V.C. G.]

prayer.

In an affidavit of Mr. Nelson, the city solicitor, made in opposition to the motion, he stated that, in his opinion, many of the claims of the plaintiff's under-tenants were fraudulent, and that in his judgment and belief justice could not be done between the public, who would have to pay the costs of the improvements, and the claimants, unless one jury had charge of the whole matter. He also stated as follows:

I have been informed, and believe, that formerly it was the invariable practice in the city of London (which in cases where property is taken otherwise than by agreement acts under a special Act of its own, differing most materially from the Lands Clauses Consolidation Act 1845), to include all the interests in a house in one precept, and although no case has recently arisen, until this one, to render such a course necessary, I humbly submit that the precept mentioned in the bill is perfectly lawful, and that the circumstances amply justify the use of such a power.

[V.C. G. in Her Majesty's courts at Westminster are directed to be drawn, and in case a sufficient number of jurymen shall not appear at the time and place appointed as aforesaid, some person, to be by the said court appointed, shall return other substantial and indifferent men of the bystanders or others who can be speedily procured to attend that service, being so

qualified as aforesaid to make up the said jury to the number

of twelve, and all parties concerned shall and may have their lawful challenges against any of the said jurymen, but shall not be at liberty to challenge the array. And the said court of mayor and aldermen are hereby authorised and empowered from time to time as occasion shall require, by precept to summon and call before them every person whomsoever who shall be thought proper and necessary to be examined as a witness on his oath touching or concerning the premises. And the said court of mayor and alderman if they think fit, shall and may on the application of either party. likewise authorise the said jury, or any three or more of them, either before or after they shall be sworn to view the place and premises in question in such manner as they shall direct. And the said court of mayor and aldermen shall have power to adjourn such meeting from day to day as occasion shall require, and so to command such jury, witnesses and parties to attend until all such affairs for which they were summoned shall be concluded. And the said jury upon their oaths (which oaths, as well as the oaths of such persons which shall be called upon to give evidence, the said court of mayor and aldermen are hereby empowered and required to administer) shall inquire of, assess, and ascertain and give a verdict of the sum of money to be paid for the purchase of, or satisfaction, or recompense for either the entirety

20. And be it enacted, that on or before the expiration of one month next after notice in writing from the mayor, aldermen, and commons, or their agent duly authorised, of the intention to take or use any land for the purposes of this Act, shall have been so given, left, or affixed as hereinbefore mentioned, every person interested in or entitled to, or by this Act enabled to, sell and convey any such lands, or to accept and receive satisfaction or recompense for the value of the same, or any estate, share, or interest therein or charge thereon, or having or claiming to be entitled to any compensation for any improvements, or for fixtures, or for any injury or damage sustained on account of the execution of this Act, shall deliver at the office of the comptroller of the chamber of the said city a statement in writing of the particulars of the estate, share, interest, or charge which he may claim to be entitled to, or to be authorised to receive satisfaction or recompence for, and of any improvement, and of the fixtures, and of the injury or damage sustained by him, and of the amount of the sum of money which he may expect and be willing to receive in satisfaction or recompence for the value of such estate, share, interest, or charge, and also the amount of the sum which he may expect and be willing to receive as compensation for such improvements, fixtures, and for such injury or damage respectively.

21. And be it enacted, that if any person interested in or entitled to or by this Act enabled to sell and convey any lands described in the schedule to this Act annexed, or any share, estate, or interest therein or charge thereon as aforesaid, or any occupier thereof, sustaining such loss, injury, or damage as aforesaid for and on his part, for or on the part of his cestui que trust or ward, or of any other person as aforesaid, shall refuse to accept such purchase-money, satisfaction or recompense or other compensation as shall be offered by the mayor, aldermen, and commons, or any person authorised by them on their behalf, or if any person interested in or entitled to,or by this Act enabled to sell and convey any such lands as aforesaid shall, upon such notice in writing as herein before is mentioned having been so given, left, or affixed as aforesaid, for the space of one month next after such notice neglect or refuse to send in a statement of the particulars of his claim in respect of any lands, or shall neglect or refuse to treat or agree, or shall not agree, or by reason of disability cannot agree with the mayor, aldermen, and commons, or with any person authorised by them, for the sale or conveyance of such lands or any share, estate, and interest therein, or charge thereon, who shall not produce and evince and clear title to the premises he is in possession of, or to the interest he shall claim therein, to the satisfaction of the mayor, aldermen, and commons, or of the person so authorised by them, then and in every or any such case the lord mayor of the said city for the time being shall be, and he is thereby empowered thereupon or at any time thereafter, to issue a warrant or precept under his

