Chelsea Waterworks Co. v. Bowley. Therefore, as J. C. Tarleton was only tenant for life in remainder at the time of the second recovery in 1822, being twenty-seven years before any sale took place, that recovery could not operate at all, and may be falsified by the now plaintiff, the alleged remainder-man in tail under the release of the 18th of March, 1815. That second recovery in 1822 may, therefore, be put out of consideration in our inquiry as to the effect of the 27 Eliz. c. 4, with reference to the purchase made by the defendant in 1849. The only way in which it should seem that the 27 Eliz. c. 4, can operate would be by treating the sale and purchase by the defendant in 1849, and the conveyance to him by J. C. Tarleton, as making void the declaration of uses in the voluntary deed of the 18th of March, 1815; and holding that thereupon the recovery of 1825, for want of a declaration of uses, would enure to give J. C. Tarleton a remainder in fee on the death of his father and mother, which he has conveyed to the defendant, in 1849. The case Doe d. Baverstock v. Rolfe is an express authority for so holding. That case was mainly grounded on the case Fitzjames v. Moys, 1 Sid. 133; but all the authorities bearing upon this point were then considered, and we think that the conclusion at which the court arrived on such consideration was correct. The result is, that either the deed of March, 1815 was wholly vitiated and done away with by the fraud of J. Tarleton the father; or if not, that the use declared in it by J. C. Tarleton the son was voluntary. The effect is the same upon the supposed right of the present plaintiff in either view of the case. We are, therefore, of opinion, under all circumstances of this case, that the plaintiff, Banastre Tarleton, has not any estate or interest in the moiety of the Collingwood estates comprised in the indenture of settlement of the 30th of September, 1790, and we shall so certify to the Vice-Chancellor. Certificate accordingly. THE GOVERNOR AND COMPANY OF CHELSEA WATERWORKS V. BOWLEY.1 Land Tax-Waterworks Company - Liability in respect of Pipes. A water company which has laid pipes in a land tax division under a statutory power in that behalf, but which is the owner of no land within the division, is not assessable there to the land tax; the right in question being in the nature of an easement, and not "land" or "hereditament." TRESPASS. Plea― Not guilty by statute, upon which issue was joined. 120 Law J. Rep. (N. s.) Q. B. 520; 15 Jur. 1129. Chelsea Waterworks Co. v. Bowley. By consent of the parties, and by order of Wightman, J., the following case was stated for the opinion of the court. The Chelsea Waterworks Company were incorporated, in pursuance of the statute 8 Geo. 1, c. 26, by charter, for the purpose of supplying the city of Westminster and other places with water, and the company were authorized by the said statute and charter, amongst other things, for that purpose to have, purchase, receive, enjoy, possess, and retain to them and their successors, messuages, lands, tenements, rents, and hereditaments, not exceeding 1000l. per annum in the whole, with certain powers, liberties, and privileges touching the directing, ordering, appointing, and making such waterworks, and maintaining, preserving, and supporting the same, as in the said act and charter is particularly mentioned. The company were further empowered from time to time, without molestation or disturbance, by their servants and workmen, to lay pipes from their waterworks, and branches from the main pipes, in or through any of the streets, passages, or common grounds or places in or about Westminster, and the parts adjacent, for conveying water to serve and supply the said inhabitants, and for that end to break up the pavements and ground, and dig and sink for laying, amending, and repairing such pipes or branches from time to time. In pursuance of the powers so granted, the company purchased and still hold, to them and their successors, lands of less value than 1,000l. per annum, and which are situated wholly in the parish of St. George, Hanover Square, in the county of Middlesex, on which the waterworks of the company are erected, and the company have also, from time to time, under the same powers, laid down main pipes from the said waterworks in, under, and through various streets, passages, and common places in the said parish of St. George, Hanover Square, and other main pipes and branches communicating with and extending from the last-mentioned pipes, in, under, and through various streets, passages and common places, in the adjoining parishes of St. Margaret and St. John, Westminster, for the purpose of supplying the inhabitants of such parishes respectively with water, and the said pipes and branches continued and were so laid down