which is situate in the parish of Sunderland, the tolls have been paid to him at his office there; but the appellant does not occupy such office, except as thus occupied by Mr. Simpson, nor is Mr. Simpson the servant of the appellant, otherwise than as collecting these tolls, for which he receives a per-centage on the amount collected. Previously to the appointment of such Commissioners as herein before mentioned, but very many years since, it is for the purposes of the case admitted that the port and the affairs and business thereof were managed and conducted by the Bishops of Durham, or by their lessees, under leases similar to the said lease, or by officers or others in that behalf authorized, appointed or employed by such bishops or lessees and by such bishops, lessees or officers, beacons were set up, mooring-buoys, posts and rings were placed and fixed within the port for the use and benefit of ships and vessels entering the port, and other works were done for the maintenance of the port, and the use and benefit of the ships resorting to it.

66

It is not known when the tolls were first rated in any parish or township, but a Mr. Lambton, an ancestor of the appellant, was, in the year 1771, rated for these tolls to the relief of the poor in the said parish of Sunderland. The words of description in the rate alluded to are anchorage and beaconage per Mr. Fenwick, steward to Mr. Lambton." It is however believed that these tolls have been regularly rated down to this time, in that form, since the year 1719, when the said parish of Sunderland was severed from the said parish of Bishopwearmouth. Save in the said parish of Sunderland, these tolls were never rated for the relief of the poor until the year 1852. In that year the ancestor of the appellant, who was then the lessee of these tolls, appealed against the rate for the said

parish of Sunderland, but abandoned the appeal and agreed with the overseers to be rated on 150l. Immediately afterwards the township of Bishopwearmouth, Bishopwearmouth Panns, Monkwearmouth, Monkwearmouth Shore, and Southwick, rated these tolls.

The appellant has never resided in any of the said townships or parish in which he is so rated in respect of the said tolls, but he is rated in the township of Bishopwearmouth in respect of certain railway and shipping staiths occupied by him. The Court is to be at liberty to draw such inferences of fact as might be drawn by a jury upon a trial at Nisi Prius, and also may cause this case to be amended in any manner that the Court may think proper.

The appellant, in respect of the tolls in question, is rated as follows :—

In the township of Bishopwearmouth,

No rate in respect of the said tolls had ever been made for the relief of the poor of any other township or parish_except Sunderland, Bishopwearmouth, Bishopwearmouth Panns, Monkwearmouth, Monkwearmouth Shore and Southwick. The estimated frontage to the river, the popu lation according to the census in 1851, and the amount of the present rateable value of hereditaments, rateable to the relief of the poor of the said parish of Sunderland and the townships of Bishopwearmouth, Bishopwearmouth Panns, Monkwearmouth, Monkwearmouth Shore and Southwick, are as follows:

For the purposes of this case it is admitted that if the appellant is rateable for the tolls in question, the sum of 4031. 3s. 4d. is the correct amount.

The appellant has appealed against all the above rates, but it has been agreed that the appeal against the rate for the township of Bishopwearmouth shall be proceeded with, and the present case stated, so as to obtain the decision of the Court in the whole.

The questions for the opinion of the Court are, first, are the said tolls rateable to the relief of the poor in all or any or which of the said townships or parish? Secondly, if rateable in more than one of the said townships or parish, then on what principle is the said sum of 4037. 3s. 4d. to be apportioned?

Welsby (Davison with him), for the respondents.-Tolls in gross are not rateable, but the right to take toll if connected with the use and occupation of land is assessable to the poor-rate. In the present case the Bishop of Durham had the soil and freehold of the port in the respondent and other townships between low watermark on each side, and the whole of this, together with the tolls, was granted by the bishop to the appellant, so that the tolls are not severed from the soil; and the toll, although called anchorage and beaconage, is paid only by ships which must float over the soil and may rest on it, or use it for casting anchor or mooring. The King v. Coke (1) will be cited as an authority by the other side, but the grant of the dues was not for the use and occupation of the lighthouse; and in The Attorney General v. Jones (2), Lord Cottenham, L.Č. held, that duties received under a grant of a lighthouse savoured of the realty, and he distinguishes The King v. Coke, and points out that the vessels paying the duties never were in the parish in which the duties were rated, and that that was the ground of the decision. In The Queen v. the Hull Dock Company (3) it was held, that the company were rateable in respect of the duties paid by all ships that entered the dock,

(1) 5 B. & C. 797.

