In 1874, the

survey they always disembarked at that wharf. plaintiffs having amended their toll list so as to charge for the first time tolls proportioned to a fractional part of a mile traversed, the defendant, who was owner of oil mills situate on the Medway less than a mile above the College Lock, but more than a mile above Mr. Edmond's wharf, refused to pay any toll upon barges coming up the river to his mills. Held, that the plaintiffs were entitled to charge tolls proportioned to a fractional part of a mile traversed since the amendment of their list, without reference to the three months' limitation provided by section 38.

In Fisher v. Lee (g), it was held that blocks cut with wedges from the quarry, and, therefore, reduced to certain dimensions according to order, and squared with a pickaxe, to be used as railway sleepers, each being after such preparation worth ninepence more than unwrought stone of the same weight,—were liable to the toll as stones only, and not as merchandise under a Navigation Act (h), which imposed a toll on "every ton of butter or other goods, wares, merchandise, and commodities," and a lower toll on every ton of coals, cinders, lime, and limestone, stone, gravel, and manure."

Tame v. Grand Junction Canal Co. (i) also turned on the construction of certain Canal Acts. By 33 Geo. 3. c. lxxx., the Grand Junction Canal Company were empowered to take tolls for the passage of manure between Braunston and Brentford. By section 97, persons occupying lands through which the canal passed might carry manure without payment. By 34 Geo. 3. c. xxiv., for making a cut to Buckingham, the powers and authorities mentioned in the former Act were to be exercised by the company and by the owners of land on the new cut as if re-enacted, and the like exemptions were to be allowed. By 35 Geo. 3. c. xliii., reciting the first-mentioned Act, the company were empowered to make a cut to Paddington; and the several powers, authorities, matters, and things in the recited Act contained, except the rates, were to be used and exercised by the company, and applied for making the cut and for ascertaining tolls, and in all respects as if re-enacted, and as if the cut had been part of the works authorised to be made by the first Act.

By 35 Geo. 3. c. lxxxv., for making a cut from Watford to St. Albans, reciting the before-mentioned Acts, the powers granted. thereby were to be exercised by the company and by the owners of lands as if re-enacted; and the like exemptions were allowed :-Held, first, that on the construction of 35 Geo. 3. c. xliii., persons occupying land on the Paddington Cut could not carry manure

(g) 12 A. & E. 622; 4 P. & D. 447.
(i) 11 Exch. 786; 25 L. J. Exch. 222.

(h) 7 Geo. 3. c. 96.

Beneficial interest in tolls renders

a company liable for negligence in works.

Rates.

Piers, har

bours, docks,

and marine property.

Estuaries and arms of the sea primá facie extraparochial.

on the canal free from toll; secondly, that the provisions of the several public local Acts with respect to tolls on different cuts, part of the same canal, might be compared in order to ascertain the meaning of a clause in the Paddington Act, alleged to create exemptions from tolls upon the Paddington Cut.

As has been noted above, the possession of a beneficial interest in the tolls of a canal renders a company liable to actions for nuisance where damage is caused by negligence with regard to their works (k).

Rates and Rating.

It is proposed now to consider the liability of the various rights of water that have been treated of to be assessed for the payment of poor rates in the following order (1):

I. Piers, Harbours, Docks, and Marine Property.

II. Rivers and Ferries.

III. Fisheries.

IV. Canals.

V. Water Companies; and

VI. Bridges.

An estuary or arm of the sea is prima facie extra-parochial; but this presumption may be rebutted (m), and, with respect to the presumption of extra-parochiality, there is no distinction between the sea shore and the shore of a tidal river (n). By the Poor Law Amendment Act, 1868 (31 & 32 Vict. c. 122), every accretion of the sea, whether natural or artificial, and the part of the sea shore to the low water mark, and the bank of every river to the middle of the stream, which at the date of the Act were not incorporated with any parish, are for all civil and parochial purposes annexed to and incorporated with the next adjoining parish with which it has the longest common boundary.

Where a wet dock was constructed on a portion of land reclaimed from the ooze or bed of a navigable tidal river, and in order to prove that it was not part of the adjoining parish.

(k) Manley v. St. Helens Canal, 2 H. & N. 840; Parnaby v. Lancaster Canal Co., 11 Ad. & E. 213; Mersey Dock v. Gibbs, 11 H. L. Cas. 686, &c.; ante, pp. 498 et seq., 571.

