1869 บ. the board has done is not within the Act, the claimant's remedy is THE QUEEN by action; if it is within the Act, it is not the subject of compensaWALLASEY tion, because the claimant ought to have done the works himself. LOCAL BOARD. Suppose a mandamus to go, and the amount of compensation claimed to be raised by a rate on the district, it may ultimately fall on the owner and so on the claimant himself: 21 & 22 Vict. c. 98, ss. 62, 63. G. Bruce, in support of the rule. The claimant, under s. 69, no doubt is bound to do the works required by the local board, or repay them the expenses they incur on his default. But s. 144 is in the most general terms, and secures full compensation to all persons sustaining any damage by reason of the exercise of any of the powers of the Act. Supposing the claimant to have done the works himself, he would have done this as the agent of the local board; and the damage would not the less have accrued by reason of the exercise of the powers of the Act. LUSH, J. There is at any rate so much doubt that the Court ought not to refuse a mandamus; but if the parties consent to be bound by the decision of the Court at the present stage, we will consider the matter. This consent having been given, Cur. adv. vult. May 11. HANNEN, J. In this case a rule was obtained for a mandamus to the Wallasey Local Board of Health, to cause compensation to be made to Evan Thomas for damage by him sustained, by the exercise of the local board of the powers of the Public Health Acts. The local board, acting under s. 69 of the Public Health Act, sewered, levelled, &c., require them to sewer, level, &c., within a time to be specified in such notice; and if such notice be not complied with the local board may, if they think fit, execute the works mentioned or referred to therein; and the expenses incurred by them in so doing shall be paid by the owners in default, in proportion to the frontage of their respective premises," &c. (The form of notice is given by 24 & 25 Vict. c. 61, s. 17, sch.) S. 144:-"Full compensation shall be made out of the general or special district rates to be levied under this Act, to all persons sustaining any damage by reason of the exercise of any of the powers of this Act," &c. 1848 (11 & 12 Vict. c. 63), required Evan Thomas and other owners 1869 v. of premises in a certain street in New Brighton, to sewer, level, THE QUEEN pave, and channel the same; and the said Evan Thomas having WALLASEY made default in complying with the notice, the board executed Local Board. the required works, and claims as contribution payable by Evan Thomas in respect of the works the sum of 717. 8s. It is alleged by Evan Thomas that the effect of the works, as executed, is to obstruct the entrance to his house, and to render the access to his doorway dangerous and inconvenient, and in respect of the injury he claims compensation under s. 144, which enacts that full compensation shall be made to all persons sustaining any damage by reason of the exercise of any of the powers of the Act. It was contended on behalf of the local board, that inasmuch as the owners of the houses in the street were bound to do the works themselves, or if done by the board to pay for them, they could not be entitled to compensation for injury incurred by the works. We are of opinion, however, that this argument is not well founded. There is no necessary connection between the cost of the works and the damage which they may occasion. The raising of the level of a street may be very advantageous to the majority of the houses in it, but very injurious to one. Although, therefore, the owner of that house may be bound under s. 69 to pay his proportion of the cost (having regard to the frontage of the house) of altering the level, he may still be entitled to compensation out of the general district rate for the special damage which he has sustained in order that his neighbours and the district generally should be benefited. We are therefore of opinion that Evan Thomas is entitled to have it ascertained whether or not he has sustained damage by the execution of the works in question, and to receive compensation for such damage, if any. The rule will therefore be made absolute for a mandamus, and the parties have agreed to be bound by our decision. Rule absolute. : Attorneys for prosecutor: Neal & Philpot, for W. & A. Clare, Liverpool. Attorneys for defendants: Norris, Allen, & Carter, for Simpson & North, Liverpool. 1869 April 24. THE QUEEN, ON THE PROSECUTION OF THE GREAT WESTERN RAILWAY Poor-rate-Railway-Contributive Value. The E. V. Railway runs through the parish of L., and forms a junction with the appellants' railway, who occupy the E. V. Railway at a fixed rent. On appeal against a poor-rate in the parish of L. : Held, that the case was governed by Great Eastern Railway Company v. Haughley (Law Rep. 1 Q. B. 666), and that the appellants were to be rated only in respect of the profits which the E. V. Railway earned within the parish of L., and that the value of the traffic contributed by the E. V. Railway to the appellants' main line of railway ought not to be taken in consideration, in estimating the amount of the rate in the parish of L. ON an appeal to the Glamorganshire Quarter Sessions by the Great Western Railway Company against a poor-rate of the 3rd of January, 1868, for the parish of Llantrissant, in which the appellants were rated, as occupiers of the Ely Valley Railway and branches, at a gross estimated rental of 8007. and a rateable value of 4007., the sessions amended the rate by reducing the rateable value from 4007. to 2707., subject to the opinion of the Court