Reply to Query CLXVII. (Vol. VI., p. 236).

FENCE ADJOINING HIGHWAY-OWNERSHIP.

(A.)

If there be no enclosure award to settle the question, equity seems to suggest that the parties should agree to make the middle of the present thorn hedge the permanent boundary line between road and field.

(B.)

R. R. RowE, Fellow.

If the road is of the width specified by the inclosure award the presumption is that the ditch, fence, and bank belong to the owner of the adjoining field, although they may have originally been constructed at the cost of the parish. The highway authorities lay themselves open to an action for damages the moment they interfere with the bank, except in the case of encroachment, which is less than equidistant from the centre of the awarded width. This does not apply in the case of railways where the hedge, ditch, and fence are the property of the Company. The owner of the field is bound to maintain a fence sufficient to restrain his own stock from trespassing, though he is not liable for damage done by the stock of others who may stray on to his land, and thence find their way on to the highway.

GILBERT MURRAY, Fellow.

Reply to Query CLXVIII. (Vol. VI., p. 236).

PARTY WALL-REBUILDING-COMPENSATION.

(A.)

1. The adjoining owner is not entitled to compensation.

2. Section 87 does not empower the adjoining owner to require security for "such compensation." The compensation referred to is the work referred to in Sub-section 7, Section 83, though the use of the word "compensation" in Section 87 is calculated to mislead.

3. Certainly, upon a proper award.

4. In the case of Stokes v. Standard Bank the question of underpinning was discussed, and the word "raise" was interpreted as wide enough to cover it.

If the querist will read pages 80, 87, and 88 of volume 24 of "Transactions," he will find something on all the questions raised, and in the subsequent discussion also.

C. HERBERT BEDELLS, Fellow.

(B.)

For convenience of reference I have indicated the last four paragraphs containing the questions as (a) to (d) respectively.

(a) The "adjoining owner" is not entitled to compensation for loss

of occupation. For cases refer to Thompson v. Hill, L.T.R. (N.S.), C.P. xxii., 820; Bryer v. Willis, L.T.R. (N.S.), C.P. (year 1870), p. 643; Smith v. Copestake “Architect," 12 Dec., 1874.

(b) The 87th Section mentions "security . . . for the payment of "all such costs and compensation in respect of such work as may be "payable by the building owner," but nowhere else, that I can find, makes any mention of such " compensation" so payable. It appears to me to be a provision of security against possible neglect of the duty of the building owner to rebuild and make good after he may have pulled down.

(c) The notice does not empower the building owner "to pull down "and rebuild the wall because it is of insufficient strength for the new "building." The notice itself, according to the statement of facts given, did not state that the building owner intended to do so, or claimed the right to do so, otherwise than by giving notice and claiming the right "to do all other necessary work incidental thereto." This wording may or may not be sufficient for the purpose; on this point I am in considerable doubt. But whether the wording of the notice was, or was not, sufficient for the purpose of the notice, the notice in itself would not be sufficient for the purpose of completing the building owner's statutory rights, unless the adjoining owner expressed "his consent thereto" (Sec. 85, sub.-secs. 1 and 6). If the building owner did not express 'his consent thereto" a statutory difference has arisen, which the Act directs to be settled by surveyors. Either one surveyor is to be appointed by both owners, or two surveyors are to be appointed (one by each owner) which two surveyors are to appoint a third surveyor. And then such one surveyor, or such three surveyors, or any two of them, "shall settle any matter in dispute" between the owners by award (Sec. 85, sub-sec. 7). But it must be here noted that such award is only valid as to such matters of difference as arise from the Act, and does not extend, for instance, to such questions as ancient lights, although such questions may be the subjects of awards, if they be referred to the same surveyors, or to others, as arbitrators, by a separate and proper instrument of reference. The Building Act confers certain rights on "building owners," and " adjoining owners," but subject, firstly, to notices to be given, and secondly, to assents to be expressed, or, in the event of differences, to the award of a surveyor or surveyors, as in the Act set out. See Parts III. and IV. of the Act. The statutory award may be appealed against in the County Court, and in some circumstances in the High Court (Sec. 85, sub-s. 8, 11, and 12).

(d) As to question in last paragraph, the Act does not expressly mention the right to underpin," but Sir George Jessell (M.R.), in the case of The Standard Bank of Africa, ingeniously got over the difficulty by holding that the right to raise (Sec. 83, sub-s. 6) includes the rights to increase the height by "extending the wall in a downward "direction." I have not the reference to the Law Reports of the case, but it is mentioned in the Builder, p. 307, March 23rd, 1878.

ARTHUR HARSTON, Fellow.

(c.)

It must not be forgotten that a party wall is a wall in joint ownership, and, like a wife, must be taken for better or for worse. Its object is to prevent the waste of room occasioned by two walls, but it is necessary for one owner to exercise his rights, the adjoining owner must put up with the inconvenience.

I once had a somewhat similar, although stranger, case to that mentioned, and although I advised my client that, notwithstanding the inconvenience and loss to which he was put, I did not think he could recover from his neighbour, he consulted his solicitor and took counsel's opinion, which he considered favourable to him, but when he pressed his solicitor to push forward the case he told him that, on further consideration, both he and the counsel thought he would have no case. Personally, I should have been glad for the case to be fought out, as it was as strong as any claim of this description.

By Section 87 the adjoining owner can require security for any works authorised by the Act, but nothing is said as to compensation.

There appears to me a doubt as to the validity of the notice as to pulling down the wall if not defective, as the case is fully met by Sec. 83, and should have been included in the notice. This will probably be argued with the third surveyor.

