1840. The QUEEN v. by the 43rd section, and they have done all necessary repairs, the Company never exercising any act of ownership in respect of such family graves, catacombs or vaults, after Inhabitants of such sales. But the Company, at each subsequent interment in the family graves, catacombs and vaults, thus sold, charge various fees for the services of the minister, clerk, sexton, &c. KENSINGTON. The rate in question was founded upon the principle that the Company are liable to be rated for the produce of the ground sold or disposed of as aforesaid for family graves, and for the catacombs and vaults sold or disposed of as aforesaid during each year for the purpose of burial, under the statute, after deducting therefrom all the expenses of building the catacombs and vaults, and family graves, and all other expenses attendant on preparing them for use, and also upon all the fees paid for the service of the clergyman, clerk, sexton, gravedigger, bellringer, &c. (deducting therefrom the stipends paid by the Company to the clergyman, &c. and all other necessary expenses upon such interments,) and likewise upon all fees due upon common interments where no rights for perpetuity or a term is granted, and upon the herbage growing in the cemetery. It was contended by the appellants that the Company were not rateable in respect of the produce of the family graves, catacombs and vaults, sold or disposed of as aforesaid during each year, but only upon the fees paid upon all burials therein, and upon common interments (deducting the aforesaid stipends and necessary expenses) in addition to the herbage as before mentioned. If the Court should be of opinion that the Company are rateable for the sums received by them in respect of the sales for family graves and of the catacombs and vaults, then the rate is to be confirmed. But if the Court should be of opinion that the Company are only liable to be rated in respect of the aforesaid fees and herbage, then the rate is to be amended by reducing the amount from 2000l. to 4447. 18s. (a) (a) By sect. 1, the Company had power to purchase and hold lands, &c. to them, their successors and assigns, for the use of the said undertaking, &c., and to sell aud dispose of such of the said lands, &c. as may not have been used for the purposes of this act in the manner by this act directed." Sect. 4 enabled the Company, in case they should be seised of more lands than might be necessary for the purposes of the act, to sell such lands. Sect. 5. "Provided always and be it further enacted, that it shall not be lawful for the said Company, under the authority of the provisions herein before contained, to sell or dispose of any land which shall have been consecrated and set apart for the burial of the dead." Sect. 7 enacted "that in all conveyances to be made by the said Company, under or in pursuance of this act, the word 'grant' shall operate as and be construed and adjudged in all courts of judicature to be express covenants with the grantees in such conveyances, &c. according to the quality or nature of the estate or interest comprised in such conveyances by or from the said Company, for themselves and their successors, that they the said Company, notwithstanding any act or default done by them, were at the time of the execution of such conveyances seised or possessed of the lands, &c. thereby granted, for an inde 1840. The QUEEN v. Inhabitants of feasible interest of inheritance in fee simple, free from all incum- KENSINGTON. brances done or occasioned by them, or otherwise for such estate or interest as may be thereby granted, free from incumbrances," and should be construed as covenants for quiet enjoyment and for further assurance. Sect. 43, after enacting as stated in the special case, enacted "that every such purchaser and purchasers of the exclusive right of interment or burial, whether in perpetuity or for a limited period, in any such catacomb, vault, or burial place, his or her heirs, executors, administrators or assigns, shall, and he, she, or they is and are hereby required, immediately upon the completion of such purchase, to close the entrance of each such catacomb, vault or place of burial with good and substantial doors, to the satisfaction of the said Company, under the penalty of 10l." By sect. 44 it was enacted, "that the said Company shall, by and out of the monies to be received by virtue of this act, keep the said cemetery and the said chapel, and the several buildings thereon and therein, and the external walls and fences thereof, and all other parts of the same, in thorough and complete repair." By sect. 45, the form of convey ance of the exclusive right of bu rial was given, containing the following terms," do hereby grant and convey unto the said — the exclusive right of burial and in 1840. The QUEEN บ. KENSINGTON. Sir W. W. Follett, C. Clark and Hodges, for the appellants. The Company do not deny that they are liable to be rated for those portions of the burial ground, which are Inhabitants of used for the purposes of interment in ordinary graves, and produces a profit on each such interment. But the question is, whether they are rateable for other portions of ground, which they have granted away for the purposes of exclusive interment. The Company contend that of these last mentioned portions