upon the following case: The Ely Valley Railway commences at Dinas, a few chains beyond the northern extremity of the parish of Llantrissant, and running through that parish to a point a few chains beyond its southern boundary forms a junction with the South Wales Railway. It has two branches, called respectively the Mynydd branch and Gellyshaidd branch. It is also connected at or near Mynydd with the Llantrissant and Taff Vale Junction Railway, and at the South Wales Junction with the Cowbridge Railway, which have running powers over a portion of the main line and one of the branches. The branches are situate wholly, and the main line chiefly, in the parish of Llantrissant, it being admitted, for the purpose of this case, that the entire length of railway is ten miles and seventeen chains, of which seven miles and twenty-three chains are situate in this parish. The traffic is chiefly mineral, and is produced from iron and coal works which are situate partly within and partly beyond the parish. The greatest portion of that traffic is brought by the Ely 1869 Valley Railway to the South Wales Railway, and conveyed for some distance over that line and over other portions of the Great THE QUEEN Western Railway Company's lines. The South Wales line is the property of the appellants, who are also the occupiers of the Ely Valley Railway and branches, under an agreement for a lease for 999 years from the 1st of January, 1861 (which agreement was confirmed by 25 Vict. c. excvi.), by which the appellants undertook to pay the Ely Valley Railway Company a fixed rent for the year 1864 of 3000l., for the year 1865 of 37507, and for the year 1866 and remaining period 40007. The Ely Valley Railway brings a considerable amount of traffic to the appellants' South Wales line, which thus derives benefit from the Ely Valley Railway as a feeder to the main line. In the poor-rate made the 3rd of January, 1868, for the parish of Llantrissant, at 12d. in the pound, the appellants were assessed as occupiers of the Ely Valley Railway and branches at the rateable value of 4007. The appellants appealed upon the grounds that they were overrated. That the rate was not made on an estimate of the net annual value, and that the rate was not made in conformity with the 27 & 28 Vict. c. 39, s. 4. On the hearing it was agreed that the only question for the sessions was, whether the value of the traffic, contributed by the Ely Valley line and branches as bringing traffic to any portion of the Great Western Railway Company's South Wales line, was to be taken into consideration in estimating the amount of the rate in the parish of Llantrissant. And it was also agreed that if the contributive value of the Ely Valley line, so bringing traffic to any portion of the Great Western line, was not to be taken into consideration, the rate was to be amended by reducing the rateable value to 2707.; but if such contributive value was to be taken into consideration, the rate was to be affirmed. The sessions decided the above question in the negative, and reduced the rateable value to 2707. The question for the opinion of the Court was, whether the respondents are entitled to take into consideration in their assessment the value of the line to the appellants as bringing traffic to the V. LLANTRISSANT. 1869 Great Western Railway Company's South Wales line, in addition THE QUEEN to the net profit as derived from the traffic passing through the parish of Llantrissant. V. LLANTRISSANT. If the Court should be of opinion that the question should be answered in the affirmative, the order of sessions was to be quashed and the rate affirmed; but if the Court should be of the opposite opinion, the order of sessions was to be confirmed. Field, Q.C., and J. W. Bowen, for the appellants. The question raised in this case has been in effect decided in Great Eastern Railway Company v. Haughley. (1) It was there decided that a railway must be rated in respect of the profit earned in the particular parish, and that profit earned in other parishes could not be taken into account to enhance the value. THE COURT then called upon Michael, for the respondents. There is no doubt that the parochial and not the mileage principle of valuation is to be followed in rating a railway; but in certain cases profits earned without the parish are to be added to those earned within the parish, in estimating the rateable value; and further, although rent actually paid cannot be taken as an absolute criterion of value, yet it is primâ facie evidence of it. Here the appellants give the large rent of 40007. for the Ely branch, that is greatly in excess of the profits earned by the branch line, and it is clear that the hypothetical tenant would give more for the branch line than the actual profits earned on it. The rateable value is what that tenant would give. South Eastern Railway Company v. Dorking (2) is precisely this case. Lord Campbell, C.J., there says (3): "The liability of the appellants to be assessed to the relief of the poor in the parish of Dorking in respect of the portion of the Reading line in that parish cannot be confined to the net profits derived by the appellants from the traffic passing through that parish. . . The rent that was paid by the appellants is strong evidence that it was of greater value to them than the mere net profit from traffic upon it." Newmarket Railway Company v. St. Andrews (4) is also in point. London and North Western Railway Company v. Cannock (5) is in favour of the re (1) Law Rep. 1 Q. B. 666. (2) 3 E. & B. 491; 23 L. J. (M. C.)85. (M. C.) at p. 95. (4) 3 E. & B. 94; 23 L. J. (M. C.) 76. (5) 9 L. T. 325. |