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by the company's act of incorporation, while others in addition hire of the company steam power and make use of its landing places, &c., paying an additional compensation for the same.(m) In both cases the inquiry is the same: what is the value of the occupation, from whatever source derived; whether, as in the former case, simply from the carriage of goods and passengers; or, as in the latter, both from that source and also in addition from allowing others to carry goods and passengers along the line, &c. (n) In neither case can the profits of trade, as such, be brought into the rate; but if the ability to carry on, or to permit others to carry on, a gainful trade on the railway adds to the value of the railway and works, that value cannot be excluded, merely because it is referable to the trade. (n)

198. An argument adverse to this view of the rateability of railways has indeed been attempted to be drawn from the clauses usually inserted in railway acts, directing under severe penalties an account of tolls to be kept for the benefit of the overseers of the poor; a provision, it has been urged, which is utterly without an object, unless the tolls alone are the fund with which the overseers have to do. Unquestionably it must be allowed that the clauses in question evidence an intention in the framers of the act to limit the rateability of railways to the tolls only; and it is in order to effectuate the working of this mode of calculating the assessment of railway property that they are inserted. But still there is nothing in this strong enough to countervail the general principles of law relative to the rating of realty,

(m) Sea ante, p. 155, n. (1).

(u) Reg. v. Grand Junction Railway Company, ubi supra.

or to prevent their application to the rating of the property of a railway company in their occupation; considering more especially the nature of a railway act, which in questions of intention must not be dealt with exactly as if it were a public general act, but rather as a mode of carrying into effect a bargain between certain individuals and the public.(0)

199. Secondly. As to the principle on which the rate is to be distributed among the different portions of the line lying in different parishes. As a general rule then the subject-matter of the rate in any particular parish is the beneficial occupation of the land there, and there cannot be drawn into the rate the value of the occupation of buildings, &c. elsewhere; still as it is on the value in the parish, however occasioned, that the rate is to be imposed, it cannot be allowed to strike off any portion of such value, because it would not have existed but for the occupation of buildings, &c. elsewhere and in another parish; it exists and in the parish, and therefore cannot escape the rate there. (p)

200. The value of the occupation in the particular parish being the proper subject of the rate in such parish, it follows that, as a general rule, the proper mode of apportioning the rate among the various parishes along the line of railway is not by a mileage division, which assumes the profits to arise equally throughout the whole line, but according to the actual earnings in each parish. (q) But if in a particular

(0) Reg. v. The London and South Western Railway Company, ubi supra.

(p) Judgment of Lord Denman, C. J., in Reg. v. The London and South Western Railway Company, ubi supra.

(q) Reg. v. London and South Western Railway Company, ubi supra.

case both parties choose to agree on adopting the former principle, it is of course open to them to do so. (r)

201. Secondly. OF VARIATIONS IN PRINCIPLE OF RATING BY STATUTE. Instead of leaving a railway under the operation of the general law, the legislature may provide that it shall be rated upon a principle of its own; as, for instance, if an act were to direct that the tolls should not be subject to rates, but that the lands, buildings, &c. of the company should be rated in the same proportion as the adjacent lands, &c., were for the time being, and as the lands and buildings of the company would have been rateable in case they had continued in their former state, and not been used for the purposes of the undertaking. Under such a provision the property of the company ought, it seems, to be rated at the value which the adjacent lands, &c., bear at the time of the rate, the intention of the legislature being not to exclude all improvement in value, but simply the additional value arising from the tolls, &c. (s)

202. TITHE RENT-CHARGE. In like manner the company are liable to the payment of all tithe rentcharges charged upon lands taken for the purposes of a railway, and may be distrained on for the same when they are suffered to fall in arrear. (t)

203. Where land enjoys an EXEMPTION from certain burdens by virtue of a particular statute, whether or not it loses that exemption by being con

(r) Reg. v. Grand Junction Railway Company, 22 Law Jour. Mag. Ca. 94; S. C. 4 A. & E. N. S. 18; 4 Railw. Cas. 1.

(8) Reg. v. The Monmouthshire Canal Company, 3 A. & E. 619. (1) See remedy given in such case by statute 7 & 8 Vict. c. 85, sect. 22, Appendix.

verted into a railway, must depend on the nature and purport of the exemption; viz. whether it is a local exemption applying to the land itself, or whether it depends on the land retaining a particular character, and therefore ceasing when the land loses that character by being applied to the purposes of a railway.

By a paving act all hereditaments within a particular city were made liable to rates, except a messuage or dwelling house, together with the barns, stables, outhouses and grounds thereunto belonging, situate, &c., and then in the occupation of S. T., called B. Farm. A piece of land forming a portion of those grounds having been taken by a railway company, and a railway made over it, it was held nevertheless not to lose its exemption from rateability by thus ceasing to be occupied for farming purposes. (u)

SUB-SECT. 6. Of the Liabilities of a Railway

I. Of Liabilities on Contracts.

II. Of Liabilites in Tort.

In deter

20. I. Of liabilities on contracts. mining the liability of a railway company upon a contract, there are three points to be considered, 1st, whether the contract is one that the company is competent to conclude; 2nd, whether it is concluded in such a manner as to operate as the con

(u) Todd v. London and South Western Railway Company, 8 Scott's N. R. 56; S. C. 7 M. & Gr. 366.

tract of the company; 3rd, what are its nature and effects?

The first point having been already fully considered in a former part of the work, (a) it is proposed at once to pass to the consideration of the second.

205. 2ndly, Through what organs, and with what forms, a railway company must in general act, so that what it does may operate as the public act of the company, has been already considered. (b) From the principles there laid down, it may easily be deduced in what manner a contract must be concluded to be

binding on the company. There are, however, certain cases which may perhaps be considered as constituting exceptions to the above rules, and where a contract may still be enforced against a company, though not concluded under the common seal, or under the hands of the requisite number of directors. These cases in general rest on necessity, or on an urgent expediency amounting almost to necessity; as for instance, wherever to hold the rule applicable would occasion great inconvenience, or tend to defeat the object for which the corporation is created. Hence contracts of frequent occurrence, or such as are too insignificant to be worth the trouble of affixing the common seal, &c., or necessary to the very existence of the corporation, or to the management of its corporate concerns, or which fall within the very purpose and scope of its incorporation, may perhaps be taken to constitute established exceptions. (c)

(a) See ante, pp. 81, 82.
(b) See ante, p. 70, et seq.
(c) See ante, p. 137, n. (g).

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