The rateability of proprietors of canals, water works, gas-light works, and railways, in respect of their tolls, has, after much debate, been at length referred to the same principle, and is fully established to be that the tolls are rateable as profits of land occupied within the parish for which the rate is imposed, and actually earned or arising within such parish (r). In the earlier decisions there is some confusion arising from the floating notion that tolls were rateable in themselves; but since the determinations by which the liability to rating has been confined to things capable of occupancy, and lying in livery (s), it has been clear that non-resident canal proprietors can only be rated when they occupy land lying in the parish. Thus, where a company were empowered by act of parliament to make a river navigable; to cleanse, enlarge, and straighten it; to make cuts through adjoining lands; and to build bridges, sluices, and locks, and do all things necessary to make and maintain the navigation; and were further authorized to take tolls by way of recompence; it was holden that they were not rateable for the navigable bed of the river, inasmuch as they had no interest in the soil, but a mere easement on it; but that they were rateable for the cuts made through lands in which they had an interest (t), and for locks or works constructed on land which had vested in them (u). So when power, similar to the above, was given, and a subsequent act recited that the legal estate and interest in the navigation were vested in trustees, and enabled them to mortgage the navigation in fee, it was holden that this recital and power to mortgage did not vary the case; that the word navigation imported an incorporeal hereditament only, and that the company, having only such hereditament, were not rateable as occupying the bed of the river (x). And an attempt to evade this decision by rating the company for a dam made by them under the power of the act, by which the water of the river was upheld, was defeated, the court holding, that to rate the dam, would in effect be rating the water (y). On the other hand, when a lock or sluice is

(r) See cases collected, Reg. v. Bristol Dock Company Proprietors, 1 Q. B. 556, and Reg. v. London and South Western Railway Company, 1 Q. B. 558, and more fully, post, p. 682.

(s) E. g. R. v. Nicholson, supra, and Williams v. Jones, 12 East, 346.

(t) The amount of rate for such cuts should be fixed according to the general value borne at the time of making the rate by the land immediately adjoining; not excluding the value it derived from

the vicinity of the canal, but not reckoning its possible value if acquired by applying it to the purposes of a canal, R. v. Leeds and Liverpool Canal Company, 7 Ad. & E. 671; 2 Nev. & P. 540.

(u) R. v. Mersey and Irwell Navigation Company of Proprietors, 9 B. & C. 95; R. v. Thomas, id. 114, S. P.

(x) R. v. Aire and Calder Navigation, 9 B. & C. 820.

(y) S. C. 3 B. & Adol. 139.

vested in an individual or a company, and tolls are payable on the passage of vessels which they receive for their own benefit, they are rateable as occupiers of the sluice for the profits which its occupation affords them (z); and on the same principle, a company who were authorized to break up the soil of the streets of a town, and to lay down pipes in order to supply gas for lighting streets and houses, were held to be occupiers of the soil in which the pipes were laid, and rateable in that character for its value when so used for the purposes of their incorporation (a).

In the case of fisheries, a similar distinction will be found to prevail. Thus a mere right of fishing in alieno solo, being an incorporeal hereditament, is not rateable; but where any interest in the soil is enjoyed with that right, the fishery may be regarded as capable of occupancy, and as such may be rated to the poor (b).

Second.-How "Lands and Houses' must be occupied torender them Rateable.]-To render any property liable to the rate, it must be occupied for the benefit or under the control of some individual or body of persons. If, therefore, a house be shut up and wholly unoccupied, the owner is not liable to be rated for it; though if he occasionally use any part, he will be liable to be rated for the whole (c). So property devoted entirely to public purposes, as palaces, inhabited by the royal family; public buildings, which are kept in order only by servants; places of public worship, of which no profit is made by any one; apartments used for exhibition of works of art (d); gaols, &c., are not rateable: while parts of these same properties, enjoyed exclusively by private individuals, not as mere servants, are rateable (e). By 6 & 7 V. c. 36, land, houses, or buildings, or parts of the latter, belonging to any society, instituted for purposes of science, literature, or the fine arts, exclusively, either as tenant or owner, and occupied by it for transaction of its business, and carrying into effect its purposes, and supported by voluntary contribution, are exempted from rates, subject to obtaining certain certificates stated in the act.

The question in all cases is, Whether there is any one who can be

(z) R. v. Cardington, Cowp. 581, as to the proportion in which buildings of a canal company should be rated, R. v. Chelmer Navigation, 2 B. & Adol. 14. Rating a toll-house, R. v. Snowden, 4 B. & Adol. 713; 1 Nev. & M. 459.