hand and seal of office to the sheriffs of the city of London, commanding such sheriffs to summon, return, and impanel a jury, and such sheriffs are hereby authorised and required accordingly to summon, return, and impanel forty-eight substantial and indifferent persons qualified to serve on juries, and the persons are so to be summoned, returned, and impanelled as aforesaid, are hereby required to come and appear before the court of mayor and aldermen of the city of London, to be holden in the outer chamber of the Guildhall of the said city, according to the custom of the said city, at such time and place as in such warrant or precept shall be directed or appointed, and to attend the said court from day to day until discharged; and out of such persons so to be summoned, returned, and impanelled, a jury of twelve men shall be drawn in such manner as juries for the trial of issues joined

charge thereon as in such warrant or precept shall be directed, and the compensation which shall be made in respect of any improvements, or injury, or damage whatsoever, to be lost or sustained as aforesaid to any person as in such warrant or precept shall be direted; and the said court of mayor and aldermen shall give judgment for such purchase-money, satisfaction, and recompense, or compensation so to be assessed; which said verdict and the said judgment thereupon shall be binding and conclusive to all intents and purposes upon all persons whomsoever; provided that in such inquiry the person claiming compensation shall always be deemed to be the plaintiff, and entitled to the same rights and privileges as plaintiffs in actions at law are entitled to; provided als› that not less than fourteen days' notice in writing of the bour or time and place at which such jury are so required to be returned and meet, is to be given to the principal officer, or left at the principal office of business of the corporation, or to the person entitled, or claiming so to be, by leaving such notica at his usual or last place of abode or business, or with some tenant or occupier of some of the said lands, or by affixing the same upon the same premises.

Druce, Q. C. and G. V. Yool now appeared for the plaintiff in support of the motion.

A. E. Miller, for the corporation.

The following authorities were cited.
Taylor v. Clemson, 11 Cl. & Fin. 610;
The London and North-Western Railway Company v.
Smith, 1 Mac. & G. 216;

Maunsell v. Midland Great Western (Ireland) Rail-
way Company, 8 L. T. Rep. N. 347, 826; 1 H. & M.
130;

The VICE-CHANCELLOR.-I certainly am not about to proceed in this case upon any such sup position as that the case of the London and North Western Railway Company v. Smith, 1 Mac. & G. 216, is law. It is quite clear that the case was dissented from by Lord Truro, by the late Lord Justice Turner, and by Lord Cranworth, in the plainest possible language. I apprehend the state of the law to be simply this, that as long as bodies invested with powers such as the Corporation of London are invested with are proceeding within the limits, and in accordance Parliament, and proceeding bona fide, this court with the power conferred on them by the Act of cannot interfere. On the other hand, if in any respect they are exceeding their powers, or are not proceeding in accordance with them, this court, as a matter of course, will grant the injunction. being so, the only question to decide is, whether this body is or is not intending to proceed, or has proceeded, in accordance with the powers conferred on them by the Act, or whether it is exceeding, or has exceeded, its powers. The facts of the case are extremely simple. We have to deal with leasehold interests only; and I believe, as regards the lease

That

Q. B.]

{Q. B.

A portion of the water is conveyed through the pipes that were put down for the hydraulic engine to feed a steam-pumping engine, which water, after supplying this engine, returns into the natural watercourse. The remainder of the water which flows along the artificial course passes into a pool to supply another steam-pumping engine and to work a waterwheel which winds the ore and refuse out of the mine. Attached to the wheel is a pair of crushers to crush the ore, and also a circular saw which is used to saw timber used on the mine and for other purposes, such as sawing boards for the repair of carts used in the mine, and upon a few occasions as and when required for the repair of the buildings of the farm belonging to the company. After passing over the waterwheel, the water is used to wash and clean the ore in order to make it merchantable, and it then returns into the natural

Whilst the company held the water corn mill before mentioned, they paid 1007. a year for it, and they were rated at 1007. for the mill and paid their rates, but the lease thereof having expired they have now made a fresh arrange ment with the landlord, by which they have given up the mill and pay him 1007. per annum for the flow of water to their mine.

The occupier of the mill-house and lands attached

own the pipes through which the water runs, and they are in the actual possession of them. It cannot even be said that the whole object of the watercourse is for the purpose of working the mine, for it is used also in preparing the ore for smelting, which is not properly a mining operation.