In the case of Standard Bank of Africa v. Stokes, it was held that underpinning was heightening downwards; at any rate, that the same rights as to heightening applied to deepening, and as inserting footings to an old wall would be underpinning it includes this. But here, again, the notice should have been more explicit, and admits of argument. J. DOUGLAS MATHEWS, Fellow.

Reply to Query CLXIX. (Vol. VI., p. 237).

LAND TAX ON QUIT RENTS.

(A.)

My experience during the last 50 years with reference to quit rents is that I have never had any application in respect of a deduction for land tax on quit rents receivable on behalf of the various manors for which my firm has been concerned, and in all instances where there is any land tax on the property it has been paid by the copyholder as one of his obligations.

In valuing for enfranchisements, whether acting for the copyhold tenant or the lord, we have never made any deduction in respect of land tax payable by the copyholder, nor have our valuations ever been questioned in this respect by the Copyhold Commissioners-now the Board of Agriculture.

In the Instructions of the Commissioners, dated 1888, for the guidance of the valuers in enfranchisement cases, it is stated as follows:-"In estimating the annual value of the property no deduc

"tion should be made for land tax, but the quit rent should be "deducted." Thus placing the land tax as a copyholder's obligation.

I believe land tax was first imposed in the early part of the seventeenth century, but was introduced in its present form in the reign of William III., when a new assessment was made throughout the kingdom. R. C. DRIVER, Past-President.

(B.)

The receiver of the quit rent is bound to allow the payer of the same land tax at the same rate in the £ as is charged on the value of the land out of which the quit rent is payable; but where the quit rent is payable to the Crown, or to any person deriving title from the Crown by the purchase under the Acts 22 & 23 Charles II., caps. 6 & 24, the receiver must allow the payer 4s. in the £ on such rents.

It will depend, therefore, on the origin of the quit rent, whether the 4s. in the £ is a proper deduction, or whether it should be only at the same rate as the tax on the land the quit rent issues from.

The 5th, 30th, & 31st sections of 38 Geo. III., cap. 5, settle the law on the subject. W. ERNEST EVANS, Fellow.

(c.)

Quit rents are chargeable to land-tax. If the lord of the manor is not assessed for them direct, it is to be presumed that the copyholders, by paying the tax on the full annual value of the lands, pay the tax on the quit rents issuing out of the lands, and they can, therefore, deduct the poundage for the same when paying the quit rent. If the land-tax is properly assessed (which is not always the case), all properties not exonerated will be brought into assessment on an equal pound rate, the gross poor rate value being generally adopted. The amount in the £ may be as low as a farthing, or as high as the maximum of four shillings, and it may vary from year to year as properties vary in value. The poundage paid should, of course, be that deducted.

(D.)

A. DUDLEY CLARKE, Fellow.

The copyholders are not entitled to deduct the tax at 4s. in the £ from quit rents unless the manor be derived in title from the Crown, in which case they might be. But I think they are entitled to deduct from quit rents being not less than twenty shillings yearly a proportionate part of any land tax paid by them in respect of property out of which the quit rent is payable. Thus, an owner of property assessed at £20, and charged with a land tax of 20s. and a quit rent of 20s., would be enabled to deduct 1s. from the quit rent. If the tax is properly assessed there would, of course, be the equivalent of the "equal pound rate" required by the Land Tax Acts. This, however, presupposes that the assessors have not assessed the manor, as they ought to do under their Instructions. Their duty is to assess all manors

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"and all fee farm rents, and all other rents . . . . issuing out of any lands." As fines are not liable to assessment, the profits of most manors consist only of quit or other similar rents, and these ought to be assessed direct. The copyholders would then have no right to deduct the tax at any pound rate.

J. HENRY SABIN, Professional Associate.

(E.)

It will be serviceable to premise some particulars of the unanimous decision of the Court of Common Pleas, about the year 1781, in the oft-quoted copyhold case Grant v. Astle, and in which the Court laid down that land tax was not to be allowed in reduction of a copyhold fine.

The tax was virtually a property tax; and the grounds of the decision (over and above the circumstances of the claim to such a deduction being novel) were stated by Lord LOUGHBOROUGH as follows:

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46

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In the first place, the land tax is annual, and, however probable its "continuance may be, there can be no legal presumption as to the "future intentions of the legislature, and there can be no deduction by anticipation of an uncertain future burthen. In the second place, "the tax, though commonly called a tax upon land, is not, in its nature, a charge upou the land. It is a tax upon the faculties of men, estimated, first, according to their personal estate; secondly, by the offices they hold; and, lastly, by the land in their occupation. "The land is but the measure by which the faculties of the person "taxed are estimated, and where it is intended by the legislature that "the burthen should not ultimately rest upon the person charged, a "power of deducting is given him by the Act; as in the case of rents, "and other certain outgoings. But no deduction is allowed for fines "which are uncertain."-(Scriven on Copyholds, &c., 3rd Edition, Vol. 1, p. 396.)

Hence, a copyholder paying the tax in respect of the annual value of his tenement, is entitled to recover from the lord of the manor in respect of the quit rent which he pays to the lord; though the claim may be not worth the trouble involved. Upon this and other points a reference may advantageously be made to Mr. Evans's very interesting Paper on Land Tax in Vol. 15 of the "Transactions."

E. SMYTH, Professional Associate.

Reply to Query CLXX. (Vol. VI., p. 237).

TITHE ACT, 1891.

(A.)

Sub-section 4 of Sec. 8 has apparently been overlooked. This provides that where the value has not been ascertained and entered in the assessment for the purpose of Schedule B the Income Tax Commissioners shall, on application, ascertain such value for the purpose of Schedule B (and, of course, for the purposes of the Act).