did not include half the bed of the river. The river was not referred to either in the Act or award, except as being a boundary of the land, and, prior to the date of the Act, the lord of the manor owned a several fishery in the river, which was not waste of the manor or the subject of commonable rights.

Held, that the river did not pass by the award.(L. T. [1897], Ch. D., vol. lxxvii. p. 357.)





[JULY 23RD AND AUGUST 11TH, 1897.]

Rating-Poor Rate-Railway Lines in and about Station-Station

Appurtenances- Part of Railway directly earning Profits.

Lines that are primarily used for carrying passenger and goods traffic are rateable as part of the railway directly earning profits, and not as station appartenances. And it makes no difference that shunting and unloading is done, or empty carriages left upon them.


LAWRANCE, J. This case raises the question how certain lines should be assessed, and if they should be assessed on what I will call the parochial system. That is, whether they are part of the line earning profits, or part of the station at Stockport. Attention has been called to the lines in the case of The Great Eastern Railway Company v. The Orerseers of the Parish of Fletton, but I think the lines numbered 5, 21, 23, 24, 26, 27, 34, 35, 36, 38, and 39 are in a different position. Now No. 5 runs into buffers. It is a line on which the traffic comes to a shed, but if it is blocked, provision is made for reaching that shed by others, which are utilised by means of turntables. This No. 5 line is clearly part of the line itself, earning profits, and I come to the conclusion that this line is to be assessed on the parochial system. The next line is No. 21, which goes into Lord Vernon's coal-yard and is described in paragraph 6 of the case. That seems to me to be exactly in the same position as No. 5. Nos. 23, 24, 38, and 39 are used for running through goods trains, and these lines are primarily and principally used for traffic on the lines. I do not think that the fact that some shunting is done on them, or that a train may stop the night there, matters. They are used for carrying goods through the station. Nos. 26, 27, 34, 35, and 36 are lines which run into bays as described in the case. I cannot see how the fact that carriages stand on them can stop them being passenger traffic lines. This happens in every small country station which happens to be a terminus, where the train runs in, and the engine is shunted and put on the other end. Surely in that case it could not be contended that such were not earning passenger lines. These are all lines primarily used for carrying passengers and goods traffic, and that which I have stated above deals with all the lines. The assessment committee have contended that four lines would be sufficient to carry all the traffic if there were no station at Stockport. I do not see how that matters. I think the decision of the Quarter Sessions is perfectly right, and the lines should be assessed as part of the railway directly earning profits.

