The Queen against the London and South Western Railway Company
| Jurisdiction | England & Wales |
| Judgment Date | 04 June 1842 |
| Date | 04 June 1842 |
| Court | Court of the Queen's Bench |
English Reports Citation: 113 E.R. 1246
IN THE COURT OF QUEEN'S BENCH.
S. C. 2 G. & D. 49; 2Railway Cas. 629; 11l. j. M. C. 93; 6 Jur 686. Adopted Great Eastern Railway v. Haughley; 18866, L. R. I. Q B. 683, Appllied Mersey Dock and Harban Board v. Birkenhead Assessement Committee, [1900] 1Q B. 150.
1246 TBE QUEEN V. THE LONDON AND SOUTH 1 Q. B. 858. [558] [The following case, decided iu Trinity term, 1842, is introduced here on account of its immediate practical importance.] the queen against the london and south western eallway company. [Saturday, June 4th, 1842.] By stat. 4 & 5 W. 4, c. Ixxxviii., a railway company were empowered to purchase lands and construct a railway thereon, passing through several parishes, with warehouses, station-houses, &c. ; which they did. The Act also empowered them to take certain tonnage tolls, not exceeding a stated amount, for goods and passengers ; and to provide locomotive engines, and receive such sums for the use thereof as the company should fix, in addition to the tolls ; and, when they themselves carried for their own profit (which a distinct clause enabled them to do), they were to keep a separate account of the tolls which they would have received for the passengers, &c., if they had been carried by other persona ; such account to be open to inspection by the overseers of every parish on the line of railway. The company were empowered to let the tolls. All persons were to have liberty to use the railway with carriages properly constructed, on payment of the tolls, and subject to the company's regulations. Powers were given to the company to approve or disapprove of the carriages and engines to be used by any person on the railway, and to make orders for regulating the passage upon, working, and use of, the railway, and for prevention of nuisances. The company used the railway, &c., according to the Act, carrying passengers and goods, and supplying power by means of locomotive engines, for their own profit : and no other person used it for such purposes. Held, that the company were rateable for their land, improved in value by the profits accruing from the railway, &c., at an amount equal to the rent which a lessee would pay, making the same uses of the railway, &c., as the company did, with the deduction of tenant's rates, &c., expense of repairs, and the other charges mentioned in stat. G & 7 W. 4, c. 96, s. I. That the last mentioned statute did not, in this respect, introduce any new principle of rating. And that an estimate of the company's liability, founded only on the amount chargeable in respect of tolls, and excluding the receipts for carriage of passengers and goods, &c., was erroneous. That the land must be rated in any particular pariah according to its actual value there, although such value was owing in a great measure to station-houses and other works not within the parish. And that tho rate in any particular parish was to be estimated by the amount of profit actually earned in that parish, and not by the proportion which the length of railway in that parish bore to its entire length. [S. C. 2 (I. & I). 49 ; 2 Kailw. Gas. (529 ; 11 L. ,T. M. C. 93 ; (i Jur. 68G. Adopted, Grreat Eastern Railway v. Hau/jlilcy, L8G(i, L. li. 1 Q. B. 6S3. Applied, Mersey Dock and Harbour Board v. Birkenhead AnsennMeiit Commit/tin, [1900] 1 Q, L . 150.] On appeal by the London and South Western Railway Company against a rate, elated November 5th, 1840, for tho relief of the poor of the parish of Mitcheldever, in the county of Southampton (a)1, the sessions confirmed the rate, subject to the opinion of this Court upon the following case. The London and South Western Railway Company are established and act under a certain Act of Parlia-[559]-meut passed, &c. (4 & 5 W. 4, c. Ixxxviii., local and personal, public, " for making a railway from London to Southampton " ), and four other Acts of Parliament respectively passed, &c. (7 W. 4 & 1 Viet. c. Ixxi. ; 2 & 3 Viet. c. xxviii. ; 4 & 5 Viet. c. i. and c. xxxix. ; local and personal, public), and respectively entitled, &c. Copies of these Acts accompany the case, and arc to be deemed to constitute part thereof, and may be referred to by the Court, or either party, at the hearing thereof (a)2. Under the powers contained in these Acts, or one of them, the company have formed and completed a line of railway from Vauxhall, in the county of Surrey, to Southampton, being a length of seventy seven miles ; and this railway, for four miles (a)1 The terms of the assessment complained of were not set out in the case. (a^2 All the material enactments will be found at the end of this case, pp. 589-592, post. 1Q. B. 860. WESTERN RAILWAY COMPANY 1247 and a half thereof, passes through the parish of Mitcheldever aforesaid ; and, in pursuance of the powers and provisions of the Acts, especially those contained in the 150th to the 161st section