FULHAM VESTRY v. MINTER.

if not, then the summons is to be remitted to me or such other order made as to the court may seem fit. JOHN ROSE.

The judgment delivered by the learned magistrate on the summons was as follows:The question is whether the apportionment of the estimated expenses of paving a new street under the Metropolis Management Acts is valid, inasmuch as it does not include the vestry as the owners of the land bounding or abutting on such new street, and held under the Open Spaces Acts. The Metropolis Local Management Act (18 & 19 Vict. c. 120), s. 105, enacts that the expenses of paving a new street must be paid by the owners of the houses forming such street, and under the Amendment Act (25 & 26 Vict. c. 102), s. 77, the owners of the land bounding or abutting on such street shall be liable to contribute. By the interpretation clause, section 250 of the principal Act, "owner" shall mean "the person for the time being receiving the rack rent of the lands or premises in connection with which the said word is used, whether on his own account or as agent or trustee for any other person, or who would so receive the same if such lands or premises were let at a rack rent." Why was this definition, which limits the ordinary meaning of the word "owner," given in the Act? The reason may be this: A new street has to be paved. The first cost of the paving is laid on the frontagers who derive the immediate benefit from the paving. The Legislature did not think fit to impose the first cost, which is considerable, on mere occupiers whose tenancies might be short and means small, or even on mere owners who might have a reversionary interest in the land and get little or no present return from it, or advantage from the paving; but the Legislature might well have thought that where the owner did, or if he chose might, get substantial profit, rack rent, from the land-perhaps indirectly from the improvement of the streethe ought to bear his part of the expense of paving it, and therefore have given this definition of "owner." The vestry are in law owners of land bounding or abutting on the street. They also would receive the rack rent of the land if such land were let at a rack rent, and they are therefore within the literal terms of the interpretation clause. But it is said that they are nevertheless not owners within the meaning of the Act

65 J. P. 180.

because the land cannot be let at a rack rent. Perhaps if the attention of the Legislature had been called to the fact that this was land from which no profit could possibly be got out of which the cost of paving could be paid, the owners of such land would have been expressly exempted from contribution. It may not be unreasonable to imply such exemption. That some limitation of the literal terms of section 77, and the definition clause, section 250, may be implied is evident from Angell v. Vestry of Paddington, L. R. 3 Q. B. 714; 32 J. P. 742, in which a church and its land were held to be neither house nor land within the Act; and perhaps also from Plumstead Board of Works v. British Land Company, L. R. 10 Q. B. 203 ; 39 J. P. 376, in which the Exchequer Chamber held that the owners of the soil of highways at the end of a street were not owners of land in the street so as to be liable to the cost of paving it.

The learned counsel for the vestry, in a fair and skilful commentary on the cases, mainly relied on the principle stated in Great Eastern Railway v. Hackney District Board of Works, 8 App. Cas. 687, 693, by Lord Watson, who said: "The authorities cited in the course of the argument appear to me to have established this proposition that the person vested with the property of heritable subjects which have been placed extra commercium, or are subject in perpetuity to the burden of a public right which deprives him of their beneficial use, is not an owner of land within the meaning of section 77 of the Act of 1862." The principle is there expressed in the terms of the Roman and Scotch rather than in those of English Law. But Mr. Macaskie also referred me to the language used by Bowen, L.J., who said, in Wright v. Ingle, 16 Q. B. D. 379: "Whether in the case of premises which were prevented by an Act of Parliament from being let at a rack rent there ever would be an owner within the meaning of section 250, I very much doubt, but I am inclined to think that if this incapacity to let were stamped on the premises they would never have an owner within the meaning of section 250." Let me try to apply to this case before me these authoritative dicta, which afford the chief support to the argument for the vestry. This land was acquired and is held on fee simple by the vestry under statutory powers in trust

FULHAM VESTRY v. MINTER.

for the perpetual use thereof by the public for exercise and recreation under 40 & 41 Vict. c. 35, s. 1, and for no other purpose, by 44 & 45 Vict. c. 34, s. 5. But the vestry may erect and maintain thereon (inter alia) convenient and ornamental buildings and such appliances as they may think requisite for purposes of exercise and recreation and for refreshment-rooms, band stands, conveniences, or for other like purposes; 56 & 57 Vict. c. lxxi. Is the effect of these statutory restrictions to place the land extra commercium within the meaning of Lord Watson, or is the incapacity to let stamped on the premises within the meaning of Bowen, L.J.? The open space is by the statutes placed extra commercium in the sense that it cannot be alienated or disposed of in any way inconsistent with the perpetual use of it by the public for exercise and recreation. There is, however, no express statutory prohibition against letting the land or buildings lawfully erected thereon on terms which will preserve the rights of the public, and I do not think that such prohibition must necessarily be implied from the Open Spaces Acts, but perhaps it is unnecessary to establish the proposition that the land may be actually let at a rack rent in order to bring the owner within the definition in section 77, and I think that the decisions by which I am bound leave me free to adopt the view taken by Collins, J., in Vestry of St. Giles, Camberwell v. London Cemetery Company, [1894] 1 Q. B. 706, who says: "In order to be exempt the land must be extra commercium, but where the owners entitled by statute to use it beneficially, receiving as profit a lump sum which is equivalent to a rack rent, the land is not extra commercium." In this case the owners are expressly empowered by the London Open Spaces Act, 1893, s. 25, to erect and maintain buildings and appliances for exercise and recreation and for refreshmentrooms, band stands, and conveniences, and for other like purposes. It would be easy to suggest buildings and appliances which might be erected for exercise and recreation from which profit might be derived. It could not be reasonably implied that the refreshments, for example, involved in the use of refreshment rooms are to be supplied gratis or at cost price to the public, and if charges may lawfully be made for these