RIDLEY, J. The law relating to the rating of railways passing through stations is very clearly stated in The Great Eastern Railway Company v. The Orerseers of the Parish of Fletton. The decision in that case was this, that the length of the company's railway passing through the township or parish is to be taken as a double line, and the gross receipts are to be ascertained on the parochial principle, that is to say, by taking the proportion borne by the mileage within the parish to the length of the railway between the different stations on which the total receipts are earned, and then deducting the expenses of the maintenance of all the lines in the parish whicb can be properly called or treated as directly ng the pro Thus as to the station, that its appurtenances, such as platforms, sidings, sheds, or offices, must be rated at what is known as the contractor's rate, i.e. the rent a tenant would give for them who was desirous of taking them to use for the purpose for which they were used. From that rent one would bave to deduct the expenses and the tenant's profit, and the residue is the rateable value. In the Fletton case the lines which were the subject of dispute were all through lines, and it was found as a fact in the case that no shunting took place upon them, but that the trains ran right through, and the rate was accordingly fixed at the properly ascertained receipts of the length of the railway in the parish. In the present instance, wbich to some extent differs in the facts, the lines numbered 5, 21, 23, 24, 26, 27, 34, 35, 36, 38, and 39, and which are coloured blue in the plan before me, and which I will call the blue lines, have been treated by the Court of Quarter Sessions as lines directly earning profits, and if they were right in so treating them the rate is correct, but if they were wrong, then the expense of maintaining them ought not to have been deducted from the receipts of the railway in the parish, and on the other hand these lines ought to have been assessed as a part of the station. None of these lines appear to be through lines in the sense in which those words were used in the Fletton case, for there the lines in question were used for through trains only, and no shunting or marsballing took place upon them, nor indeed did trains stop upon them, so far as appears from the statement of the case. Here, certainly, at times, all the lines are used by standing trains. No. 5 is used for the arrival and departure of goods trains at and from the goods yard, but when waggons are standing on it other lines are used for that porpose instead. The company claim it to be a running line, but allow the shed through which it passes to be a portion of the station. Line 21 does not seem in principle to be distinguishable from line 5. Lipes 23, 24, 38, and 39 are used for running goods trains passing at the back of the station when the passenger lines are occupied, but they are also used by standing goods trains and standing passenger carriages, and shunting is done on all of them. Lines 26, 34, 35, 27, and 36 are passenger lines used for local trains. They are bays into which these trains arrive and rest, or from which they depart, and the trains are sometimes shunted from their arrival bay, but sometimes start from the arrival bay at which they arrive. The trains commonly stand in the bays between the times of arrival and departure. All of these lines are constructed, maintained, and signalled as main lines. Therefore none of these lines are through lines as were those which in the Fletton case were held to be earning lines, and further if the observation of Field, J. in that case, when he says that“ if any shunting were done upon these two lines, and it was found that they had been used for shunting, then the result would properly have gone with the other assessment," is to be taken as furnishing the conclusive test, that as shunting does take place on the lines in question, they ought to have been placed on the other assessment. The reasoning, however, on which the Fletton case was decided did not rest on that observation, but on the practice of companies with regard to the use of the lines as stated in paragraphs 7, 8, 9, and 10 of the case. Shunting must take place on all lines, particularly where they pass stations, and if this were the true distinction it would be difficult to point to any lines which would be through or earning lines Further in this case lines 5, 21, 26, 34, 35, 27, and 36 are all lines which are used as arrival or departure lines or both, and the carriages or trucks rest upon them for the interval between arrival and departure, whereas no trair:s stood on the red lines which were in dispute in the Fletton case. But it does not appear to me that the bay lines Nos. 26, 34, 35, 27, and 36 can be distinguished from the admittedly through lines, for the reason that the train arrives in them, waits there, and departs therefrom. That is done for the convenience of the company and the better working of the traffic, so that the through trains may run withont interruption. The same reason appears to apply to Nos. 5 and 21, the arrival and departure lines for the goods traffic, and with stronger force to lines 23, 24, 38, and 39, which are in their primary use running goods lines, and not stopping or arrival lines. But it is further contended that the blue lines must be treated as part of the station, and assessed with it to the poor rate, because delivery takes place upon them, and reliance is placed upon the provisional orders of the Board of Trade, which regulate charges for terminals, aud which include services for “ loading, unloading, covering, and uncovering merchandise, and which shall in respect of each service include all charges for the provision by the company, of labour, machinery, plant, stores, and sheds,” but these services do not include mere arrival and departure, which must take place on one line of rails at least, and it appears to me that in a goods yard such as that at Stockport, it is very reasonable that the line on which arrival and departure takes place should be treated as a directly earning line. Though it is the beginning or end of the journey, still it is part of it. Loading and unloading, and other services called terminal, are of a different character, and take place after the journey has ceased or before it begins. The sheds, lines, and docks on and in which they take place are a part of the station, and should be assessed with it, but in the absence of authority to the contrary, I think for the reasons given that the view taken by the Quarter Sessions is the right one, and that their decision ought to be affirmed.

Judgment for the respondents.—(L. T. (1897), Q. B. D., vol. Ixxvii. p. 244.)

[ocr errors]



[OCTOBER 28TH, 1897.] Jetropolis-Building-- Temporary Structure, Erected without Licence

- Uctropolis Management and Building Act, 1882 (45 Vict. c. 14), 8. 13– London Building Act, 1894 (57 d: 58 Vict. c. 213), 8. 215. Section 215 of the London Building Act, 1894, saves only rights and

ies actually acquired, accrued, or incurred under the Acts repealed by it at the time the London Building Act, 1894, came into operation.

« EelmineJätka »