Tyne, which they had let to tenants, but reserved to themselves the power of making or granting waggon-ways across it, making compensation to the tenants for the same; the defendant, who was the occupier of the Long Benton colliery, agreed with the dean and chapter for a liberty to lay down a railway across this land to the Tyne, at an annual rent of 2001., he making compensation to the tenants of the land to the amount of 177. a year; and he accordingly made the railway; and fenced and inclosed it in such a manner that no other person could make use of it; the tenants were still rated to the poor rate in Wallsend, to the same extent that they were before the making of the railway; the defendant being rated for this railroad, appealed, and contended that this was a mere right of way, an easement, for which he was not liable to be rated; the tenants who had the soil were already rated for it, and if the defendant were also to be rated, the land would be rated twice: but the court said that it was not for them to inquire into the defendant's title, or whether he had a mere right of way from the dean and chapter or not; it was sufficient to know that he was in the actual and exclusive possession of the land on which this railroad was made; he was therefore the occupier of it, and as such was rateable for it (8). So, where the corporation of London were owners of an ancient towing-path on one bank of the Thames, and charged certain tolls on barges towed along the path; the herbage and pasture of this towing-path were rented from them by one Spencer, who was separately rated for it: the court held that the corporation should also be rated for the towing-path; Spencer having merely the herbage and pasture, and not the soil, the corporation might maintain trespass for any injury to the land; they must therefore be deemed occupiers of it; and being occupiers, they were clearly rateable for it by the statute of Elizabeth (t). But where the defendant having a colliery at Wallbridge, agreed with the tenants of lands lying between it and the river Wear, for a way-leave across their lands, and a permission to make a waggon-way from the colliery to the Wear; instead however of making that waggonway, he, with the permission of the tenants, agreed with another person, who had already made a railroad in the same direction, for the use of the way, upon paying him so much per ton for the coals conveyed by it; the defendant being rated for this railroad, appealed; and the court held, that he was not rateable for it; he was not the occupier of the land; he had but a mere right of way over it, granted to him by the owner

(8) R. v. Bell, 7 T. R. 598. VOL. III.

(t) R. v. Mayor of London, 4 T.

of the railroad,‚—a mere easement, which was not the subject of a rate (u).

Railways.] Where a railway company were enabled by Act of parliament to make a railway, and to charge certain tolls to persons choosing to run carriages, &c. upon it, and also to run carriages themselves upon it, charging certain fares, carriage, &c.; in fact, they ran the carriages themselves alone, no other person having done so the court held that they were liable to be rated for their land, thus made additionally valuable by the railway, not merely at the sum a person would give as a rent for the tolls, but what he would give as a rent for the way, to be used by him in the same way as the company used it, namely, by running carriages on it on his own account, deducting, of course, tenants' rates, &c., the expense of repairs, and other charges mentioned in stat. 6 & 7 W. 4, c. 96, s. 1; and that they were rateable in each parish, in proportion to the amount of profit derived on that part of the railway within it, and not merely in the ratio of the length of the way within the parish to the whole length of the railway, and this, although the additional value of that part of the line might arise in some manner from the station houses and other works not within the parish (v).

So, where the Grand Junction Railway Company were rated to the poor in the parish of Seighford, in the county of Stafford, and the company appealed; it appeared that the company employed locomotive engines, carriages, &c., and made profits by carrying passengers and goods; other persons also used the railway with their own locomotive engines, carriages, &c., making profits by carrying passengers and goods, paying to the company certain tolls for the same; and others hired locomotive engines of the company, but used their own carriages, &c. and had their own stations, waiting-place, &c., paying the company certain tolls; over the line from Newton to Liverpool, and from Newton to Manchester, the company are merely carriers, the line not belonging to them, but they merely going along it, upon paying toll, as any other carriers; the gross profits derived by the company from tolls alone, as owners of the soil, and taking into account tolls supposed to be received by them for carriages run by themselves, was on an average 1,5007. per mile a year; but if their profits as carriers on their own line were taken into account, the average would be 4,1907. a mile; the company insisted that they should be rated for the tolls alone, less 20 per cent. for tenants' profits, two and a half per cent. for collection of the tolls, 3501. per mile for maintenance of the railway, wages of gatekeepers, engineers,

(u) R. v. Joliffe, 2 T. R. 90.

Western Railway Company, 1 Q.

(v) R. v. The London and South B. 558.

police, &c., 70l. per mile for poor rates, tithes, &c., and 307. per mile for re-producing rails, chairs, and sleepers when rendered necessary by accident or decay,-making a net value of 7121. 108. per mile; but, on the other hand, the parish insisted that the company should be rated on the profits derived by them from the railway, whether from tolls or otherwise, amounting to the sum of 440,3661. on 105 miles, less 57. per cent. on 255,000l., the value of their engines, carriages, &c., 201. per cent. on the same as tenants' profits, 127. 108. per cent. for depreciation on the same beyond repairs and expenses, 198,9621. the amount of the year's expenses, 9,1507. repairing stations, &c., and 301. a mile for re-producing rails, sleepers, &c.,-leaving a net profit on the company's whole line of 135,5891., or 1,0501. a mile: the court held, that the company were rateable on the higher scale, not simply for the tolls, but for the value of the railway to them arising from the way they used it; that in calculating the rent a tenant from year to year would give for the way, with a view of using it in the same way as the company, we must not consider that alone to which the lease would convey a legal title, but that which it would give the lessee the means of doing or enjoying, and which would perhaps induce him to give a higher rent for it (w).