are

65 J. P. 180.

accessories, they become sources of profit which may be equivalent to a rack rent. If rack rent or its equivalent may lawfully be got, an inquiry whether it is actually got may be superfluous, but some profit is, in fact, got from the open space. A refreshment stall is let for 251. a year. Chairs are supplied, for the use of which money is paid. Fees are taken with the sanction of the vestry for the use of a cloak room. The receipts may not, perhaps at present, amount to a rack rent, but it is conceivable that a larger sum might be obtained from these sources, especially for the privilege of selling refreshments at a place of popular resort for exercise and recreation. Mr. Macaskie said that the refreshment-stall is not on the land abutting on the section of the "new street" which is the subject of the apportionment. I think that the rent for it may be regarded as derived not merely from the refreshmentstall, but from the whole area of the open space, including the part abutting on the street, which makes the stall valuable. If, however, I am wrong in so thinking, the fact remains that other refreshment-rooms or means of deriving profit may be lawfully set up on the piece of land actually bounding or abutting on the new street. In my opinion, the vestry are, within 25 & 26 Vict. c. 102, s. 77, and 18 & 19 Vict. c. 126, s. 250, owners of land bounding or abutting on such street; they are trustees for the public and would receive the rack rent of the land, if such land were let at a rack rent, as I think it lawfully might be without interfering with the purposes to which the land is devoted by statute. No decided case is on all fours with the present one, and Mr. Macaskie pointed out to me the distinctions between it and those cases which seemed to be against him. But several decisions were cited that were nearly in point, and tend to support the conclusion to which I have come, viz., that the apportionment is invalid because the owners of the open space are not included as contributories to the expense of paving the new street.

Macaskie for the appellants.-The question here is whether the vestry are liable to contribute to the paving of a new street which abuts on a piece of land held by them in trust for the use and recreation of the public and for no other purpose. The power under which the vestry are sought to be charged is found in section 105 of the Metropolis

FULHAM VESTRY v. MINTER. Management Act, 1855, which enacts that where a new street is not paved to the satisfaction of the vestry, the vestry may do the paving and charge the cost upon the owners of houses forming such street; and by section 77 of the Metropolis Management Act, 1862, owners of land bounding or abutting on such new street were also made liable to contribute, with the proviso that the vestry might charge such frontagers, if they thought expedient, in less proportion than the owners of houses. The vestry, it is true, are the owners of land abutting on a new street, but the trust under which they hold such land makes it incapable of ever producing any rent, and the land is therefore extra commercium, and the vestry are exempt from any contribution. The land in question was acquired by the appellants under the Open Spaces (Metropolis) Act, 1877 (40 & 41 Vict. c. 35), s. 1, and the Metropolitan Open Spaces Act, 1881 (44 & 45 Vict. c. 34), s. 5. By the London Open Spaces Act, 1893 (56 & 57 Vict. c. lxxi., s. 35), it is provided: "It shall be lawful for any vestry or district board acting under the Metropolis Management Act, 1855, and the Act amending the same, to erect and maintain on any of the open spaces belonging to, or under the control of, such vestry or district board, buildings for the accommodation of keepers, constables, and other persons employed by them in connection with the maintenance and management of such open spaces, and also such other convenient and ornamental buildings, and such appliances as they may think requisite for the purpose of exercise and recreation, and for refreshment-rooms, band stands, conveniences, and other like purposes. Provided that the consent of the county council under their common seal to the erection thereof be first obtained, and the expenses so incurred by them shall be deemed to be expenses incurred by them under, and for the purposes of, the said Acts, and may be defrayed." The vestry have accordingly erected a band stand, refreshment-room, and gardener's cottage. There is no statutory power to charge such buildings for paving purposes, and the trust under which the land is held prevents the vestry from ever making a profit out of the land. The vestry cannot be the "owners" of the land within the meaning of the Act. The definition clause of the Metropolis Management Act, 1855, s. 250, defines