Mellish, Q.C. (with whom was McIntyre) for the appellant.-The stream of water in the present case was originally a natural one. [COCKBURN, C. J.— What the company have done is to make an artificial diversion of a natural watercourse.] With respect to that part of it which is an open watercourse, they cannot in any way be held liable to be rated. The 1007. a year which they pay is simply compensation to the owner of the mill for the right of diverting the old channel. The present case cannot be distinguished from Reg. v. The Overseers of Bil ston. There Holroyd, J. says: "The engine was not profitable but burthensome, except as it respected the mine itself. As it regarded the land, independently of the mine, it was clearly burthensome," and on that ground it was held exempt from rateability. The same reasoning applies here.

Watkin Williams in reply.

to it are now rated at a reduced rateable value consequent on the loss of the flow of the water to the mill.

The assessment committee considered upon the above facts that the company were rateable, and have rated them at 100%.

The opinion of the court is requested whether the company is liable to be rated for the land over which the water flows, and if so, whether to the amount of the agricultural value of the land or to the amount of its enhanced value by reason of its being converted into a watercourse and applied to the purposes above set forth. If the court should be of opinion that the company are liable to be rated, then the said company agree that a judgment, in conformity with such decision and for such amount and for such costs as the court may adjudge, may be entered on motion by the respondents at the sessions next or next but one after such decision shall have been given. If the court be of a contrary opinion, then the respondents agree that a judgment, in conformity with the decision of such court, and for such costs as such court may adjudge, may be entered on motion by the said company at the sessions next or next but one after such decision shall have been given.

Watkin Williams for the respondents.-The company are rateable in respect of the pipes which convey the water, the company being in the exclusive occupation of them. The most recent case dealing with the subject is Reg. v. The West Middlesex Waterworks Company, 28 L. J. 135, M. C., in which the company was held liable to be rated in respect of certain mains and pipes buried in the soil. In Reg. v. The Overseers of Bilston, 5 B. & Cress. 851, the engine for drawing water from the mine was exempted from liability, on the ground that it was part and parcel of the iron mine, which was exempt under 43 Eliz. c. 2. Reg. v. Cunningham, |

liable to be rated on that account. If, however, it had been intended, as one might perhaps gather from the statement, to rate the 100l. which is paid for the right to divert the water from its original course, I agree with Mr. Mellish that that could not properly be done. Then comes the question as to the land itself; and that I think is properly rateable. The value of the land is increased by the watercourse on it, and I think the right way of looking at the matter is this. Suppose the company had not the occupation or the ownership of the land, but had to rent it from an adjoining proprietor: whatever they had to pay him for it would be the actual value of the land, and a rate made on the basis of that value would be correct. Mr. Williams says that must be assumed to have been the basis on which the present rate was made, and there is nothing in the case to negative the supposition. It may be that the true value of the land and of the erections was 100., and if so, a rate made on that basis would be quite proper. I think the rate must be upheld.

BLACKBURN, J.-I quite agree with what my Lord has said. The first question is one of fact-Are the company in the occupation of the watercourse and of the bricks, &c.? If they are occupiers they are properly rateable. If they have merely an easement they would not be rateable. As to the pipes, I am unable to see any distinction between the case with respect to them here and the case of gas and other companies occupying by means of their pipes. But I do not think this question is very material. Then comes the other question, What is the value at which it is to be rated? The contention seems to be that as the water has been carried along this course for the purpose of assisting in the working of a lead mine, which is not itself rateable, the increased value of the land over which it passes is, therefore, not to be taken into account. Reg. v. The

Q. B.]

[Q. B.

6. At the hearing of the said claim before the commissioners at Gloucester aforesaid, the appellant made three claims-first, to 350 putchers at Hope Pill; secondly, to three stop nets at Hope Pill; thirdly, to 130 putchers at Hock Crib, all situated between high and low water mark in the river Severn, and within the manor of Arlingham, as being privileged fixed engines within the meaning of the above statute.

7. The said manor of Arlingham is within, or once formed part of, the great manor or barony of Berkeley, granted by a charter of King Henry II. to Maurice of Berkeley, and it is admitted that several ranks of putchers and stop nets had been proved before the said commissioners to have been legally used from time immemorial at certain places within the great manor of Berkeley, of which, as already stated, the manor of Arlingham was part.

8. In proof of the legality of the putchers and stop nets claimed by the appellant, he gave in evidence a feoffment, dated 20th Nov. 1610, by which the owner of the great manor of Berkeley conveyed the manor of Arlingham (which, as herein before stated, had been part of the manor of Berkeley) to Thomas Yate, through whom the title had passed to the appellant by mesne conveyances. The said feoffment in the parcels described the lands as "all that the manor of Arlingham with its appurtenances, and all the free fishing and several fishing in the river Severn over against and so far as the manor, parish, or village of Arlingham extends. And also all those the liberties and franchises of free fishing," &c.

