1832.

The KING against The AIRE and CALDER Navigation.

line of the ascent. So, in this case, the dam may be considered as an engine calculated to assist vessels in the ascent of an inclined plane, namely, the channel of the river, by holding up the water; and it is rateable like the machine before alluded to, for all the profits earned upon that line of ascent to which the benefit extends. It is clear from Rex v. The Mersey and Irwell Navigation (a), that dams, if erected on the company's own land, would be rateable in respect of something; that must be in respect of the advantage and profit derived from the holding back of the water; and no distinction can justly be drawn between the first yard of water so held back, and the rest of the nine thousand eight hundred and twenty-three, but the rate must be calculated upon the benefit derived from the whole body of water which is supported by the same dam.

Sir James Scarlett, F. Pollock, Milner, and Wightman contra. This is an attempt to evade the former decision in Rex v. The Aire and Calder Navigation Company (b), by imposing that rate on the dam which could not be laid upon the navigation. According to the argument on the other side, the fields adjoining a canal might be rated, because if it were not for the banks the water would disperse; and it might be said that a reservoir was rateable for the profits of water distributed from it into different parishes, which is contrary to Rex v. The Corporation of Bath (c) and other cases. Admitting even that the navigation could be rated, still a rate cannot be imposed upon any taxable matter not actually in the parish for which the rate is made. This is not the case

(a) 9 B. & C. 95.

(b) 9 B. & C. 820.

(c) 14 East, 609. of

In

of a lockage toll; nothing becomes due at the dam; it
is no doubt essential to the beneficial occupation of a
property which yields a profit elsewhere, but it is not
the subject-matter which produces that profit. It may
be the sine quâ non, but is not the causa causans.
Rex v. Hogg (a) and Rex v. Bradford (b) the whole
profits arose from the engine and the canteen, which
distinguishes those cases from the present. Dyson v.
Collick (c) does not apply, for the undertakers here
hold the dam as proprietors of the mill, not of the
navigation; and if they brought trespass for an injury
to the dam, it would be in the former capacity. In
Rex v. Thomas (d), where it was held that the under-
takers of a navigation were not rateable for the land
covered with water, in which they had merely an ease-
ment, it was asked by one of the Judges, "Suppose
these proprietors had been owners of the soil, as well as
grantees of the tolls, how would the case have been?"
and the answer given was, that they would not have
been rateable, since the tolls were holden separately
from the soil, and by distinct titles. So here, the pro-
perty which the undertakers have in the soil on the
banks of the river makes no difference as to their
rateability in respect of the navigation and that which
belongs to it. If the dams are a subject of rate at all
as part of the company's works, they must be considered
as rated by the assessment laid upon the canal, to which
they are accessory, and the liability of which is not
disputed.

Lord TENTERDEN C. J. I am of opinion that this rate must be amended by reducing it to the amount

1832.

The KING

against The AIRE and

CALDER Navigation.

(a) 1 T. R. 721.

(c) 5 B. & A. 600.

VOL. III.

(b) 4 M. & S. 317.
(d) 9 B. & C. 114.

L

assessed

assessed upon the cut and lock. This is an attempt to evade the decision of the Court in the former case of Rex v. The Aire and Calder Navigation (a). We there held that the undertakers were not rateable as occupiers of the bed of the river, having merely an easment in it. No rate, then, could be laid upon them for the water of the river made navigable by them; and if so, none could be imposed in respect of the dam; for to rate the dam because it keeps up the water, would be equivalent to rating the water itself. If the water cannot be rated, neither can the dam which holds it up.

LITTLEDALE J. It has been held that the company were not rateable for the river, and I therefore think they are not so for the dam.

TAUNTON J. It has been contended that because the water of this river was holden up and made navigable for 9823 yards by dams, one of which was partly situated in the respondent township, the undertakers might therefore be rated upon this dam for a proportion, at least, of the tolls accruing upon the water so upheld. But I think this is a vicious principle, and at variance with decided cases. It might as well be said that a reservoir which supplies water to a district nine or ten miles in extent, or a lock which acts as a dam, or a steam-engine employed to raise water from a lower to a higher level, is rateable in respect of the whole distance to which water is supplied by any of these contrivances, and the profits accruing from that supply; propositions which cannot now be maintained.

(a) 9 B. & C. 820.

PATTESON

PATTESON J. It is very clear that such a rate as this, if it may be imposed, is in effect the same as rating the water. Suppose this were a canal, it would then be rateable all along the line of navigation, to the parishes through which it passed, and in that case the rate evidently could not be laid upon the dam. Can it then be imposed upon the dam here, because the line of navigation is not rateable? I agree with my Lord that this is merely an attempt to evade the former decision of the Court.

Rate sent back to be amended, by reducing it
from 150l. to 15l. 16s., the amount charge-
able upon the canal and lock.

1832.

The KING against The AIRE and CALDER

Navigation.

The KING against The Inhabitants of the County Saturday, January 21st.

of DERBY.

PRESENTMENT by F. H., justice of peace of the By the statute county of Derby, that a certain common public

bridge upon and over the river Amber, commonly called the Amber Bridge, situate in the parishes of Crick and Duffield, in the county of Derby, in the king's common highway there, leading from the town of Cromford in

of

the county of Derby, towards and unto the town Belper in the same county, used for all the liege sub

jects of the king, with their horses, &c. to pass, &c.

was out of repair. Plea, that the bridge was erected

43 G. 3. c. 59. s. 5. no bridge thereafter to be

built in any county, by or

at the expense of any individual or

private person,

body politic or corporate, shall

be deemed a

county bridge,

unless erected

in a substantial

and commo

dious manner,

under the di

rection or to the satisfaction of the county surveyor, &c.

Trustees appointed by a local turnpike act are individuals or private persons within the meaning of this statute; and, therefore, a bridge erected by such trustees after the passing of the statute, but not under the direction or to the satisfaction of the county surveyor, &c. is not a bridge which the inhabitants of the county are liable to repair.

1832.

The KING against The Inhabit. ants of DERBY.

after the passing of the statute 43 G. 3. c. 59. by certain persons appointed, by virtue of an act of the 57 G. 3. c. xiii., entitled "An act for making and maintaining a turnpike road from the town of Cromford to the town of Belper; and for making a branch of road from and out of the said road near the river Amber, to join the turnpike road at Bull Bridge, all in the county of Derby," trustees for making, maintaining, repairing, and otherwise improving certain roads in the last-mentioned act specified, and for otherwise carrying it and all the matters and things therein contained into full and complete execution and effect; and that the said bridge was so erected by the trustees by virtue of certain powers vested in them by that act; and that the same was not erected in a substantial and commodious manner, under the direction or to the satisfaction of the county surveyor, or of any person appointed by the justices of the peace of the said county, at their general quarter sessions assembled, according to the form of the statute, &c. General demurrer and joinder. The case was now argued by

Fynes Clinton in support of the demurrer. The inhabitants of the county are bound to repair the bridge in question, unless they be exempted from that bur den by statute, because it is established that, even if a private person build a bridge, and it becomes useful to the public, the county is liable to repair it; and it was decided in Rex v. The West Riding of Yorkshire (a), that where the trustees of a turnpike road built a bridge which was of general use, and no fund was specially

(a) 2 East, 342.

provided