65 J. P. 180. "owner" as the person receiving the rack rent of the land or premises in connection with which the word is used, whether on his own account or as agent or trustee for any other person or who would so receive the same if such lands or premises were let at a rack rent. It was held in Angell v. Paddington Vestry (supra), that commissioners to whom land is conveyed for building additional churches are not "owners" within the meaning of this section, nor are the Ecclesiastical Commissioners, to whom land has been conveyed under the Church Building Acts. (Plumstead District Board v. Ecclesiastical Commissioners, [1891] 2 Q. B. 361; 40 J. P. 191.) The case of Bowditch v. Wakefield Local Board, L. R. 6 Q. B. 567; 36 J. P. 197, is not in point. That was a decision under the Public Health Acts that the trustees of a national school were owners, and as it was under different statutes passed for different objects, it does not affect this case. In that case, too, there was no perpetual trust as in the present case. In Caiger v. St. Mary's, Islington, 50 L. J. M. C. 59; 45 J. P. 570, it was held that trustees of an unconsecrated chapel were owners, but in that case again there was no perpetual trust, and the trustees could have sold or let a rack rent. Wright v. Ingle (supra) was also a case where the trustees of a chapel were held to be owners on the same ground, but Lord Esher, M.R., in his judgment on p. 392, says: To my mind it is obvious that these words cannot be intended to apply to premises which never can be let at all at a rack rent." That is in the appellant's favour, as the vestry can never let this ground at a rack rent. That was the ratio decidendi in Plumstead District Board v. British Land Company (supra), where it was held that owners of land vested in them for use as a highway were exempt. He also cited Great Eastern Railway Company v. Hackney District Board (supra), St. Giles, Camberwell v. London Cemetery Company (supra). In St. Mary, Islington v. Cobbett, [1895] 1 Q. B. 369, there was only a temporary prohibition and not a perpetual trust as in the present case, that is shown by the judgment of Charles, J., on p. 374. Meyrick v. Attorney-General, [1894] 1 Ch. 209, is at first sight against me, but that was decided under the Public Health Acts; moreover there were valuable and profitable rights attaching to the land. The case of London County Council v. Lambeth Vestry,

66

FULHAM VESTRY v. MINTER. [1897] App. Cas. 625; 60 J. P. 470, it is true was a case of poor rates, but the judgment of Lord Halsbury, L.C., is in point. Hornsey District Council v. Smith, [1897] 1 Ch. 843; 61 J. P. 311, is distinctly in favour of the appellants' contention.

Bray, Q.C., and B. A. Cohen for the respondent. The onus of proving that he is not an owner lies on the person claiming the exemption. That onus has not been discharged in the present case. The definition of owner does not say of lands which could be let at a rack rental, but of which are let at a rack rental, or if they were let the person receiving the rack rent. Rack rent means the best rent that can be obtained for the land under the circumstances. Here there is a cloak-room in which fees are taken, a band stand round which the right of charging for chairs to sit upon is let out, a refreshment-stall which is let to a caterer. All these produce rent of some sort to the vestry. They cannot be heard here to say that such receiver of rent is illegal, and that therefore it ought not to be considered in this case. The case that is the only one that is near this is St. Giles, Camberwell v. London Cemetery Company (supra), and that is distinctly in favour of the respondents.

Macaskie in reply.-The actual receiver of rent is not sufficient. The refreshmentstall is in fact situated in a part of the open space far away from the new street.

BRUCE, J.-In this case I think the decision of the learned magistrate was right and that we ought to affirm his decision. I have to say that I feel myself very much indebted to the magistrate for the very careful judgment he has delivered. It has been an assistance to me in considering this case. I think he has correctly and accurately stated the law and correctly applied it to the facts of this case. Now I do not propose to go through the very numerous cases which have been cited during the argument, but I think the principle of the cases may be said to be this: that where there exists lands or houses abutting upon a new street, there the person who receives the rent, or who, if rent were payable, would receive the rent, and who is the owner within the definition of owner given in the Act of Parliament, is liable to contribute to the expenses of the new street. This exception has been established that where the premises held are of such a character that they are struck with a