they are not the occupiers, and consequently that they are not rateable in respect of them. The portions in question are applied to the building of vaults and catacombs, of which the grantees have the exclusive enjoyment and control; the grantees are bound to close the entrance of their vaults with sufficient doors; the grantees keep the keys of their vaults, and have the sole right of entering them, and the grantees repair them. The grantees therefore are the occupiers, and not the Company. It is clear from the use of the word " grant," in the statutable conveyance prescribed by section 7, and from the interpretation of the word "grant" in section 45, that it is not a mere easement, but an estate in fee in the land itself, that passes to the grantees. "It is difficult to understand how the exclusive use could be demised and the land not," per Lord Tenterden C. J. in Buszard v. Capel (a); it is still more difficult to understand how the exclusive use of land, in the only way in which the legislature allows the land to be used, can be called a mere easement. The principle of the rate is stated to be, that the Company are liable to be terment in all [here describe the cemetery, and the catacombs or vaults therein." By sect. 46, the exclusive right of burial in perpetuity was to be considered as a personal inheritance, and was to be assignable or disposable by will. (a) 8 B. & C. 141; S. C. 2 M. & R. 197. The QUEEN บ. rated for the produce of the ground sold for vaults. But 1840. that is obviously an erroneous principle; the purchase money received by a vendor on parting with his estate, and in exchange for it, is in no sense a profit of the estate, it is Inhabitants of capital. They cited Rex v. Bell (b), Rex v. The Chelsea Waterworks Company (c). Cresswell and Prendergast contrà. The land itself is not sold by the Company, and the act restrains them from selling it. By the 4th section they may, indeed, sell any surplus land that is not required for the purposes of the act; but by the 5th section they are forbidden to sell any land which shall have been consecrated and set apart for the burial of the dead. The 43d section enables the Company to sell nothing but the exclusive right of burial, and such right is, in express terms, all that can pass by the form of conveyance given in the 45th section. All that passes to the grantee of the Company is an easement: Bryan v. Whistler (c). The Company not only retain the ownership of the land in which they have granted the exclusive right of burial, but such a general occupation of it as renders them rateable. The statute gives the Company a general superintendence and control over the cemetery, and obliges them (section 44) to repair it. The grantees are not occupiers, and the duration of their right to use the soil does not affect the question. If a lodger has a room in a house granted to him in perpetuity, with the key of the door, he does not thereby become a rateable occupier. "In order to constitute a rateable occupier, it is necessary not only that the person should have possession, but that he should have such a control and dominion over the subject, as implies freedom from any paramount occupation, or direct interference by a superior with his domestic arrangements and internal management; such as a farmer enjoys over his farm, and the master of a (a) 7 T. R. 598. (b) 5 B. & Ad. 156; S. C. 2 N. & M. 767. (c) 8 B. & C. 288; S. C. 2 M. & R. 318. KENSINGTON. 1840. The QUEEN v. family over his house." "No lodger, though possessing the principal part of the house, was ever rated; but the owner, how small soever the part reserved for himself, is, in the eye Inhabitants of of the law, the tenant for the whole, and is rated as the occupier;" 1 Nol. 175 (a). They cited also Rex v. Ditcheat (b), and Rex v. Agar (c). KENSINGTON. If the Company are the occupiers, they are clearly beneficial occupiers so as to be rateable: the profit which makes an occupation beneficial, need not be an annual or renewing profit, as appears from Rex v. Mirfield (d), and cases relative to the rateability of mining property. Lord DENMAN C. J.-The single question is, whether the Company are occupiers. The Company have to give effect to the act, and for that purpose a general power of superintendence and control is devolved on them. The 44th section obliges them to repair. I think they are the occupiers and liable to be rated. LITTLEDALE J.-The Company may grant certain privileges in perpetuity, but the Company have to keep the cemetery in repair, and the grantees of the privileges cannot enter the cemetery whenever they please. The Company are occupiers, and make a profit by sale of the privileges. WILLIAMS J.-There is abundant proof of occupation by the Company when Rex v. Agar (c), Rex v. The Mayor of York (e), and Rex v. Tewkesbury (f), are referred to. This is an à fortiori case. It is a fallacy to suppose that in this case the Company sell parcels of land. The power to sell is as to surplus laud only; as to other land, nothing is sold but the right of sepulture. As soon as it is settled that they are occupiers, it requires no argument to shew that they are beneficial occupiers. (a) 4th edit. (b) 9 B. & C. 176; S. C. 4 M. & R. 151. (c) 14 East, 256. (d) 10 East, 219. (e) 6 A. & E. 419; S. C. 1 N. & P. 539. (ƒ) 13 East, 155. |