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facts are established in evidence, be de- works, or any new works where such improves clared by a Court of Equity ;” but in the ments or new works involve an expenditure present case the trust between the owners of more than 1,0001., the commissioners shall of the fee, and those who held under the cause plans of the proposed work, and an agreement of 1768, was an actual direct estimate of the expense thereof, and of the trust.

area within which a rate will be required to The case of Doe v. Rock (8) is con. be levied to meet such expense, to be made, fusedly reported; but it would seem that together with a list of the names and ads the owners of the legal fee had held it as dresses of the persons reputed to be proprietrustees for Woolrich, who had purchased tors of the land within such last-mentioned it from them but failed to pay the price ; area, with the addition of the number of then Woolrich sold his equitable fee to acres of which each person is reputed to be Butler, at an advanced price. It would the proprietor, and shall publish their intenseem probable from the report in Carring. tion to execute such works two months before ton & Marshman that Butler actually commencing the same.paid the original price to the owners of By Section 31, “ If within such period the fee, and that they became trustees for

of two months the proprietors of one-half of him only, and that afterwards by some the area of land within which a rate is, arrangement, not explained in the report, according to the notice, proposed to be levied, Woolrich became tenant-at-will to Butler, declare in writing to the Commissioners, by not to his trustees, except in so far as by notice left at their office, that they are unimplication every trustee may be said to willing that such work should be executed, be trustee for those who hold under his the Commissioners shall take no further immediate cestui que trusts.

steps therein; but if no such declaration of This understood, the ruling of Patteson, dissent is made, the Commissioners may, at J., after consulting Cresswell

, J., was in the expiration of such period of two months, truth no more in effect than that where commence the proposed work, and repay

out the cestni que trust would be barred if his of the rates to be levied by them within the title was legal, his trustee is also barred ; area, all expenses incurred, not exceeding a doctrine which in no way comes in the estimate published in the notice.question here, and which has since been By Section 38, "The following regulations acted upon in Melling v. Leak (10). We shall be observed with respect to rates levicome therefore to the conclusion that the able by Commissioners of Sewers; that is to plaintiffs are entitled to judgment.

say— Judgment for the plaintiffs.

First. As to the purposes of the rate ;

Rates may be levied by Commissioners of Attorneys—Fladgate, Clark, Smith & Forster, for Sewers for defraying all costs, charges, and plaintiffs; H. B. Clarke & Son, for defendants. expenses incurred or to be incurred by them

under the authority of any Act of Parliament, law, or custom.

Second. As to the incidence of the rates :

A rate levied by the Commissioners for

LONGDON • 1871.

the purposes of defraying the expense of June 22.

any improvements in existing works or any BOARD.

new works, where such improvements or new Land Drainage Act, 1861 (24 8. 25 Vict.

works involve an expenditure of more than c. 133) Drainage Board— Expenses of 1,0001., shall be deemed to be a special rate, )

a Plans and Estimates Owners and Occu

and shall be deemed to be a tax on the piers of Lands-General Rate-Special Rate.

owners of property ; but, except such special

rate, rates leviable by the Commissioners By Section 29 of 24 8. 25 Vict. c. 133 (the shall be payable by the same persons, in re. Land Drainage Act, 1861), Previously to spect of the same property, and in the same commencing any improvements in existing manner as they are now by law payable.(10) 16 Com. B. Rep. 652 ; s.c. 24 Law J. Rep.

The defendants, under the Act above re(n.s.) C.P. 187.

ferred to, were appointed a drainage board, NEW SERIES, 41.-Q.B.









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with all the powers of Commissioners of their drainage district (sach survey, Sewers; they incurred an expenditure of plans, &c., were made by Mr. Swinburne), more than 1,0001. in and about the obtain. and costs, charges, and expenses were ining plans and surveys of the lands within curred by the inclosure commissioners in their district, and estimates for executing the relation to the issue of the provisional works which they proposed to carry out. The order constituting the drainage board, , proprietors of more than one-half the neces- dated the 28th of January, 1863, and sary area of the land within the district duly obtaining the said Local Act confirming declared their unwillingness that the works same, and there were also other necessary should be completed. The defendants made costs, charges, and expenses incurred by a rate on the occupiers, including the plain- the board. The total of such costs, tiff, of lands in the district, according to the charges, and expenses so incurred, did quantities and qualities of their estates, for not amount to 4501. In 1863 (after inthe costs, charges, and expenses incurred in curring such

