THE QUEEN V. VAUGHAN. On the 16th of March, 1868, the company's contractor entered on the skittle ground, and began to pull down the shed without any notice to or consent of Furber, and he accordingly commenced an action and obtained an injunction on the 18th of March. On the 28th of March the company served a summons on Furber to appear before a police magistrate for the purpose of the magistrate hearing and determining Furber's claim to compensation, under 8 Vict. c. 18, s. 121 (1), which by s. 84 of the company's Act was expressly applied to lands taken under their Act. On the same day the company served a notice on Furber that they required possession of the skittle ground, shed, and yard. On the 2nd of April Furber gave notice to the company to take the whole of his premises, and at the hearing, on the 20th of April, it was agreed that the summons should be amended so as to include the whole. The summons was adjourned, and Furber attended at the hearing of the adjourned summons on the 20th of April, and deposed that "the net profit of his business as a publican for some time previously and up to the month of June, 1865, amounted to 4907. per annum; and that in consequence of the execution of the works of the company in destroying the neighbourhood near to and surrounding the house, by the demolition and destruction of the adjoining houses and otherwise, his net profits in the years 1866, 1867, and the year 1868 up to the said 20th of April, had diminished to a net profit of not more than 2007. per annum." Some discussion ensued before the magistrate as to the extent of the right of Furber to compensation; and the hearing being again adjourned, the parties again attended before the magistrate, when the following was submitted to him in writing on behalf of Furber: "That the compensation to be paid (1) 8 Vict. c. 18, s. 121:-" If any such lands shall be in the possession of any person having no greater interest therein than as tenant for a year, or from year to year, and if such person be required to give up possession of any lands so occupied by him before the expiration of his term or interest therein, he shall be entitled to compensation for the value of his unexpired term or interest in such lands, and for any just allowance which ought to be made to him by an incoming tenant, and for any loss or injury he may sustain, or if a part only of such lands be required, compensation for the damage done to him in his tenancy by severing the lands held by him, or otherwise injuriously affecting the same; and the amount of such compensation shall be determined by two justices, in case the parties differ about the same; and upon payment or tender of the amount of such compensation, all such persons shall respectively deliver up to the promoters of the undertaking, or to the person appointed by them to take possession thereof, any such lands in their possession required for the purposes of the special Act." for the value of his interest in the premises, such as it was and would have remained but for the works of the company, ought to be assessed under the following heads:-1. For the value of his interest in the premises at the present time, such as incoming tenant would give him, 3501. 2. For the depreciation in value of such interest caused by the company's works having reduced the custom of the house from a profit of 4951. a year to 2007. a year, 3851. 3. For the loss of trade profit up to the present time from the commencement of the works, about two and a half years, 7007. 4. Value of fixtures and trade utensils and furniture to be paid for by an incoming tenant. 5. Value of stock to be paid for by an incoming tenant. 6. Costs. These last three items to be disposed of as agreed on." On behalf of the company it was contended that the magistrate ought not to allow the loss for trade profits. The magistrate on the 29th of April gave a judgment in writing, by which he determined that "the compensation to which Furber is entitled, in respect of compensation for the value of the unexpired term and interest in the said Black Bull public-house, yard, shed, and skittle ground, and for allowance, which ought justly to be made to him by an incoming tenant for goodwill and trade fittings and fixtures, and for the licences of the said public-house, and for the loss in respect of the depreciated value of furniture therein, amounted on the whole to the sum of 8371. 18s.," and he ordered that sum, together with 1617. 4s. 10d. for costs, to be paid by the company. The trade fixtures and fittings were valued at 1737. 10s., which sum was included in the above sum of 8377. 18s. The injunction was dissolved on payment of the said sum of 8377. 18s, and 1617. 4s. 10d., without prejudice to any further claim. Whereupon a rule was obtained calling on James Vaughan, Esq., the magistrate, and the company, to shew cause why the magistrate should not assess the amount of compensation to be paid by the company to Furber "in respect of the damage done to his interest in the premises by reason of the execution of the works of the company, and resulting in a loss of trade profits up to the 29th of April, 1868, from the commencement of the works, amounting to the sum of 700!.” Hawkins, Q.C., shewed cause. The item of claim disallowed is clearly inadmissible. The case is governed by Ricket v. Metropolitan Railway Company (Law Rep. 2 H. L. 175), and indeed is a stronger case, as there is here no road blocked up, and no interruption of the thoroughfare to the claimant's house, but simply what he calls a destruction of the neighbourhood, by the pulling down of houses; this the company might lawfully have done without statutory powers, and no action could have been brought against them; THE QUEEN v. VAUGHAN. and therefore the damage is not the subject of compensation: New River Company v. Johnson (2 E. & E. 435; 29 L. J. (M.C.) 93); Rex v. London Dock Company (5 A. & E. 163). The case does not come within the distinction taken by