and used by the said company for the purpose aforesaid, in the said parishes respectively, under the powers in the said charters and acts of Parliament, before and at the time of the making of the assessment and of the seizure of the goods of the company hereinafter mentioned. The company have not and never had any interest in the land or soil in the said parishes of St. Margaret and St. John, Westminster, in, under, and through which their said pipes and branches are so laid, other than such right as may be conferred on them by the said statute and charters of laying pipes as therein mentioned, and which right they have so exercised as aforesaid. The company do not pay and never have paid to any person or persons any rent or sum of money for or in respect of the land or soil in the said parishes of St. Margaret and St. John, Westminster, in, under, and through which their said pipes and branches are so laid. The company do not receive any profit from the land or soil in the said parishes of St. Margaret and St. John, Westminster, in and Chelsea Waterworks Co. v. Bowley. through which their said pipes and branches are laid, unless the profits which arise upon the sale of the water supplied by the said company through such pipes and branches to the inhabitants of the aforesaid parishes can be so considered. The amount of such last-mentioned profits does not depend on, nor is the same regulated by the length or distance of the pipes through which the water is conveyed. On the 15th of June, 1847, the assessors of the land-tax, duly appointed, and acting under the statutes 38 Geo. III. c. 5, and 38 Geo. III. c. 60, for the division of St. Margaret and St. John, Westminster, in the county of Middlesex, which does not comprise any part of the parish of St. George, Hanover Square, but which comprises the said parishes of St. Margaret and St. John, Westminster, in and by their certificate of assessment or duplicate thereof, which was duly signed by the commissioners authorized in that behalf, and delivered to the collectors, made an assessment, which was and is entered in the books of the said commissioners, as follows: The mains, pipes, and other apparatus, referred to in the fourth column of the said assessment, were and are the same mains, pipes, and branches so laid by the said company in the said parishes of St. Margaret and St. John, Westminster, within the division aforesaid, and through which water was so supplied by the said company as aforesaid. On the 24th of February, 1848, the defendant, by the authority of the said commissioners, distrained goods and chattels of the plaintiffs for the sum of 71. 5s. 10d., which is the trespass complained of. The warrant of distress, entry and seizure, and notice of action are, admitted; and, by agreement of the parties, the sole question for the opinion of the court is, whether the company are liable to be assessed towards the payment of land-tax within the said division of St. Margaret and St. John, Westminster, under the circumstances above set forth. If the court should be of opinion that the company are so liable, then the plaintiffs agree that judgment of nolle prosequi shall be entered against them immediately after the decision of this case, or otherwise, as the court may think fit; but if the court should be of a contrary opinion, then the defendants agree that judgment shall be entered against them by confession, for 7. 5s. 10d. damages, and costs 40s., immediately after the decision of this case, or otherwise, as the court may think fit, and that judgment shall be entered accordingly. Chelsea Waterworks Co. v. Bowley. The case was argued on the 6th of June,1 by Crowder, for the plaintiffs. The plaintiffs are not assessable to the land-tax in respect of their mains and pipes passing through districts` where they have no land or plant whatever. The 8 Geo. I. c. 26, s. 9, gives them the right to lay down pipes, but they are not owners of the land through which they pass; they have only something in the nature of an easement over it. No case can be found where such an interest has ever been assessed to the land-tax. Reference will be made to the cases where water and gas companies have been held ratable to the poor, under the 43 Eliz. c. 2, in respect of their pipes. But there is a clear distinction between that statute and the land-tax acts. They are ratable occupiers under the statute of Elizabeth; and it is not proposed to question the cases by which water and gas companies have been held liable to poor-rates for their mains and pipes. The King v. Bath, 14 East, 609; The King v. The Brighton Gas Company, 5 B. & C. 466; The King v. The Chelsea Waterworks Company, 5 B. & Ad. 156; The King v. The Rochdale Company, 1 M. & S. 634; Rex v. The Birmingham Gaslight Company, 1 B. & C. 506. But the words of the