fendants could not maintain trespass. They have a right to do all that is necessary to give them the complete enjoyment of the quarry, by erecting galleries and all engines requisite to work the stone. In order to do so they must be in the exclusive occupation of the quarries, and if so, why may they not maintain trespass against a wrong-doer? Here there is nobody else working the quarries; and they are, to all intents and purposes, in the exclusive occupation. The proprietors of the quarry cannot be rated; for the two-pence per ton for the stone, which they derive, is a pure rent, and is not rateable; Rex v. The Bishop of Rochester (a), Rex v. Earl Pomfret (b). But the case decisive of the present is Rex v. All Saints, Derby (c), where a pauper, by order of a corporation made at common-hall, was allowed the liberty to take sand and gravel from the bed of a river, (of which the corporation were entitled to the soil,) with a condition that he sold the sand to the inhabitants of the town at a certain rate; for which liberty he paid to the corporation at the rate of ten pounds per annum, it was held that he thereby acquired a settlement. That case was founded upon the principle that, under such a license, the pauper had such an exclusive occupation as to coufer a settlement.

W. E. Taunton, contrà. The defendants are not in any sense the occupiers of this quarry; but even if they are, still they are only occupiers as trustees for the public, and not for any beneficial purpose of their own. First, are they occupiers at all? By the agreement set out in the case, and recited and ratified by the act of parliament, the owners of the quarry are bound to supply the company with lime-stone at the rate of 7d. per ton, in a good merchantable state, and in default of their continu(a) 12 East, 355. (b) 5 M. & S. 141. (c) Id. 90.

1825.

The KING

v.

The TRENT and MERSEY

CANAL.

1825.

The KING

0. The TRENT and MERSEY CANAL.

company

ing to supply the stone, then the company may enter and
help themselves, paying the owners only 2d. per ton for
the quantity taken. It is clear, therefore, that when the
entered and took the stone, they did not do so
by virtue of any specific license from the proprietors, but
by force of the particular agreement entered into be-
tween the parties, and sanctioned by the legislature.
When the owners no longer chose to work the quarries,
and thereby forced the company to enter and work them,
the former must still be considered as in the occupation
through the medium of the company, the only difference
being, that the latter found the labourers and paid them
their wages.
Under the particular circumstances of
this contract, these quarries have been ostensibly worked
for the last thirty years by the owners of the soil, by the
hands of the company, who have had no distinct rateable
occupation. The principle to be collected from all the
cases upon this subject is, that the liability to pay the
rate attaches upon the person who is in the visible oc-
cupation of the land, and not upon those who may have
any subordinate interest carved out of the property. If
the company in this instance are to be held rateable as
occupiers of the stone quarry, the principle may be
carried to a most inconvenient extent. For instance, in
the case of underwood, which is one of the rateable sub-
jects mentioned in the statute of Elizabeth, it is a com-
mon practice throughout England for the owners of such
property to sell it in a growing state, giving the pur-
chaser license to come on the land, cut it down and
carry it away at the price agreed upon. In such case,
who would be the rateable occupier? Surely the vendor,
and not the vendee. That instance applies directly to
this case. Again, in the case of grass farms, it is a com-
mon practice, particularly in the neighbourhood of Lon-
don, for the farmer to sell the growing crop to a stable-