(1) See the remarks on the history and development of this branch of law in the Historical Introduction to Castle's Law and Practice of Rating (4th ed.), pp. 1-16; cf. 3rd. ed. pp. 1-78. The principal authorities and statutes to be noted are:-The Mirror of Justice, section 3; Bl. Comm. vol. i. c. ix. section 6; Dalton's Justice of the Peace; 5 Edw. 3. c. 14; 7 Ric. 2. c. 5; 12 Ric. 2. c. 7; 15 Ric. 2. c. 6; 11 Hen. 7. c. 2; 19 Hen. 7. c. 12; 22 Hen. 8. c. 12: 27 Hen. 8. c. 25; 3 & 4 Edw. 6. c. 16; 2 & 3 Philip and Mary, c. 5; 5 Eliz. c. 3; 18 Eliz. c. 3; 39 Eliz. c. 3; 43 Eliz. c. 2; 3 Car. 1. c. 4; see Castle (4th ed.), pp. 9-18. See too Ryde's Law and Practice of Rating (2nd ed., 1904); cf. Konstam's Reports of Rating Appeals.

(m) Ipswich Dock Commissioners v. St. Peter's, Ipswich, 7 B. & S. 310. (n) Trustees of Duke of Bridgewater v. Surveyors of Highways for Bootlecum-Linacre, 7 B. & S. 348. See ante, pp. 12, 22, 88.

evidence of perambulations of that parish, and of others abutting on other portions of the reclaimed land was given, which seemed to show that the rights of those parishes extended only to high water mark, but, against this, it appeared that in each of the parishes considerable tracts were reclaimed from the ooze or bed of the river, and rated to the poor; it was held, that the presumption of parochiality, arising from payment of these rates, outweighed the contrary presumption arising from the perambulations (o).

the shores of

a river.

Where, in beating the boundaries of the parish of Rotherhithe, Parish exit was shown that the authorities proceed along the embank- tending along ments, wharves, or other shore of the river, while in the adjoining parish of Bermondsey the authorities go along the middle of the river; and that the parish of Rotherhithe has never done or exercised any parochial act or authority beyond the embankments, &c.-it was held, that the inference from the above circumstances was that the parish of Rotherhithe extended to the middle of the river, and that, therefore, a pier built on piles in the bed of the river opposite one of the embankments, but not connected with it, was rateable to the poor rate of the parish (p).

66

By section 55 of the Local Government Act, 1858, the occupier of any land covered with water (q), or used only as a canal or towing-path for the same or as a railway constructed under the powers of any Act of Parliament for public conveyance," is to be assessed to the district rate at one-fourth only of the net annual value as ascertained by the last poor rate. It has been held that a wet dock was "land covered with water" within this provision; and that a railway which had been constructed by a dock company in connection with their docks and joining a public railway and canal under the powers of their private Act, by which the company were bound to complete the railway for the use of the public on the payment of tolls, was a railway within the provision, although it was not constructed to carry passengers, but that warehouses and other adjuncts to docks are rateable at the net annual value (r). An artificial reservoir is “land covered with water" under the section (s).

(0) Ipswich Dock Commissioners v. St. Peter's, Ipswich, 7 B. & S. 310. (p) McCannon v. Sinclair, 28 L. J. M. C. 247; 2 E. & E. 53; 33 L. T. (0.s.) 226.

(q) This exemption is continued by section 10, sub-section 1 of the London Government Act, 1899 (62 & 63 Vict. c. 14), as regards hereditaments in metropolitan boroughs notwithstanding the repeal of the Public Health Acts in those areas: London and India Docks v. Woolwich Borough, [1902] 1 K. B. 750; 71 L. J. K. B. 394; but only extends to lands covered by water in 1901 : see Port of London Authority v. Woolwich Corporation, [1924] 1 K. B. 30. (r) Reg. v. Newport, 31 L. J. M. C. 267; 6 L. T. 456.

(s) Hampton Urban District Council v. Southwark and Vauxhall Water Co., [1900] A. C. 3, H. L. (E.); 69 L. J. Q. B. 72.

Land covered with water.

Piers and harbours.

Where two companies, incorporated under the Companies Act, 1864, received tolls for the use of a pier which extended from the shore into the sea for several feet below low water mark, being constructed of a wooden deck resting on iron piles driven into the sands, so that the water flowed under it, and no alteration was made in the line of low water mark; it was held, that the part of the pier below low water mark, being beyond the realm, was not extra-parochial within the meaning of the Poor Law Amendment Act, 1868 (31 & 32 Vict. c. 122), s. 27, and, as such, annexed to any other parish, nor was it an accretion from the sea, and that, therefore, that section did not enable it to be rated (t). But where a solid structure is erected on the bed of the sea so that the sea is excluded, the land which was theretofore under water becomes an artificial accretion from the sea and part of the adjoining parish and liable to be rated (u).