of the first mentioned Act, the company have caused lists to he made of the several rates, tolls, and sums which the company have appointed to he taken and received by virtue of the said first mentioned Act; and the said company have duly kept and do duly keep a separate account, shewing the amount of rates or toils which would have been received by them for the use of the said railway, in respect of passengers, cattle or other animals, goods, wares, &c., if carried by any other party or parties, to which said account th over-seers of the poor of the several parishes and townships through which the said railway passes have free access, and have liberty to inspect, in manner by the said Act provided. [560] The sum which would have been so received by the company for such use of the railway by such other parties in the year next immediately before and up to the time of the making of the said rate, in respect of so much of the railway as lies in the said parish, amounts to 34701. 13s. 9d., being such portion of thu tolls as is earned by the railway company in the said parish of Mitcheldever. The whole sum, however, received by the company for the conveyance of passengers, &c., by the company in carnages provided, manned, and worked by the company at their own sole expense, including the said sum of 34701. 13s. 9d., amounts to 13,8801. per annum, in respect of so much of the railway as lia in the said parish. The former sum of 31701. los. !)d. constitutes the proportionate sum for the said parish, which any individual who contracted with the company for the exclusive right to take tolls for the use of the railway by persons using the same, under the powers and subject to the regulations of the aforesaid statutes, for the transmission of goods, cattle, and passengers along the line, iu carriages provided by such persons, would receive from such persons; and the sum of 12931. constitutes the rent which a tenant from year to year would give to the company for the exclusive right to receive tolls for the conveyance of goods, cattle, and passengers, in the manner mentioned in section 157 of the said first mentioned Act, along so much of the railway as lies in the said parish, free of all usual tenant's rates and taxes, and tithe commutation rent charge, and making allowance and (leduotions for the average annual cost of repairs, insurance, and other expenses necessary to maintain [561] the way, its fixtures and appurtenances, in a state to command such rent (a). The respondent parish contends that the annual value i.s not to be estimated on the basis of the tolls alone, nor is to be limited to such tolls or their value; but that the advantage which a lessee of the railway may be expected to derive from his lease by supplying power, and by carrying upon it, may be taken into account. That, if a lessee is to be supposed capable of deriving from the use of the railway, all the profits which now accrue to the company from the conveyance of passengers, cattle, and goods, under the powers of their Acts, such lessee finding locomotive power, carriages, &c., and paying all expenses incidental to working the railway, then the whole railway, with its fixtures and appurtenances, might be reasonably expected to let from year to year at a rent which, for the purposes of this rate, may be assumed at 70,0001. per annum at the lease, free of all usual tenant's rates and taxes, and tithe commutation rent charge, and making allowance and deductions for the average annual costs of repairs, insurances, and other expenses necessary to maintain the way, its fixtures and appurtenances, in a state to command such rent. That, supposing such rent to bo given for the whole line, the proportion thereof in respect of so much of the railway as lies in the respondent parish is to be assumed to be the net sum of 43201. per annum, being the amount at which the appellants were rated in the above rate. The questions for the opinion of the Court are : Whether the company are rateable upon the principle [562] contended for by them, or upon that contended for by tho parish : that is to say, Whether upon an estimate of the net annual value, obtained from the statement of the tolls which would be received by the company as aforesaid, forming the basis of the rent which a tenant would give as before mentioned, subject to proper deductions ; or upon an estimate of the net annual value, as ascertained by (a) See stat. 6 & 7 W. 4, c. 96, s. 1. 1248 THE QUEEN V. THE LONDON AND SOUTH 1Q. B.863. a rent given by a tenant under the circumstances, and for the purposes, above stated, as contended for by the parish. Lastly, whether the annual value, upon which the parish rate is to be made, should be such proportion of the estimated rateable value of the whole line (whichever basis is adopted by the Court) as the length of the part situate in the parish bears to the whole line, or such proportion thereof as the receipts actually derived from or in respect of the carriage of passengers, cattle, and...
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