(a) R. v. The Brighton Gas Light Company, 5 B. & C. 466; 8 Dowl. & Ry. 308.

(b) R. v. Ellis, 1 M. & S. 652.

(c) R. v. St. Mary the Less, 4 T. R. 477. See 6 & 7 W. IV. c. 96, post, p. 684.

(d) Reg. v. Shee and others, 12 L. J. (M. C.) 53.

(e) Gaoler is an exception, Reg. v. Shepherd, post, p. 677.

fixed on as having a "beneficial occupation?" if so, he is liable to be rated in respect of that occupation, whatever may be the general use of the land or building in which he has an interest ; if no such person can be found, no rate can be imposed on the premises. Thus, if the site of a palace be demised to a subject (f); if the ranger of a royal park, as such, makes a profit by inclosed land within it (g); if an officer in barracks, unlike a private soldier, who is supposed merely to be provided with the means of healthful living, has apartments for the accommodation of himself and his family (h); if persons appointed to manage charitable institutions have rooms assigned to them for habitation, as part of their emoluments (i); these parties will be rateable for the premises which they actually enjoy. In the case of chapels appropriated to public worship, it has been settled that if no rents are received, as in the case of a quakers' meeting-house, although a room might be used by an attendant or door-keeper, paid by a salary, the place is not rateable (k); but that if the pews are let, and trustees receive the rents, although they might expend more than they received, in the salary of a minister, or in payments to various ministers, and in other incidents of public worship, they are rateable as beneficial occupiers (1). Owners of a cemetery authorized by statute to dispose of the exclusive right of burial therein, either in perpetuity or for limited periods, are occupiers of the land, so as to be rateable on the amount received by them for individual interments, and sales of land in perpetuity (m).

And no person can now be rated to church or poor rates or cesses for any church, district church, chapel, meeting house, or premises, or for such part thereof, as shall be exclusively appropriated to public religious worship, and which, if not of the established church, are duly certified for the performance of religious worship according to the acts in force (n).

The rule that rateability always attaches on beneficial occupation, is subject to no exception in the case of premises devoted to charitable

(f) The Duke of Portland's case, 1 Bott, by Const, 131.

(g) The Earl of Bute v. Grindall, 2 Hen. Bla. 265,

(h) R. v. Terrott, 3 East, 106. (i) R. v. Catt, 6 T. R. 332. (k) R. v. Woodward, 5 T. R. 79. (1) R. v. Agar, 14 East, 256. So comm, semb. where a clergyman of the establishment received rents of pews let for his benefit, Robson v. Hyde, Caldecot, 310.

(m) Reg.v. St. Mary Abbots, Kensington (Inh.), 12 Ad. & E. 824 (Kensal Green Cemetery case).

(n) 3 & 4 W. IV. c. 30, s. 1. Any parts of such premises, &c. which are not so exclusively appropriated, and from which rent or profit is received, are still rateable, ib., unless they or any vestry rooms, &c. be used for Sunday or infant schools, or for the charitable education of the poor, id. s. 2.

or educational (o) uses. Thus hospital lands are rateable in the hands of a beneficial occupier (p); and although the patients in an hospital cannot be regarded as occupiers, yet the possessors of almshouses enjoying them upon the foundation, are rateable, if the parish officers think fit to rate them (q).

On the other hand, when all the funds arising from any property are appropriated to objects or purposes strictly public, or to religious and charitable purposes only (r), no rateability attaches. Thus, where the tolls of a sluice were by act of parliament applicable only to its repairs, and to specified public purposes, it was holden that the commissioners whose duty it was to receive and apply the tolls were not rateable, deriving no benefit (s). Again, where the trustees of a harbour and of docks were empowered to take certain duties from ships, and were also directed to apply the rates towards paying off the debt incurred in the construction of the works and in keeping them in repair, and, where able, to lower the rates to such sums as should be requisite for the repair and management of the works, they were holden not liable (t). One act authorized commissioners to light a town with gas, and to levy rates to pay the expense: another, to make gas and let it The profits were to go first to pay the expense of the gas apparatus, &c., and any surplus "generally to the purposes of both acts." The money was applied accordingly, and it was held that as all which was raised went to lessen the expense of the lighting, the commissioners could not be rated for the gas works (u). So, when the surplus tolls of a navigation were directed by statute to be expended in repairing public bridges and highways, and in aid of other public charges on the county, its works were holden not to be the subjects of rating (x). The corporation of Liverpool had been rateable and rated to the poor in respect of their town and anchorage dues, down to 1835. But since" all the income" (y) of corporate property was appropriated to purposes of a public nature, by section 92 of 5 & 6 W. IV. c. 76, it became no longer rateable (z), till 4 & 5 Vict. c. 48, made it so in nearly all cases.

out.