Crompton, J, in the case of Stockport, Timperley, and Altringham Railway Company (33 L. J. (Q.B.) 251, 253). J. J. Aston, in support of the rule. If there was any doubt as to the legality of the claim, the magistrate ought to have assessed the compensation, leaving the legality to be afterwards contested in an action. The company were bound to take the land after the six months had elapsed: Morgan v. Metropolitan Railway Company (Law Rep. 3 C. P. 553); and they are therefore liable for the consequence of their laches. [COCKBURN, C.J. I do not see how that case makes in favour of the claimant.] In Ricket v. Metropolitan Railway Company (Law Rep. 2 H. L. 175) (from the decision in which Lord Westbury dissented), no land of the claimant was taken; and that is the very distinction taken by Crompton, J., in the case of Stockport, Timperley, and Attringham Railway Company (33 L. J. (Q.B.) 251, 253), that where land is taken the owner is entitled to compensation in respect of any injury caused by the works. The terms of s. 121 of 8 Vict. c. 18, are that the tenant from year to year shall be entitled to compensation for " any loss or injury." Reg. v. Stone (Law Rep. 1 Q. B. 529) shews that a notice to treat is not equivalent to requiring possession; here the claimant was not required to give up possession till March, 1868, and he therefore had full right to carry on his business in the meantime. [LUSH, J. In addition to the notice to treat, there was the notice under the special Act, that the company would require the premises at the end of six months.] The COCKBURN, C.J. I am clearly of opinion that this rule must be discharged. tenant was entitled, on the property being taken by the company, to compensation, but entitled only to compensation assessed according to the profit he was then making by carrying on his business on the premises; but as soon as the company acquired the right of possession in the property the tenant's interest ceased; and if they had taken possession, his business and profit must have ceased also. It is quite clear the tenant cannot ask for compensation because the neighbouring property has been taken. The company might have done this by voluntary agreement quite independently of any statutable powers, and so destroyed the custom of the public-house, and no action could have been maintained by him for the loss, inasmuch as no injury or trespass was done to him; consequently he could not have claimed compensation for this description of loss. This is an item of compensation not contemplated by the statute. The only ground on which the claim could be made with any show of reason is, that the company, instead of taking the premises when they ought to have taken them, and having the compensation at once assessed upon the profits the claimant was then making, allowed the matter to stand over for two years. But so does the claimant; he might have applied to a court of law, and insisted upon the company proceeding with the purchase at the end of the six months, as was held in Morgan v. Metropolitan Railway Company (Law Rep. 3 C. P. 553). Instead of doing this, he holds by, and then claims, not only compensation for the value of his interest in the premises and goodwill, but also in respect of the depreciation in his profits during the two years since the company should have taken possession, caused by the works of the railway and the pulling down of the neighbouring houses. He cannot claim both the value of his interest and goodwill in the premises at the time the company gave him notice, and also for depreciation in the value of such interest caused by the company's works, and the consequent loss of profits; the latter was the result of his own act, for it was his own fault that he continued to carry on the business on the premises after the six months had expired. It is quite clear therefore that the magistrate was bound to exclude this item, not only on the construction of the Lands Clauses Consolidation Act, but also with regard to the circumstances of the case. The rule must therefore be discharged. 1868. [4 Q. B. 9.] NO. 4, GRANT, APPELLANT TUE INCALOAD FOR The corporation of Oxford are the owners of the soil of the bed of the river Isis, which is subject to the control of the conservators of the river Thames, and is a public highway. The University Boat Club are possessed of a barge which is moored to two posts fixed to the soil, by means of two iron rings which are attached to the barge, and pass loosely round the posts so as to allow the barge to rise and fall with the water of the river; and sometimes, when the water is very low, the barge rests on the soil; the barge, though capable of being moved, is never, in fact, moved from its station. The posts were driven into the soil more than twenty years ago, and have since been so used by the boat club, but without the licence of the corporation or of any one else. There was no evidence by whom or by whose authority the posts had been first placed, and no rent had ever been paid by any one for their use. The University Boat Club having been assessed to general district THE DISTRICT OF OXFORD, rates in respect of these posts and the barge attached: Held, that on these facts there was no proof of occupation, as of right, of the posts by the University Boat Club, and therefore that they were not rateable. CASE stated, on appeal against two district rates, under 12 & 13 Vict. c. 45, s. 11. 1. The appellant is the secretary to the Oxford University Boat Club, and is for the purpose of this case to be taken as the person liable in respect of the subject of the rates, if the club or any member of it is in the opinion of the Court liable to be so rated. The respondents are the Oxford Local Board, duly empowered to make such rates. 