curring such expenses as aforesaid), causing plans and estimates of the works to be the defendants employed Mr. J. Bailey prepared. The plaintiff was assessed as the Denton, C.E., to survey the lands within occupier of houses, gardens, and orchards, their district, and to prepare working maps, as well as of land :

plans, specifications, and report for the Held, that the rate was good as a general purpose of making works for the improverate upon the occupiers, and that the ex- ment of the existing drainage works of penses were not such as ought to be defrayed all the lands within their district, and for out of a special rate upon the owners. providing a general outfall for all such

drainage, according to the provisions of SPECIAL Case stated for the opinion of the said Acts. Mr. Denton used Mr. this Court in an action of replevin for Swinburne's survey, and completed his taking the plaintiff's horse. The defen- own plans, specifications, and report in dants denied the taking, and justified it as March, 1864, for which the defendants a distress : first, for a land drainage rate, paid him 1,125., and as the plans, &c., and second, for a sewers' tax. The plain. of the improvements contemplated had tiff joined issue thereon. The cause, which then caused an expenditure of more than had been duly removed from the County 1,0001., and the completion of the imCourt of Gloucestershire into this Court, provements contemplated in accordance was entered for trial at the Spring Assizes, with such plans, &c., would cause an ex1870, for the county of Gloucester, when, penditure of about 10,0001., the defend. by consent, the record was withdrawn ants endeavoured to obtain the necessary upon the terms that the questions between assent required by the Land Drainage the parties should be raised on a Special Act, 1861, to the costs then incurred, and Case.

to such improvements being coinpleted. 1. The plaintiff is a farmer, living at But within the necessary time the proand occupying a house and land (of part prietors of more than one-half of the of which land, namely 1r. 30p., as appears necessary area of the land within the said in the rate hereinafter set forth, he is the district, and within which a rate was owner) in Eldersfield, in the county of proposed to be made, declared in writing, Worcester. The defendants are a drainage in due form, to the said defendants, that board, incorporated under the provisions they were unwilling that such works of the Land Drainage Act, 1861 (24 & 25 should be completed in the manner proVict. c. 133), for a separate drainage dis- posed by Mr. Denton, and everything trict, comprising lands in several parishes, happened which was necessary to happen including the parishes of Longdon and to require that the defendants should Eldersfield in the said counties of Glou

further steps therein. The defencester and Worcester,

dants necessarily incurred costs, charges, 2. Previous to 1863, costs, charges, and and

expenses for and incident to the expenses were incurred by the board, in matters aforesaid, amounting to 2,2331. and about the setting out and surveying 4s. 6d. in the

whole, including the sum and mapping the lands to be included in paid to Mr. Denton. In the year 1867,

take no

the said survey and plans prepared by “Longdon & Eldersfield Drainage Mr. Swinburne, and the plans, &c., pre

District, to wit. pared by Mr. Denton, were submitted by

“A rate and assessment made on all the defendants, &c., to Mr. Curley, C.E.,

the occupiers of lands in the Longdon and for the purpose of preparing a scheme of drainage for the said district. Mr. Curley county of Gloucester, according to the

Eldersfield Drainage District, in the used Mr. Swinburne's survey, and saw

quantities and qualities of the estates, Mr. Denton's plans, but made his own

for the costs, charges, and expenses in. plans, and prepared a different and much

curred by the Longdon and Eldersfield less expensive system of drainage works, Drainage Board, under the authority of which was duly assented to by the requi- the Land Drainage Act, 1861, and the site number of landowners in the dis

several other Acts of Parliament incor. trict, and such drainage works have since

porated therewith, incurred in causing been executed.

plans and estimates of works proposed to 3. In order to provide money to meet

be done under and by virtue of the said the said costs, charges, and expenses, so Act, and otherwise complying with the amounting to 2,2331. 48. 6d. as aforesaid,

said Act, with respect to the said works. the defendants caused a valuation of the

