Scottish Court of Session Decisions

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Cite as: [1874] SLR 11_541, [1874] ScotLR 11_541

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SCOTTISH_SLR_Court_of_Session

Page: 541↓

Court of Session Inner House Second Division.

Wednesday, May 27. 1874.

11 SLR 541

Special Case for James Craig, Inspector of the Poor of the Parish of St Cuthberts, and the Edinburgh Street Tramways Company.

Subject_1Poor
Subject_2Slat. 8 and 9 Vict. c. 83:

Facts:

Held that a Tramway Company were liable to be assessed for support of the poor, as owners and occupiers of lands and heritages.

Headnote:

The party of the first part to this Special Case was the Inspector of the Poor of St Cuthbert's Parish, Edinburgh. The second party was the Edinburgh Tramway Company. The questions submitted for the opinion of the Court were:—

“(1) Are the Tramways belonging to the second party liable to assessment for poor rates as lands and heritages?

(2) Is the second party liable to be assessed for poor rates as occupier and owner of such lands and heritages, or as owner, or as occupier, of such lands and heritages?”

The Tramway Company are incorporated by the Act 34 and 35 Vict., in which are incorporated, inter alia, parts II and III of the Act 33 and 34 Vict. c. 78. By sec. 57 of the last mentioned Act it is enacted that, “notwithstanding anything in this Act contained, the promoters of any tramway shall not acquire or be deemed to acquire any right other than that of user of any road along or across which they lay any tramway, nor shall anything contained in this Act exempt the promoters of any tramway laid along any turnpike road, or any other person using such tramway, from the payment of such tolls as may be levied in respect of the use of such road by the trustees thereof.” The second party stated that the assessor of railways and canals has valued the line of tramways belonging to the said second party, and has included the said line in the valuation roll prepared by him for the year from Whitsunday 1872 to Whitsunday 1873 as lands and heritages belonging to or leased by and forming part of the undertaking of the second party—and the yearly value of the said 2 miles 41 chains of the second parties' line situated within the parish of St Cuthberts and burgh of Edinburgh is stated by him to be £904. The first party, in terms of their powers of assessment, imposed upon the second party as owner and occupier of the said line of tramways an assessment for the relief of the poor of the said parish, for the year ending Whitsunday
Page: 542↓
1873, amounting to £33, 18s. sterling, being at the rate of tenpence per £ upon the said yearly rent or value as entered in the said valuation roll. But the second party has declined to pay the assessment, and maintains that the tramways are not lands and heritages in the sense of the Poor Law Act, and that, even assuming them to be lands and heritages, the second party is neither owner nor occupier thereof.

Cases cited— Hay v. Edinburgh Water Company, 12 D. 1240, H. of L. 1 Macq. 682; Pimlico Tramway Company v. Greenwich, L. R. C. J. vol. ix, p. 9

At advising—

Judgment:

Lord Benholme—Two questions are raised in this Special Case.

On the first question I am moved by the statement in the 18th article, that the assessor has valued the line of tramways and included the said line in the valuation roll as lands and heritages belonging to or leased by the second party.

Besides, the English authority stated leaves no room for doubt that the parties here who occupy, and I think are owners in the sense of the statute, are liable to be assessed.

If the question was, are they feudal owners? there might be some difficulty, but the Poor Law Act removes any such difficulty and defines owners to “be persons who shall be in the actual receipt of the rents and profits of lands and heritages,” and so clearly ascertains these parties to be owners. They have a permanent right, and their engagement is as long as they choose to be a company.

Lord Neaves—I concur. The case of Hay was the first to bring this species of occupancy into prominence, and applied to a state of things which must include tramways.

The English authorities also throw light on it. The only specialty founded on here is, that in the Tramway Act, § 57, it is enacted that the promoters are not to have any right higher than that of user, but the fact that they are in the actual receipt of the profits is sufficient without a feudal title.

Lord Ormidale—I concur. There is no doubt the Tramway Company occupies lands. They are in the permanent and exclusive occupancy, and they are in receipt of the rents and profits of lands so occupied. The only doubt which occurred to me arose from the expression user in the 57th section. I do not require to state the meaning of the term in England, but I think it just amounts to this, that occupation of lands which is permanent and exclusive, and accompanied by receipt of rents and profits according to the Poor Law Amendment Act, are requisite to constitute liability as owner and occupier.

Lord Justice-Clerk—I concur. On the question whether these rails and sleepers are lands and heritages I think the case of Hay is conclusive, and that they must be put in same class as water and gas pipes. When they have been put on the valuation roll, then comes the question, Who is the owner? It is clear no one is owner but the Tramway Company. Whatever the term user may mean, the Tramway Company have the right of receiving the rents and profits, and that, taken along with the terms of the Poor Law Amendment Act, is sufficient to constitute liability.

Counsel:

Counsel for Parish of St Cuthbert's— Marshall. Agent— E. Miln, S.S.C.

Counsel for Tramway Co.— Mansfield. Agents— Lindsay, Paterson & Hall, W.S.
1874