2. The two rates were two general district rates at 1s. 6d. and 8d. in the pound respectively, made by the respondents under the provisions of the Local Government Supplemental Act, 1865, and of the Act incorporated therewith, to which rates the club was assessed as follows:- 3. The bed of the river Isis, of which the mayor and corporation of the city of Oxford are seised in fee, forms part of the district of the Oxford Local Board. 4. The river is a navigable river subject to the control of the conservators of the river Thames, and is a public and common highway over which all the subjects of the Queen have always of right had free passage, navigation, and anchorage, for boats, barges, and other vessels. 5. The freemen of the city of Oxford have of right enjoyed the sole and exclusive right of fishing in the river so far as it flows over the bed of the river within the district of the local board, and of using for that purpose boats, barges, and other vessels. 6. The Oxford University Boat Club is composed of members of the University of Oxford, and is possessed of a barge or house boat which floats on the river, and is moored at a distance of about thirty feet from the bank of the river by means of two iron rings, which are fixed to the barge and pass loosely Name or Situation of the Property. On the river Isis, adjoining Christchurch meadow. and moveably round two solid fixed posts. The posts are driven into the bed of the river, and are of such a diameter as to allow the rings to pass freely up and down, and thus to allow the barge to rise and fall with the water of the river. In some very dry seasons, and when the water is low, though the bed of the river remains covered with water, yet the barge rests on the bed of the river occasionally for a short time. The barge, though capable of being moved, is never in fact moved from its station. 7. Between the barge and the bank of the river are four other posts driven into the bed of the river, two of which posts are at a short distance from the barge, and the other two are at a short distance from the bank, and the club is also possessed of a moveable frame of boards joined together, which is laid down on the top of the four posts, but is not fixed to the posts nor to the barge or bank, neither does the wooden frame touch the bank or the barge, but it forms with the posts the gangway from GRANT v. OXFORD LOCAL BOARD. the barge to the bank, from which the approach is to the barge. The bank is the property of the Dean and Chapter of Christ Church. 8. All the posts were so driven into the bed of the river more than twenty years : before the making of the rates, for the purpose of being used as aforesaid, and have remained so driven in and been so used, but without the leave or licence of the mayor and corporation of the city of Oxford or of any other body corporate or person whomsoever, and no payment of rent or other acknowledgment has ever been made by the club or any member, either to the mayor and corporation of the city of Oxford or to any other person. 9. The club is also possessed of several boats, which the members of the club use on the river, and, beside the facts hereinafter stated, the barge is used to enable the members of the club to get conveniently into and out of their boats, and the members of the club are in the habit of stepping from the bank on to the wooden frame and walking along it, and then stepping off the wooden frame on to their barge, as one way of access to the barge, there being no other way of access from either bank of the river to the barge except by boat; but the members of the club have no legal right, title, or interest in the soil of the bank, or to pass or repass over the same. 10. The barge was built, and is maintained by, the subscriptions of the members of the club; it is roofed over and forms one room, with small partitions at one end for use as dressing-rooms; the rooms are lighted by windows in the side of the barge above the water line. No person ever sleeps or resides in the barge, but the same is used in the daytime only by the members for the time being of the club, as a way of getting into and out of their boats, and for the purpose of putting on and taking off their boatingdresses, and for reading and other amusement at the free will and pleasure of the members of the club respectively. The barge is regularly supplied with daily and other newspapers and reviews, and produces no pecuniary profit or benefit whatever to the club or to any member thereof. 11. No house, building, land, tenement, or hereditament is or ever has been occupied, held, or used, in connection or conjunction with the barge, unless the posts driven into the bed of the river can be considered such. 12. The club is not, nor is any member thereof, the owner or occupier of any such post, or land, or landing stage, platform, floating barge, house boat, or other things connected therewith or with the soil under the river, as in the rates are mentioned, or of any rateable property whatsoever, unless and so far only as the facts hereinbefore stated may, in the opinion of the Court, make them such owner or occupier of the whole or any part thereof, and liable to be rated in respect of such ownership or occupation. 13. No such barge, landing stage, platform, post, or other thing connected therewith as mentioned in the rates, have or has at any time been assessed to rates for the relief of the poor, nor has any part of the property in this case above mentioned been at any time taxed, rated, or assessed in any manner or for any purpose whatsoever. The appellant contends-1. That the property rated is not liable to be rated or assessed. 2. That the club is not the owner or occupier of the land or soil, or of anything connected therewith. 