“ Dated this 28th day of February, 1866." houses, buildings, and lands in the said district to be made, and on such valuation 5. The plaintiff, who was only an occu. made a rate upon all the occupiers of pier (and not the owner) of a house and a houses, buildings, and lands in the said certain quantity of land, was assessed district, according to their annual value, thereon, as occupier, to the suid rate, at at 98. in the pound.

the sum of 81. 6s. 11d., being at the rate 4. The said rate, which was made on of 9s. in the pound on the said valuation the 28th of February, 1866, has the fol.

of the said house and land, according to lowing heading :

their annual value, in the following form :


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6. The plaintiff objected to pay the said rate, was summoned by the defendants, rate, upon the grounds (among others) who afterwards, on the 15th of October, that it should have been an acreage rate 1868, distrained the said horse for the made on land alone, and on the owners, said rate of 81. 12s. 9d. not the occupiers of land.

9. The plaintiff thereupon replevied the 7. The plaintiff attended a meeting of horse. the defendants on the 10th of April, The questions for the opinion of the 1866, and then objected to the validity of Court are, firstly, whether the rate should the rate, and refused to pay the same on have been an acreage rate; secondly, the above grounds (among others), but whether it should have been made upon the defendants decided against such ob- land only; thirdly, whether it should have jection

been made upon the owners and not upon 8. The plaintiff, still refusing to pay the the occupiers of land. If the Court

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should be of opinion in the affirmative on In Com. Dig. tit. Sewers, it is stated any one of these questions, judgment is to that “the commissioners are authorised .be entered for the plaintiff for 51. damages, to enquire, &c., and all those, namely, with costs to be taxed on the higher who have or may have hurt or loss, &c., scale. If the Court should be of opinion in to tax, assess, charge, &c., after the quanthe negative on all these questions, judg- tity of their lands, tenements, rents by ment is to be entered for the defendants, the number of acres, &c., after the rate with costs to be taxed on the higher scale. of every man's portion, profit, &c., by

such ways and means, &c., as shall seem Lord, for the plaintiff.-It will be con- most convenient for redress of the prevenient to discuss the third question first. mises.” See also Callis on Sewers, p. 153. It is submitted that the rate should have The rate is to be imposed in respect of been made upon the owners of the land. so much land as receives benefit from the Section 38 of 24 & 25 Vict. c. 133 pro- drainage.The Queen v. The Metropolitan vides, “ first, that rates may be levied by Board of Works (1). commissioners of sewers for defraying all [BLACKBURN, J.-In that case I observe costs, charges, and expenses incurred by that Crompton, J., said, “ The property is them under the authority of any Act of to be assessed on its net annual value as Parliament, law, or custom; second, as to

ascertained by the rate, for the time being, the incidence of the rates, first, a rate levied

for the relief of the poor.” But all that by the commissioners for the purposes of can be said upon this part of the subject defraying the expense of any improve

may be found in The King v. The Com. ments in existing works or any new missioners of Sewers for the Tower Hamworks, where such improvements or new lets (2).] works involve an expenditure of more He also referred to the Case of the Level than 1,0001., shall be deemed to be a special of Huu (3). Next. The rate ought to rate, and shall be deemed to be a tax on have been made in respect of land only. the owners of property, but, except such [BLACKBURN, J.—How does it cease to special rate, rates levied by the commis

be land by having houses upon it?] sioners shall be payable by the same per- Dowdeswell (Lawrence with him) for the sons, in respect of the same property, and defendants.—These expenses are incident in the same manner as they are now by to obtaining the order of the Inclosure law payable.” The rate now in question Commissioners. It appears from the case comes within that provision, and is bad

that the Boardappointed Mr. Bailey Denton as having been made upon the occupiers who prepared plans and specifications, and of land instead of upon the owners.


the expenditure in respect of the contemis most reasonable that the owners should plated works would have been so large pay, because the intended works would

that the proprietors of the lands within be for their benefit. The imposition of the district of the Board were unwilling such a rate as 98. in the pound upon the that the works should be completed. Then occupiers is most unjust. Next. It should

Mr. Curley was employed, and it became have been an acreage rate. By 23 Hen.