(2) 1 Mac. & G. 574; s. c. 19 Law J. Rep. (N.s.) Chanc. 266.

(3) 7 Q.B. Rep. 2; s. c. 14 Law J. Rep. (N.s.) M.C. 114.

being profits of the soil so occupied by the company in the rating parish.

[ERLE, J.-On a navigable river every one has a right to go over it.]

But that would not affect the question as to the toll which he may be bound to pay.

66

Atherton (Liddell with him), for the appellant.-The toll is one and indivisible and is quite independent of the vesting of the soil in the lessee; moreover, between high and low water-mark other persons are the owners of the soil, and a payment is made to them for mooring, so that the anchorage, in fact, is not on the bishop's soil. There can be no port toll, which is a legal franchise, unless the origin be in a royal charter. And Lord Hale De Portubus Maris (Hargrave's Law Tracts, p.74), says, Anchorage, or a prestation of toll for every anchor cast there; and sometimes though there be no anchor. And this doth in truth properly and primá facie arise from or in respect of the propriety of the soil, and is evidence of it. But yet it is not so always, but grows due in respect of the franchise; for many times when the shore of a harbour belongs to a private lord or owner, yet if at full sea a ship lets fall an anchor upon that place, the king or lord of the port in point of franchise hath usually the anchorage." The latter part touches very much the present case, and shews that anchorage may be severed.

[LORD CAMPBELL, C.J.-But in the present case the tolls do not appear to have been severed.]

The bishops have the jura regalia, and a port is a jus regale independent of the proprietorship of the soil, and the bishops, therefore, hold the soil in respect of the ordinary jus regale, and the franchise of the port from the Crown. And the respondents must shew that the toll is paid in respect of one portion of the soil as a profit derived from it. This toll is taken whether the ship drop anchor on the appellant's soil

or not.

[LORD CAMPBELL, C.J.-But it is paid for the privilege of anchoring if they choose.]

That will shew that it was not in respect of the occupation. Lewis v. the Overseers of Swansea (4) is a direct authority for (4) 5 E. & B. 508; s. c. 25 Law J. Rep. (N.S.) M.C. 33.

the appellant. There the corporation of Swansea received " quayage" dues, there being three classes of quays, one the soil and freehold of the corporation, and occupied by them, and another occupied by their lessors, and a third the property of a private individual, and the dues were paid whatever class of quay was used for landing the goods; and it was held that these dues were in gross. Lord Campbell, C.J. says, in giving judgment, "Is this a payment for the use of the soil? Prima facie it would appear to be so, for it is called quayage. But we find that a party not in occupation of the soil may have their town dues, as they are also called. It seems to me that such a payment is not made for the use of the soil." And, Wightman, J. says, the toll is a toll in gross. "It is taken without any distinction as to the occupation of the land which is used for the goods, and it is a mere accident that the corporation are the occupiers of a portion of the land." So here, it is a mere accident that the appellant had granted to him the soil as well as the franchise; there is a separate demise of the anchorage, beaconage, and other franchises. In Roberts v. the Overseers of Aylesbury (5), tolls in respect of actual use of stalls were held rateable, but tolls in respect of goods merely brought within the market were held not rateable. There the tolls were separable. Here, there is but one payment, for "beaconage and anchorage" together. The former cannot be connected with the use of the soil, and is not rateable-The King v. Coke, and Com. Dig. tit. 'Navigation,' (H).

Welsby, in reply.-It cannot be said that the tolls are not earned on the appellant's soil; there is an express finding that the soil of the port below low water-mark is in the bishop and his lessees.

Cur. adv. vult.

LORD CAMPBELL, C.J. (July 2) delivered the judgment of the Court (6).—In answering the first question, "whether the tolls are rateable," we are to consider whether they are tolls in gross, or tolls connected with

(5) 22 Law J. Rep. (N.s.) M.C. 34; s. c. 1 E. & B. 423.