By an Act of Parliament, certain commissioners were appointed for effecting improvements in the harbour of S. They were authorised and required to deepen and cleanse the channel of the harbour, and to make an artificial entrance with piers, by which ships might pass from the sea into the harbour. Tolls were to be paid in respect of such vessels as entered the harbour, but were not to be received by the appellants to the full amount authorised by the Act, until the whole works were completed. The piers were erected, and the channel deepened and cleansed, and the commis. sioners received tolls in respect of the vessels which entered the harbour. There was nothing in the Act to show that they were to be considered as purchasers or owners of the land upon which the works were to be done :-Held, first, as to the channel, that the commissioners had simply a power to make a right of passage from the sea to the harbour, and that they were not rateable to the poor rates in respect of such right of passage; secondly, that although they were occupiers of the land upon which the piers stood, yet that the occupation could not be taken to be enhanced in value by the revenue derived from the tolls, inasmuch as an occupier of the piers would get no part of the tolls, or derive any benefit (x) from the harbour; and, therefore, that the appellants were not liable to be rated to the poor rates, the piers themselves being worth nothing (y). Where commissioners were empowered

(t) Blackpool Pier Co. v. Fylde Union, 46 L. J. M. C. 189; 36 L. T. 251; 41 J. P. 344. See remarks of Lord Coleridge, C.J., on the construction of this section; 46 L. J. M. C. 191; and Burghead Harbour Co. v. George, post, p. 620.

(u) Barwick v. S. E. & C. Rly. Cos., [1920] 2 K. B. 387.

(x) As to beneficial occupation see London County Council v. Erith Overseers, [1893] A. C. 562.

(y) New Shoreham Harbour Commissioners v. Lancing, 39 L. J. M. C. 121; L. R. 5 Q. B. 489; 22 L. T. 434; Lewis v. Swansea Overseers, 5 El. & Bl. 500; 25 L. J. M. C. 33; 1 Jur. (N.s.) 1108.

by Act of Parliament to improve the navigation of a harbour, the soil of which was not vested in them, and were authorised to demand and receive certain "harbour dues" for every vessel clearing the harbour, and also certain "goods dues "on all wares, merchandise, &c., shipped or unshipped, within it, and such dues were greatly augmented by facilities provided on certain pieces of land conveyed to them for quays and mooring places; it was held that as they received the dues by reason of statutory rights independent of their right to the quays, the receipt did not affect the rateable value of the quays (z). Harbour trustees were constituted and incorporated by a private Act of Parliament, and were appointed conservators of the harbour and river within certain definite limits, and were empowered to erect piers and lighthouses and fix mooring rings and capstans, and to dredge. light, and control the port and to charge harbour rates and tolls on vessels using the harbour.

Held, that such tolls were tolls in gross, their "meritorious cause" being the services above mentioned, and that they were not levied on account of the occupation by the trustees of the soil of the harbour or of land along its banks so that they ought to be taken into consideration in estimating the rateable value of such land.

The trustees had also constructed a floating dock which occupied part of what had been the bed of the river, but had not purchased the soil under this dock which remained the property of the lord of the manor.

Held, that they were rateable in respect of their occupation of such floating dock (a).

By section 33 of the Lighting and Watching Act, 1833 (3 & 4 Wet docks. Will. 4. c. 90), the owners and occupiers of houses, buildings, and property, other than land rateable to the relief of the poor, shall be rated at and pay a rate in the pound three times greater than that at which the owners and occupiers of land shall be rated at and pay for the purposes of the Act. It has been held (b), where certain appellants were the occupiers of certain docks, covering an area of 165 acres, 95 of which formed a wet dock or tidal basin, that this dock or basin was property ejusdem generis with the

(z) Blyth Harbour Commissioners v. Newsham and South Blyth Overseers, 63 L. J. M. C. 274; [1894] 2 Q. B. 675; 618.

(a) Swansea Harbour Trustees v. Swansea Union, (1907) 97 L. T. 585; 71 J. P. 487; 5 L. G. R. 1240, H. L. (E.), affirming 22 T. L. R. 433 (C. A.). See also Holywell Union v. Halkyn Drainage Co., 71 L. T. 818; [1895] A. C. 117.

(b) Peto v. West Ham, 28 L. J. (N.S.) M. C. 240; 2 E. & E. 144; per Lord Campbell, C.J., Wightman, J., and Crompton, J.; Erle, J., holding that they were rateable at the lower amount, as the area of ninety-five acres was land. Cf. Berwick Harbour Commissioners v. Tweedmouth Churchwardens, 54 L. T. 159; 5 Asp., M. C. 532.