Also, where the Great Western Railway Company were rated in the parish of Tilehurst, for that part of their railway which passed through the parish; and it appeared that the company had one railway which they had constructed, and were the occupiers of two branch railways which they rented, but the main line alone passed through the parish; on these three lines they were entitled to toll, they also furnished carriages, provided the locomotive power, and carried on the business of carriers, but they sustained an annual loss upon the branch lines, which they carried on for the increased traffic they brought to the main line; they were rated for it in this way, the gross receipts of the three railways (175 miles) were calculated at 644,000l., or 36801. a mile; out of which was deducted 49,6431. 68. 5d. for maintenance of the way; 74,7251. 98. for engines, repairs, wages, coke, &c.; 60,7147. 158. 2d. for repair of carriages, stores, wages to guards, conductors, police, &c. ; 23,1261. 2s. 11d. for superintendents, clerks, printing, stationery, &c. ; 16821. 68. 8d. for repair of stations, &c.; 15367. 10s. for damage by fire, accidents, &c.; 25,7831. 48. 6d. for government duty; 11,340l. 148. 8d. for taxes and rates; 86431. 58. 7d. for direction and office expenses; and 20,000l. were allowed for the annual depreciation of the plant or moveable stock necessary for working the whole line, - amounting altogether to the sum of 277,2057. 148. 11d. which being divided by 175 (the number

-

(re) R. v.Grand Junction Railway Company, 4 Q. B. 18; 13 Law J.94, m.

of miles of railway), gave 15847. for expenses per mile; the parish also allowed the railway company five per cent. as interest on their plant or moveable stock (calculated at 580,0007.) and ten per cent. as tenants' profits, which 15 per cent. amounted to 87,9007., and that being divided by 175, gave 4977.; these two sums, therefore, 15841. and 4971., being deducted from the gross receipts per mile, 36801. gave a rateable value of 15991. per mile :-The company however claimed a deduction for the stations and other erections on the line, for which they were rated separately, and no part of which was within the parish; and the court held that they were entitled to this deduction:-The company also claimed a deduction of the income tax paid by them, amounting to 10,000l.; and the court held, that they were entitled to so much of it as was a charge on the occupation, and payable by the tenant:-The company also claimed an allowance for the wear and tear of rails and sleepers; but, as it appeared that they paid this out of their capital and not out of their profits, the court held, that they were not entitled to it :-They claimed also to be allowed 51. per cent. interest on the sum expended in forming the company, and obtaining their Act; additional parochial assessments, not paid, but which would be payable in consequence of the decisions of the court as to the rating of railways;-and the annual total loss on the two branch lines:-but the court held that they were not entitled to any deduction on these grounds :-It appeared that the allowance for tenants' profits had been made on the original value of the moveable stock, which the sessions found had decreased in value; and the court held that the allowance ought to have been made on the decreased value (x).

Another case upon the subject, is that of the London, Brighton, and South Coast Railway Company (y). The company were rated for that part of their railway which is in the parish of Croydon, calculated upon the earnings of the way in that parish; but the company insisted that the proper mode of rating would have been to ascertain the rateable value of the whole line, including trunk line and two branches, and then to rate the company at a portion of that sum in the ratio of the length of way in the parish to the whole length of the line; the court, however, held that the rate was correct in this respect; rating on the mileage principle, as contended for by the appellants, however convenient it may be, is not the legal mode as required by the parochial assessment Act, 6 & 7 W. 4, c. 96; in conformity with that statute, the property in each parish must be rated according to its value, irrespectively of

(x) R. v. Great Western Railway Company, 15 Law J. 80, m. 6 Q. B. 179.

(y) R. v. London, Brighton, and South Coast Railwag Company, 20 Law J. 125, 148, m.

the property in any other parish :-The respondents, in allowing interest on the working plant, calculated the value of the plant at 260,0007., which was its value in June, 1847, when the last account was rendered by the directors to the proprietors; but between that and November, when the rate was made it had increased in value to 350,0007. at which sum the appellants insisted that the interest ought to be allowed; and the court held that the allowance ought to be made upon this greater sum; for the company should be rated according to the value of their rateable property at the time of the making of the rate:-Besides an allowance made for the annual costs of keeping the way in a working condition, the appellants claimed to be entitled to an allowance for the depreciation which takes place in the permanent way; to which the respondents objected, because it did not appear that any part of the revenue of the company had been set apart for that purpose, and it was holden in R. v. Great Western Railway Company (supra) that such a deduction ought not to be allowed; but the court, notwithstanding the case cited, held that the company were entitled to the deduction; in the case of house property, a sum is allowed, annually in the rate, for repairs, although the repairs may not be done annually :-There was a portion of the line in Croydon (2 miles and 64 chains) over which the appellants had given the South Eastern Railway Company the privilege of passing, in consideration of the latter company allowing them to pass over an equal portion of their railway which was out of the parish; and the respondents claimed to rate the appellants in this respect on a sum equal to what it was supposed the South Eastern Railway ought to pay for this privilege of passing over their line; but to this the appellants objected, as the equivalent was not received by them in the parish of Croydon; but the court held that they were rightly rated in this respect; it was a rent in kind which the appellants received for the use of their railway.

Another case upon the subject is that of the South Eastern Railway Company (z). Their railway consisted of a trunk line and several branches, one of which branches passes through the parish of Westbere for the distance of 202 chains, and was there rated; against which rate the company appealed :-upon a case stated, it appeared that the respondents rated the company for the part of their branch railroad passing through the parish, on the mileage principle; that is, they first ascertained the rateable value of the whole of the railway, trunk line and branches, considered as one joint concern, and then rated that part which passed through the parish at a sum proportioned to the whole value, in the ratio of the length of railway in the parish to the length of the whole trunk line and branches; to this the company objected, because, although the expenses on

(z) R. v. South Eastern Railway Company, 20 Law J. 138, 143, m.