(6) Lord Campbell, C.J., Wightman, J., Erle, J. and Crompton, J.

the occupation of the soil; and this must be determined in the same manner as if the nature of the tolls had been discussed when they were received by the Bishop of Durham or his lessee before 3 Geo. 1. c. 3, 6 & 7 Will. 4. c. 19, and 21 & 22 Vict. c. 45, none of these statutes having severed the tolls from the soil, if they ever were connected together. According to the statement in the case, these tolls have always been taken in respect of ships entering and using the port of Sunderland. This port begins on crossing the bar at the mouth of the River Wear, extends to a bridge near Limley Park, comprehends the whole space of the river from low water-mark on the north side to low watermark on the south side, and is in the several contiguous parishes or townships on both sides, usque ad medium filum aquæ. The Bishop was the owner of the whole soil and freehold of the said port between low water-mark on the one side and low water-mark on the other side. Every ship entering the port may have to cast anchor therein or to be moored to some moorings affixed in the river and sunk in the river, or on the quays or shores adjacent. The Bishop and his lessees maintained the beacons and moorings in the River Wear. Previously to the appointment of Commissioners, the port and the affairs and business thereof were managed and conducted by the Bishops of Durham or their lessees, under leases similar to that granted to the appellant, or by officers or others in that behalf authorized, appointed or employed by such bishops or lessees; and by such bishops, lessees or officers, beacons were set up, mooring buoys, posts and rings were placed and fixed within the port, for the use and benefit of ships entering the port, and other works were done for the maintenance of the port and the use and benefit of the ships resorting to it. The tolls rated have been paid immemorially to the Bishop or his lessees, and have been called "anchorage and beaconage tolls," being 1s. 2d. for and in respect of every British ship which enters the port; and formerly double that sum was paid, and now, by act of parliament, in consequence of reciprocity treaties, the same sum is paid on every foreign ship which enters the port.

The tolls are supposed formerly to have been collected by water-bailiffs appointed by the bishop or his lessees, but are now received by the collector of lighthouse dues in the port of Sunderland, at his office in the custom-house there. The tolls appear to have been rated to the relief of the poor in the parish of Sunderland since the year 1719; but they were not rated in any of the townships into which the port of Sunderland extends till 1852. In that year the ancestor of the appellant, who was the lessee of the tolls, appealed against the rate for the parish of Sunderland, but abandoned that appeal, and agreed with the overseers of Sunderland to be rated on 150. Immediately afterwards, the five townships named in the case rated these tolls, making an aggregate of 4031. 3s. 4d., which, if they are rateable, is admitted to be the fair amount.

Taking all these facts into consideration, we are of opinion that the tolls are not tolls in gross, but are tolls connected with the occupation and use of the soil. They seem to us to be very much in the nature of dock dues. The Bishop was the owner of the soil of parts of the port, and by the outlay of money on various works he rendered the port safe and commodious for shipping; in consideration whereof, by an exercise of the just prerogative of the Crown, he appears to have been authorized to receive a fixed sum of reasonable amount from every ship which entered his port. Consuetudines, or tolls, are almost incident to every ownership of a port; and we think they are to be considered as payable ratione soli, and for benefit conferred, not an arbitrary extortion under the colour of law. The toll here is called "anchorage and beaconage," but it must be considered as covering all the accommodation afforded by the owner of the port to the ships which frequent it, as no other payment is made to him. There was a strong objection offered to "beaconage," but the owner of this port does appear to have erected beacons within the port, and the anchorage and mooring chains are a direct use of the soil within the parish and townships imposing the rate. If the use of the soil is any part of the consideration for the payment of the tolls, we think that this is enough to connect them with the occupa

tion and use of the soil, and to render them rateable. We lately held, in the Runcorn case, that tolls called "anchorage," which probably were for the use of the soil, were not rateable; but that was because it was found that the corporation of Liverpool, the appellants, were not the owners or occupiers of any land within the township; the place where the ships anchored being extra-parochial. Here the soil, where the ships anchor and the mooring chains were fixed, is within the parish or township of the respondents.

If there be a payment to the owner of the soil, by the party who uses his soil, and no other consideration can be suggested for the payment, must not the use of the soil be regarded as the consideration for the payment? The tolls originally connected with the soil may be severed from the soil, and become tolls in gross. Here, however, there is nothing to shew such a severance; for the tolls and the soil have remained united in the same owner.