(0) See Reg. v. Ellis and Greenwood, 12 L. J. (M. C.) 20; Reg. v. Sterry and another, 12 Ad. & E. 84; Reg. v. Taunton Market Trustees, 1 New Sess. Cas. 543.

(p) R. v. Gardner, Cowp. 13.

(g) R. v. Green, 9 B. & C. 203; 4 Man. & Ry. 164; S. P. R. v. Mundy, 1 East, 583.

(r) Reg. v. Thomas Wilson, 12 Ad. & E. 94, London Missionary Society.

(8) R. v. The Commissioners of Sal

ter's Load Sluice, 4 T. R. 730.

(t) R. v. Liverpool (Inh.), 7 B. & C. 61; 9 Dowl. & Ry. 780.

(u) R. v. Beverley Lighting Commissioners, 6 Ad. & E. 645; 1 Nev. & Per. 646.

(x) R. v. Weaver Navigation Trustees, 7 B. & C. 70, note.

(y) See per Lord Cottenham, C., in Attorney General v. Aspinall, 2 Myl. & Cr. 619.

(z) Reg. v. Liverpool (Mayor, &c.),

The great leading principle of these cases of exemption from rate is, that when that person who must be deemed the actual occupier, is merely a trustee for others, and is prevented by the law from deriving any benefit whatever from the occupation, he cannot be considered as the occupier for the purpose of being rated, the act of 43 El. plainly supposing both control over the property and the power of enjoying it (a). Accordingly, where guardians of the poor hired premises out of their district for the use of their poor, and made no other use of them than employing their paupers there, they were held rateable as occupiers to the poor of the parish in which the premises stood, it being immaterial whether such occupation could produce profits to the guardians individually or not (b). For though the maintenance of the poor is a public purpose, their maintenance in a particular district is a burden on that district only, and the most beneficial mode of relieving its poor is an advantage to the guardians (c). Again, where the guardians of a union, who are incorporated by statute, had erected their workhouse, under the new poor law, in one of the parishes forming the union, it was held similarly rateable to the poor of that parish, as being beneficially occupied, and not devoted to a purpose properly "public."

9 Ad. & E. 435; 1 P. & D. 334, S. C. resting on R. v. Liverpool (Inh.), 7 B. & Cr. 61, and R. v. Weaver Navigation Trustees, 7 B. & Cr. 70, n. (c); Reg. v. Exminster (Inh.), 12 Ad. & E. 2, S. P., but see 4 & 5 Vict. c. 48, for rating corporate property in every case except it is in a parish wholly situate within the boundaries of a borough in which the poor are relieved by one entire poor's rate (s. 1.) By s. 2 the corporations are to be deemed beneficial occupiers.

A county hall and courts of justice, with lodgings for the judges and other buildings, paid for out of the county rates, were vested by a local act in the county justices on trust to permit the courts of assize, sessions, &c. to be held, and the lodgings to be used for the purposes designed. A portion of the magistrates attending the sessions on those occasions, dined and slept at the above lodgings, using the county plate and furniture, without paying for their use, but consuming their own provisions and wine. The sheriff paid 1407. in the year to the county treasurer for the use of the lodgings by the judges; and it was held, that as the buildings were vested in the justices of the county at large for public purposes only, an occupation by

individuals of them for their own conveni'nce did not make the whole body rateable as beneficial occupiers, they not having any corporate character, Reg. v. Worcestershire (Justices), 3 P. & D. 8; 11 Ad. & E. 57.

(a) Per Lord Denman, in delivering the judgment of the court in Reg. v. Wallingford Union, 10 Ad. & E. 268; 2 P. & D. 226, 232, S. C.

(b) Bristol Poor (Governors of) v. Wait, 3 Ad. & Ell. 1. Quite different from Reg. v. Shepherd, 1 Q. B. 170. S. C. per Coleridge, J., where a gaoler matrons, and turnkeys, compelled to live always within a prison walls with nothing more provided for them than was necessary for their convenient accommodation with respect to the objects for which they were placed in the prison, were held not rateable for their houses or for gardens of which they had no use exclusive of prisoners, and the like as to a lodging and workrooms of the prison.

(c) See Lord Denman's comments on Bristol Poor (Governors) v. Wait, in 10 Ad. & E. 269; 2 P. & D. 233; and same principle acted on in Reg. v. Taunton Market (Trustees), 1 New Sess. Cas. 543, Hil. 1845.