65 J. P. 180.

legal incapacity of ever being used, if a house as a house or if land is struck with the same incapacity of ever being let at a rack rent, that incapacity being of a permanent character and of such a kind as to affect the nature of the property, then the property is not property of which there can be an owner within the meaning of the statute. That is the substance of the definition, I think, given by the judges in Wright v. Ingle, 16 Q. B. D. 379. I refer to the decision in Great Eastern Railway Company v. Hackney District Board of Works (supra), where he held that the company were not owners of land abutting on a highway because "the person vested with the property of heritable subjects which have been placed extra commercium, or are subject in perpetuity to the burden of a public right which deprives him of their beneficial use, is not an owner of land within the meaning of the section 77 of the Act of 1862." So that unless the land or the houses are brought within one of these definitions, unless they are struck with an incapacity to be let, or I should say an incapacity to be used beneficially, they are liable to contribute to the expenses of the new street. Now in the present case the question we have to consider is this: whether the land in question is struck with such incapacity. I think not. It is conveyed to be kept and maintained as an open space for the perpetual use thereof to the public for exercise and recreation and for no other purpose. But although it is subject to that burden, it seems to me that that is not a burden which deprives the vestry altogether of the beneficial use of the property. They possess power to erect and maintain on the open spaces buildings for the accommodation of keepers, constables, and other persons employed by them in connection with the maintenance of the open space, also such convenient and ornamental buildings and such appliances as they may think requisite for the purpose of exercise and recreation, and for refreshment-room, band stand, conveniences, and other like purposes provided that the consent of the county council be first obtained. So that they have the power here to do many things which are not inconsistent with the enjoy ment of the place as an open space for the public. They may build a gardener's cottage and the gardener who is attending to the open space may live there. It may be said

FULHAM VESTRY v. MINTER. they are not entitled to charge a rent for his living there. I do not know whether that is so or not. The occupation of the cottage would be a beneficial occupation, because it would be taken into account in payment of his wages, and therefore it would be a beneficial occupation by them for the purpose of the occupation of their servant. Again, the band stand to be erected is for the advantage of the public. It may be possible, although no charge could be made to the public for listening to the band or for entering the ground, that the bandmaster might solicit contributions from the public, and obtain contributions from the public to a considerable amount; and for the privilege of playing there and soliciting contributions from the public, he might pay a sum of money to the vestry, and there might then arise beneficial occupation. So with regard to the refreshment-room. That is let, and they do derive a sum of, I think, 25l. a year for the use of the refreshment-room. There again, there is a beneficial occupation, and so I think in many ways the vestry might derive consistently with the terms on which they hold this land a beneficial occupation, and it cannot be said that this land is extra commercium, or that, although it is dedicated to the use of the public, the vestry are prohibited from obtaining any profit from it. Then it was said in the argument that Mr. Macaskie addressed to us lately that they could not let it at a rack rent. Letting it at a rack rent, I think, merely means that the land is let for the best return that can be obtained for it. But I shall adopt the dictum of Collins, J., in Vestry of St. Giles, Camberwell v. London Cemetery Company (supra), for in considering this question of a rack rent, he says:

"But where the owners are entitled by statute to use it beneficially, receiving as profit a lump sum which is equivalent to a rack rent, the land is not extra commercium. It would be too narrow a conclusion that because the redditus is not received in the shape of a rack rent the land is placed extra commercium, and the owners are not owners within the meaning of the statutes." Therefore I think here there is a beneficial occupation, and there being a beneficial occupation I think the vestry are the owners of the land within the meaning of the definition given of owners, and that they are liable to contribute to the expense of the new street.

65 J. P. 180.

PHILLIMORE, J.-I am of the same opinion. I also wish to express my obligations to the learned magistrate for the way in which he has stated this case and assisted us with his reasons. By the joint effect of the two Metropolis Management Acts the owners of house and land bounding and abutting upon a new street are bound to pay to the vestry expenses of making up the new street, and the owner means the person for the time being receiving the rack rent of the lands or premises in connection with which the said word is used, whether on his own account or as agent or trustee for any other person, or who should so receive the same if the lands or premises were let at a rack rent. The very large and general words of that section have been limited by decisions (and that is the way, I think, in which we ought to look at it) to this extent, and this extent only, that if the lands or premises are for all time incapable of being beneficially used they are not to be treated as lands which are or could be let at a rack rent. At one time I thought, perhaps, the right thing was to say, "if the lands could never legally be let at a rack rent"; but the decision in Vestry of St. Giles, Camberwell v. London Cemetery Company, (supra), and, I thought, the language of Lord Watson in Great Eastern Railway Company v. Hackney District Board of Works (supra), point to the fact that that is somewhat too narrow a view. The lands must be, as Bowen, L.J., points out with regard to the buildings -the same thing would be true of landsphysically capable of beneficial enjoymentprofitable enjoyment. They must be also. legally capable of profitable enjoyment, apparently upon a decision not necessarily legally capable at the moment, but legally capable at some time or other. If these two conditions are satisfied, then the lands fall into the ordinary category, and are lands abutting on the street which have an owner, and if there is an owner in this case, there is no question it must be the vestry. Now what one has to consider is, Is this land capable of any profitable or beneficial enjoyment? I agree it is not capable of much. I agree that some of the suggestions-possibly some I made myself- are rather fanciful and strained; but the fact remains, first of all, that actually at this moment a portion of the land is beneficially enjoyed; and, secondly, that beneficial and profitable enjoyment can to some extent be got