The counsel for the appellant chiefly relied upon the Swansea case. There all the tolls rated, wheresoever collected within the port, were considered to be of the same uniform nature, and part of them being clearly not for the use of the soil and not rateable, this was supposed to give the same character to the whole. The King v. Coke and the other lighthouse cases, were likewise referred to; but these merely decide that the owner of the lighthouse cannot be rated for passing tolls collected out of the parish, as they do not constitute part of the annual profits of the house or land where the light is placed. The tolls in question, on the contrary, constitute part of the annual 'profits of land occupied by the appellant within the township, and, therefore, they are rateable. Objection was made that the foreshore between high and low water-mark did not belong to the bishop, and that payments were sometimes made to the private owners of the foreshore by ships for the use of it. How can these conventional payments, made to others for the use of their soil, at all affect the nature or the incidents of the payments made to the bishop for the use of his soil?

We are likewise asked by the first question, "whether the tolls are rateable in all, or which, of the said townships or parish?"

We answer, in all in which any part of the port of Sunderland is situate, and to which ships paying the toll come. These seem to be the parish of Sunderland and the five townships in which the tolls are now rated. There are other parishes and townships into which the port extends, but as it is not stated that ships which have paid the toll come into these parishes and townships, we do not think that in respect of the tolls there is any profitable occupation of the soil of the port within those parishes and townships.

In answer to the second question, we are of opinion, that, in the parish and five townships in which the tolls are rateable, they ought to be rated upon a calculation of the number of ships paying the toll and coming into those parts of the port which are in the parish of Sunderland, and the five townships respectively; and that they ought not to be rated according to the frontage or population, neither of which could afford any criterion for the profits of the soil of the port made within the parish or the townships.

1859. June 15.

Judgment for the respondents.

PETO AND OTHERS, appellants,

V. THE PARISH OF WEST HAM, respondents.

Watching and Lighting Rate-Mode of Assessment" Houses, Buildings and Property, other than Land"-3 & 4 Will. 4. c. 90.

By the 3 & 4 Will. 4. c. 90. s. 33, the Watching and Lighting Act, 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. The appellants were the occupiers of certain docks, covering an area of 165 acres, 95 of which formed a wet dock, or tidal basin-Held, by Lord Campbell, C.J., Wightman, J. and Crompton, J., that this dock or basin was property ejusdem generis with the houses and buildings mentioned in the act, and therefore that the appellants were rateable at the higher amount.

Held, by Erle, J., that they were only rateable at the lower amount, as the area of 95 acres was "land."

Upon appeal to the General Quarter Sessions of the Peace for the county of Essex, on the 19th of October 1858, against a lighting and watching rate, the Sessions confirmed the rate, subject to the opinion of the Court upon the following

CASE.

The appellants are lessees and occupiers of the Victoria London Docks, situate in the ward of Plaistow, in the parish of West Ham, Essex. The General Lighting and Watching Act, 3 & 4 Will. 4. c. 90, has been adopted in the said ward. The docks in question are built in the usual manner, and surrounded by banks and quays used in loading and unloading the ships that enter them. The supply of water is derived from the Thames, which flows into the dock basins through the flood and lock gates, in the assessment hereinafter mentioned. These docks are leased to the appellants by the Victoria London Dock Company, who constructed them, under the powers of the Victoria London Dock Act, 1850, and the Victoria London Dock Act, 1853. The property is rateable to the poor in the said parish, and was and is assessed to the poor rate for the said parish as follows. (Then followed an extract from the rate-book, which shewed land amounting to 165 acres 3 roods 24 perches, the rateable value being 12,500l., and the rate being 9371. 10s.) Of the area of 165 acres 3 roods 24 perches thus assessed, 95 acres form a wet dock, or tidal basin, connected with the river Thames by a lock and canal, and always covered with water, being below low watermark. Ships entering the docks and using the wet docks or tidal basin, pay a certain and defined rate per ton for the water accommodation. Charges on a different basis are levied for the use of the warehouses and buildings. The accounts of the money accruing from the above-mentioned sources of income are kept distinct.

The appellants, as such lessees and occupiers have been assessed by the churchwardens and overseers of the poor of the said parish for the purposes of the Light