case who

keeper or dairyman, giving the purchaser license to
come upon the land, cut the grass and make it into hay
at his own risk and expense. In such
would be the occupier, the owner of the farm or the
purchaser of the crop? Surely it could not be held that
the purchaser of the crop was a rateable occupier within
the meaning of the statute; and yet there is no distinc-
tion in principle between that case and this. Suppose
also the case of a nurseryman, who contracts to supply
a certain number of plants growing in his garden, and
allows the purchaser the privilege of coming on the
land to take them as he has occasion for them, paying
a certain reduced price in consideration of taking upon
himself the labour and expense of carriage, who in that
case would be the rateable occupier? Surely it would
be absurd to argue that the purchaser of the plants was
a rateable occupier. That case comes nearer the point
in question than either of the other instances. But in
many parts of England where there are stone quarries,
the owner, instead of taking upon himself the trouble
and risk of working, contracts with the mason to come
and get the stone, paying him so much per ton or square
yard as the case may be; but it was never yet considered
that the purchaser in such case was to be deemed the
occupier. The owner of the stone, who makes the con-
tract, is in every sense the rateable occupier. The
cases cited on the other side are wholly inapplicable to
this, because in them the person rated was liable per-
sonally as the beneficial owner of the estate in respect
of which he was rated. But here the company have
only a subordinate interest carved out of the land, and
stand merely in relation of purchasers of a portion of the
produce. The authority of the case of Rex v. All
Saints, Derby, is not disputed, but it does not at all
touch the present case. The occupation of an estate

1825.

The KING 0.

The TRENT

and MERSEY CANAL.

1825

The KING

V.

The TRENT and MERSEY CANAL.

which would gain a man a settlement would not necessarily render him a rateable occupier. Would a cow tenement make a man a rateable inhabitant? Surely not. It is not denied as a fact that the company have exclusively worked these quarries for the last thirty years, but that is merely an accidental circumstance, and does not make them occupiers within the sense and meaning of the statute of Elizabeth. But assuming them to be occupiers in any sense whatever, then the question is, secondly, whether they are beneficial occupiers, or occupiers only as trustees for the public. Now attending to the language of the act of parliament ratifying the agreement in question, it is manifest that they are neither the exclusive occupiers, nor have they a beneficial occupation which will make them liable to be rated. The primary object of the legislature in passing this act, was to secure to the public a supply of lime-stone at the cheapest possible rate for agricultural and other purposes, and having that object in view, the statute imposes upon the company the obligation of executing such orders as may be entered by the public in their books, and in case of default, they shall not only return the deposits which have been paid at the time the orders were given, but they are rendered liable to a penalty by way of forfeiture, equal to the money deposited, for such default. There is therefore a duty and obligation cast upon the company, which they must not neglect but at the peril of a penalty. Is this then consistent with the nature of an occupation for the company's own beneficial purposes? Surely not. But the act does not stop there, for it is expressly declared that in case of default, either on the part of the company or of the quarry owners, "it shall and may be lawful, for the person or persons to whom such stone was to be delivered, to enter into the pit or quarry of such proprietor or proprietors of lime-stone having so

made default, and to employ any person or persons to get the quantity so required, upon paying the sum of 2d. per ton only for such stone, they getting the same in a regular and proper manner." It is manifest therefore from these two provisions, first, that the company have not the exclusive occupation, because any other person would be entitled to come and get lime-stone in case of default, either on the part of the company or of the stone proprietors, and second, that the company are merely trustees for the public, and not beneficial occupiers, upon whom the liability to pay rate attaches. On these grounds the order of sessions must be quashed.

ABBOTT, C. J.-This case comes before the Court under circumstances so very peculiar that it is not very likely any prior decisions should be found to cast much light upon it, or serve as a guide for our judgment on the subject; nor is it likely that our decision may serve as a precedent for any case that may occur hereafter. The question arises upon a contract of a very special nature, made between the owners of certain lime quarries and the Trent and Mersey Canal Company. The question is, whether, due regard being had to the terms of that contract, the company can or cannot be considered as the occupiers of the lime quarries for which they have been rated. Now, looking at the contract, it appears that the company, before it was executed, had made an application to parliament to enable them to make certain railroads. At that time it was thought convenient and beneficial to the public, that quantities of lime-stone in the neighbourhood of Caldon should be secured at a specific price as far as regarded the owners of the quarries, and in consideration of their consent to supply stone at that price, the company undertook to apply to parliament for some alteration in the bill then depending. The contract

1825.

The KING

V.

The TRENT and MERSEY

CANAL.