land-tax acts are widely different. By 38 Geo. III. c. 5, s. 4, (made perpetual by 38 Geo. III. c. 60,) the tax is laid upon all "manors, messuages, lands, tenements, and hereditaments," and upon every person "having or holding" such manors, &c. It is clear that this refers only to land, either owned or tenanted by the person assessed. He must either "have" or "hold it." Now, such an interest as that possessed by the plaintiffs is not land, and cannot be said to be had or held by them. [LORD CAMPBELL, C. J. Is it not so in the popular sense of the words? They have a legal interest in the land.] It is a mere modified right, incapable of ownership or of being tenanted. [ERLE, J. As between the owner of the dominant and servient tenement this would clearly be an easement.] The 38 Geo. 3, c. 5, s. 17, imposes the tax, in the first instance, on the tenant, who may deduct it from the rent. It is, therefore, alandowner's, not an occupier's tax. The Land-Tax Redemption Act, 42 Geo. 3, c. 116, s. 9, also affords an argument against this being a subject in respect of which land-tax can be charged, for it is clearly not such an interest as could be redeemed. The Vauxhall Bridge Company v. Sawyer, 20 Law. J. Rep. (N. s.) Exch. 304, is different. There, tolls derived from the use of land were held assessable as a "tenement or hereditament." The right which these plaintiffs possess does not fall within that definition. Willes, contrà. It is admitted by the plaintiffs, that unless the case of land-tax is clearly distinguishable from that of poor-rate they must fail; and they rely on the dictum that a poor-rate is a tenant's tax, and the land-tax is a landlord's tax; that, however, is only as 1 Before LORD CAMPBELL, C. J., PATTESON, J., COLERIDGE, J., and ERLE, J. Chelsea Waterworks Co. v. Bowley. between landlord and tenant, and cannot at all affect the liability of any particular property to the tax. LORD CAMPBELL, Č. J. It merely means that in the absence of any compact between landlord and tenant, the landlord bears the land-tax and the tenant the poor-rate.] This is so explained in The King v. Mitcham, Cald. 276, and The King v. St. Lawrence Westminster, Ibid. 379, where it is distinctly stated by Lord Mansfield that the land-tax is assessed upon the occupier, who is the person liable to pay it, and against whom the remedy for non-payment is taken as between him and the public. The landlord, under a covenant to pay land-tax, is liable to pay only in proportion to the rent paid to him. Whitfield v. Brandwood, 2 Stark. N. P. 440; Hyde v. Hill, 3 Term Rep. 377. Therefore, ultra that amount, it is a tax falling on the occupier; and so there is really no difference in that respect between a poor-rate and land-tax. But the plaintiffs are liable under the express words of the Land-Tax Acts; as the grant to them of a right to lay their pipes is in the nature of a hereditament. [ERLE, J. The statute 8 Geo. 1, c. 26, makes a distinction between holding land and laying pipes. According to your argument, if they purchased land to the amount of 1,000l., and also laid pipes to the value of 5000, they would transgress their power, which is certainly not intended.] Crowder, in reply. The plaintiffs are rated as for land, not for a hereditament, and it must, therefore, be made out that they have or hold land in the division. A land-tax is an impost falling finally and essentially on the land-owner; although, for convenience of collection, it is paid in the first instance by the tenant. Cur. adv. vult. Judgment was now delivered by ster. LORD CAMPBELL, C. J. We are of opinion, that the Chelsea Waterworks Company are not liable to be assessed towards the payment of land-tax within the division of St. Margaret and St. John, WestminWe should have had no difficulty in arriving at this conclusion had it not been for the decisions holding this and similar companies liable to be assessed to the poor-rate under 43 Eliz. in respect of the same subject-matter. The validity of the present assessment is rested on the 4th section of 38 Geo. 3, c. 5, whereby it is enacted, that "all bodies corporate having or holding any lands or hereditament shall be charged" to the land-tax. The question is, whether in respect of what the company have done and now enjoy under the powers conferred upon them by sections 8 & 9 of 8 Geo. 1, c. 26, they can be said to have or to hold any land or hereditament? Although it has been considered for more than a century that they do not, they could not resist the assessment if they ever were liable to be assessed to the land-tax. But we think that the parishes through which their pipes pass have acted properly in omitting to assess them. The right in question, when exercised, appears to us to be in the nature of an easement, and neither land nor hereditament. The right |