9. There was no more specific description in such conveyance of a fishery in the Severn as appurtenant to the manor of Arlingham, within which manor the sites of the said fixed engines were.

10. There was no specific mention in any of the documents of title of putchers or stop nets, or other fixed engines in connection with such fishery.

11. At the place where the manor of Arlingham abuts on the left bank of the Severn, the said river is a navigable tidal river or estuary, and is about half a mile wide between high water mark on either side. It was admitted that the manor of Arlingham was bounded on one side by the medium filum aque of the Severn.

12. As to the putchers and stop-nets at Hope Pill (which is higher up the river than Hock Crib), it was also proved by a witness who was sixty years old, who had been lessee of the lord of the manor of the fishing there, and whose father had been lessee from the year 1825, till he himself became lessee, that he remembered the fishery since he was ten years old, that is to say for forty-five years prior to 1861; that putchers and stop-nets were used at Hope Pill on the same sites as at present during the whole of that time, and were there in use when he first knew or could recollect the fishery, and that when he was ten years old one Cooke was tenant of the fishery, but whether Cooke used putchers before that date no evidence was given with respect to the putchers at Hock Crib, a witness who was fifty-seven years of age said, that twenty-five years ago he was for the first time employed at, and knew the fishing there; that there were old stakes then on the same side which he filled up with putchers.

13. The witnesses stated that in 1861 the number of putchers used was at Hope Pill 350, at Hock Crib 100, and there stop-nets at Hope Pill.

14. It was proved that the mode in which

between high and low water mark, double rows of stakes, each stake being about 12ft. long and Sin. thick are driven into holes cut in rock, a depth of from 1 to 2ft., and the rows are in a direction at right angles to the current. By means of these uprights takes partitions are made of sufficient size and depth to contain the putchers which are laid horizontally, and all touching each other, each putcher being kept fixed in its position by means of the stakes and crosspoles. A putcher is a conical or funnel shaped basket made of twenty straight rods fastened together at intervals by four or five hoops of decreasing size, each rod about half an inch or an inch thick and about 5ft. long, and running lengthwise from end to end of the basket. The length or depth of the basket is about 5ft., the diameter about 20in. at the mouth (where one end of each rod is fastened to the largest hoop at intervals of 3in.), and 2in. or 3in. at the other end. The framework is loose or open, and the mouth and end are open, so as to offer as little resistance to the tide as possible. These putchers when put in position lie on their side in tiers three or four deep, and to one who stands in front of them they appear like a honeycomb, the mouths all facing one way, either facing the flood tide or the ebb tide. A rank of putchers means a row consisting of several tiers, the length of the rank varying with the number of the putchers used, and the whole of the stakes and putchers together forming a structure sufficiently stable to resist the action of the tide. A salmon is caught by going into one of the putchers with some force, when its head becomes wedged in the small end of the putcher, and it is kept there fixed till the ebb of the tide allows the fisherman to go and take the fish out. These putchers are fixed annually during such portion of the year as they may be lawfully used to catch salmom, the stakes remaining perma nently. Putchers are only calculated to catch large fish, and not eels, shrimps, or the fry of fish.

15. It was proved that the mode in which the step nets were used was as follows:-A stake is driven into the shore near high-water mark and a rope attached to it, which is run out towards the bed of the estuary nearly at right angles to the line of the shore, and the further end of the rope is fixed to an anchor in the shore. The boats are each attached to this rope, which is used to steady them. The number of boats which may be used on one rope depends on the length of the rope. When the boat is thus steadied by the rope, a net is used in combination with each boat in the following way:-The net is so placed that the body of it lies across and under the boat; the mouth of the net, which is about fifteen feet wide, facing the tide on one side of the boat, and the tail or end of the net stretching under and beyond the other side of the boat. By a combination of poles the mouth of the net is kept a few feet under the surface of the water, and a fisherman, holding a string attached to the tail of the net in his hand, feels when a fish enters the net and immediately jerks the mouth of the net up and out of the water to prevent the escape of the fish, which he then takes out.

16. At the hearing it was contended, on the part of the appellant: (1) That under the above circumstances he had proved, and the commissioners ought to hold that the putchers and stop nets were privi leged under the 24 & 25 Vict. c. 109, sect. 11, which provides that the said section shall not affect any ancient right or mode of fishing exercised at the time of the passing of the Act by virtue of any grant of charter or immemorial usage; and that the com missioners ought to certify to that effect. (2.) That the commissioners were at liberty and ought to presume, and a judge would and ought to have told a jury to find, that there was a right to