3. That there is not, and cannot be, any such occupation or right to occupy the posts, landing stage, platform, floating barge, house boat, and other things connected therewith, or any part thereof so standing and being in and upon the highway, as to render the same ratcable property or the club liable to be rated in respect thereof. The question for the opinion of the Court is, whether the club, or any member thereof, is liable upon the above statement to be rated for the whole or any, and, if any, what portion of the property described in the rates. Nov. 11. Maule, Q.C. (H. R. Clarke and Davenport with him), for the appellant, contended that the University Boat Club had no property in the soil of the bed of the river or in the post, and that the mere fact of attaching their boat to the post did not make them rateable: Williams v. Jones (12 East, 346); Watkins v. Overseers of Milton-next-Gravesend (Law Rep. 3 Q. B. 350). Nov. 14. Mellish, Q.C. (J. O. Griffits with him), for the respondents, contended that the boat club having used the post for twenty years could not take advantage of their own wrong, and say they were trespassers and not occupiers, and that to hold that they were not rateable would be inconsistent with all the authorities: Reg. v. Leith (1 E. & B. 121; 21 L. J. (M.C.) 119); Reg. v. Forest (8 E. & B. 890; 27 L. J. (M.C.) 96); Electric Telegraph Company v. Overseers of Salford (11 Ex. 181; 24 L. J. (M.C.) 146); Reg. v. Morrison (1 E. & B. 150; 22 L. J. (M.C.) 14). COCKBURN, C.J. I think our judgment should be for the appellant, and I rest my opinion upon extremely narrow grounds. It does not appear to me to be necessary to consider the decisions upon this subject; as I do not think any of the cases are in point, because all the decisions in which matters like the present have been held to be rateable rest upon occupation. A rate can only be made on an occupier. It is not necessary in the present case to decide whether a person occupying a post or any other form of per THE QUEEN V. SCULCOATES. manent landing place in a river, and attaching barges thereto, and allowing other persons for profit to attach barges thereto, is or is not rateable. It appears to me in this case the proof of occupation altogether fails; and it is, therefore, unnecessary to consider whether, if it had been established that the boat club were occupiers, it would follow that this particular description of landing place and means of access from the shore to the barge, and the barge with it, were rateable or not; it is unnecessary to decide that. It seems to me that there is nothing to shew that the posts are not at the present moment in the occupation of the owners of the soil. The posts have been permanently fixed in the soil; how they came to be fixed, by whom, or by what authority, does not appear; whether it was by permission of the owners of the soil or not, we do not know, or whether it was a mere act of encroachment and trespass. But there is nothing to satisfy me that the University Boat Club have the exclusive enjoyment of these posts in them. I see nothing which at all satisfies me that if any other person, navigating that part of the river, were minded to treat these posts as a mere mooring place in the bed of the river for the general convenience and accommodation of the public, and came and attached other barges or vessels to one of these posts, or did any other act which might interfere with the assumed enjoyment or occupation of these posts on the part of the boat club, the boat club would have a remedy by action of trespass or otherwise against the persons so interfering with this assumed right on their part. There does not seem to be any exclusive occupation in the club, and inasmuch as exclusive occupation must necessarily be the foundation of their rateability, it seems to me it would be wrong in this case to say that this property in their hands is capable of being rated. HANNEN, J. I am of the same opinion. The substance of the thing is this: that the University Boat Club occupy a floating boat; the particular place where it is is a mere accident, and has nothing to do with the substantial enjoyment which they have of that boat; it is simply because it is not worth any one's while to require them to move away from that place that they have continued in the same place for a good number of years. Then it is said that they occupied the posts, and in that sense it is argued that the attachment of the boat to the posts is ancillary to the enjoyment and occupation of the posts. It is obvious that nothing can be more artificial than such reasoning, and I do not think it is sound, because I think that the use made of these posts is not changed from the first hour when the boat was tied to it, in whatever way it may have been, whether by rope or by a chain; the thing became more permanent from nobody thinking it necessary to require the boat to be removed away from its place. By fixing rings round them, the character of the use of the posts seems to me to remain just the same as it was at first: it is simply a means by which a floating boat is attached to a projection from the soil of the river. It seems to me on the facts stated no exclusive right to these posts has been obtained, and that anybody else may come and tie their boats to the posts in the same way as this University boat is attached to them. For these reasons I think that our judgment must be for the appellant. HAYES, J. I entirely agree in the plain, clear, and concise view which has been taken by my Lord and my Brother Hannen, that judgment must be given for the appellant. I think the cases have gone quite far enough in deciding that things which are substantially chattels are rateable as real property. This boat is a chattel, and it would certainly be a strong thing to say that it could be rated as real property, such as a tenement or an hereditament, unless there is a clear case of occupation-an occupation of something which is firmly and perma nently affixed or attached to the soil itself; therefore it seems to me there is no ground for this rating. Judgment for the appellant. Attorneys for appellant: Davies, Son, Campbell, & Reeves. Attorney for respondents: Philpot. Νου. 18, 1868. THE QUEEN, ON THE PROSECUTION OF THE OVERSEERS OF ST. MARY, ISLINGTON, Poor-Suspended Order of Removal-Expenses is unable to travel through sickness, |