necessary for the defendants to make a 8. c. 5. s. 3, the commissioners of sewers rate, and the one now in question was are authorised to tax, &c., the persons made, but not for the purpose “ of defrayliable “after the quantity of their lands, ing the expense of any improvements in tenements, and rents by the number of existing works or any new works,” so as acres and perches, after the rate of every to be necessarily a special rate under secperson's portion," &c.

tion 38. The cost of making estimates, [BLACKBURN, J.—The rate now in ques- plans, &c., cannot be said to be the cost tion is made upon the occupiers of lands,

of works or improvements in works, and &c., according to the quantities and qualities of the estates; is there any authority

(1) 3 B. & S. 419; 8. c. 32 Law J. Rep. (N.s.) for saying that they ought to be taxed at

M.C. 115. so much per acre or perch without refer

(2) 9 B. & C. 517. ence to value ?]

(3) 2 Str, 1127.

the expense must fall upon the occupiers the rate is, that it ought to have been an who are the only constituency forming " acreage” rate, and incidentally to that the payers of sewer rates. By section 29, objection, that it ought to have been upon " previously to commencing any improve- land only and not upon houses or land ments in existing works, or any new

increased in value by improvements made works where such improvements or new upon it. I think that these objections works involve an expenditure of more than are wholly untenable. From the earliest 1,0001.,” the Commissioners are to cause times it has been held that the sewers plans of the proposed work and an esti- rate under 23 Hen. 8. c. 5. s. 3, must be mate of the expense to be prepared. It an equal rate upon those who are bene. is said that the rate ought to be imposed fited by it. See The King v. The Commisupon the owners, but the owners had no sioners of Sewers for the Tower Hamlets (2). voice in the matter. Prima facie all rates, And it would be unjust if it was imposed except the special rate made under section according to the superficial extent of the 38, must fall upon the occupier. When land instead of according to the value of the owners of the lands find that the such land. In the Act under which the works will involve an expenditure of more defendants are constituted a Drainage than 1,0001., they may, by section 31, Board, the 69th section provides for the declare that they are unwilling that the scale according to which the electors are works shall be executed, and in such case to vote, that is to say, they are to have a the Commissioners are prohibited by the certain number of votes in proportion same section from taking any further to the rateable value of the property in steps therein. In such case the owners respect of which he is entitled to vote. are not chargeable, and the

expenses must

It follows that the value of the land and be defrayed out of an ordinary rate made not its acreage is to be looked at. as a sewers rate. Although the works The next is a more substantial point. have been executed under Mr. Curley's The rate has been made for the purpose scheme, that cannot, in any way, alter of raising money to pay for the plans, &c., the question about the present rate. The made for works which the Board had works in respect of which the expenditure proposed to execute. By section 67, the in question was incurred have never been Board may exercise the same powers executed at all. Coupling the 29th and which are possessed by Commissioners of 31st sections together it appears that Sewers, and section 38 provides that such expenditure must be defrayed out of

be levied for defraying all costs, a general rate. The rate is good in law charges, and expenses incurred or to be as a general rate.

incurred by the Commissioners under the Lurd replied.

authority of any Act of Parliament, law,

or custom, and then follows the regulaBLACKBURN, J.— I think that our judg. tion as to the incidence of the rates. ment must be for the defendants. The [His Lordship read the 1st sub-section, question is whether the rate is or is not and then continued]: It is plainly, therevoid, for if void, the plaintiff is entitled to fore, enacted that, if it comes within that recover, while, on the other hand, if it be provision, the rate is to be deemed a special good, the defendants are entitled to our rate, and a tax upon the owners of projudgment though the rate might perhaps perty. The present rate purports to be have been reduced on appeal. We must made for the costs, charges, and expenses see what the rate is for. Upon its face, incurred in causing plans and estimates it purports to be “a rate or assessment of works proposed to be done, and the made on all the occupiers of land in the real question is whether those expenses Longdon and Eldersfield drainage district should be defrayed out of the money in the county of Gloucester, according to raised by a special rate, in which case it the quantities and qualities of the estates, should be made upon the owners, or for the costs, charges, and expenses in- whether they should be defrayed out of the curred” by the Board. One objection money raised for the general purposes of which has been made to the validity of the Act by a general rate in which the

rates may

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