1822.

The KING

against The Inhabit

ants of ST. AUSTELL,

is now a declining mine; but considerable quantities of copper ores had from time to time been raised from it: the whole of which, after undergoing several processes of breaking, washing, sifting and stamping, at an expense varying according to the quality of the ores, from 1s. to 6s. and 7s. in the pound, and, as to the poorest ores, even to 15s. in the pound upon their market price, when cleansed for the purpose of separating them from earth and other substances, and thereby rendering them fit to be calcined and smelted, but by which process, the original and native quality of the ores themselves is not altered, had from time to time, before the same were calcined or smelted, been sold or disposed of by the adventurers, sometimes by public, and sometimes by private sale, as and when they thought fit, without any controul or interference by, or on the part of the said Thomas Carlyon. No part of the ores raised had ever been rendered to Carlyon in kind; but in lieu thereof, one-eighth part of the money, from time to time arising from the sales of the ores, had been hitherto paid to him in pursuance of the said indenture. He had been, from time to time, rated and assessed towards the relief of the poor of the parish of St. Austell, in respect of such one-eighth part of the money so arising as aforesaid, and had paid the several assessments up to the making of the rate appealed against.

Wylde, in support of the order of sessions. In the Lead Company v. Richardson (a), it was first determined that mines are not rateable generally, partly

(a) 3 Burr. 1341.

upon

upon the ground, that coal mines alone having been mentioned in the statute, the rule expressio unius est exclusio alterius applies, and partly because of the risk attending the working of them. In Rowls v. Gells (a), the person rated was the lessee of the lot and cope; and he was rated on the ground, that he was the occupier of property to which the risk attending mining concerns did not apply. There, too, the persons working were acting under a general custom within the district, and not under a specific contract, as here. Rex v. Baptist Mill Company (b) was also similar, in both these respects, to Rowls v. Gells. Here, however, the owner is for the first time sought to be rated; unless, indeed, that question can be said to have arisen in Rex v. St. Agnes (c): where, however, the point was not argued. But the cases of Rex v. The Bishop of Rochester (d) and Rex v. The Earl of Pomfret (e) are in point. Those were both cases of owners letting out their property upon a written contract, and the judgment of the Court was against the rate. The owner of a mine under circumstances like the present, may run a considerable risk; for he may be obliged to incur great expense in opening the mine before he lets it to the adventurer, and after having received the rent in ore, may be at great expense in making the mineral merchantable. Here, by the instrument in question, the right of possession in the mine passed to the adventurer, and the landlord, if he entered upon it, would be guilty of trespass; unless, as in Doe dem. Hanley v. Wood (ƒ), he came upon the land for the purpose of re-entry, pur

1822.

The KING against The Inhabit

ants of ST. AUSTELL

suant

་

1822.

The KING against The Inhabitants of ST. AUSTELL.

suant to a power reserved. This is in fact a reservation of rent, and a rent is not rateable. There is an alternative in receiving the rent either in ore or in money, and the lord has elected to take it in money. In Rex v. Earl of Pomfret, it was held, that the defendant was not rateable under similar circumstances. It may be said that the Court there went upon the ground, that the lead reserved had gone through the process of smelting. Here, however, the ore is to be made merchantable; and it cannot surely depend on the quantum of manufacture to which it is subjected, whether it be rateable or not. This, therefore, although a reservation of part of the thing demised, does not operate as an exception, but as a render; and consequently the order of sessions was right.

ABBOTT C. J. I am of opinion that, in this case, Mr. Carlyon is liable to be rated for the dues in question. I am unable to distinguish this case from Rowls v. Gells and Rex v. The Baptist Mill Company; and I think, therefore, that we ought to decide conformably to those authorities. Notwithstanding all that has been urged upon this subject, I cannot distinguish between the cases where a party takes an interest under a specific contract, as in this case, and where the adventurers work under a custom previously existing throughout a district. The case is distinguishable from the case of The King v. The Earl of Pomfret in two respects; first, because there was an absolute demise in that case of all the mines, under which the possession, both of that part which was worked and that which was not worked, passed to the lessees: but here there is an express reservation of part. In the second place, the share re

of

served to the lord, in The King v. Earl of Pomfret, was of smelted lead; but here the reservation is of part the native mineral. On these grounds, it seems to me that we ought to decide in favour of the rate; and I do that with the less reluctance, because it is still open to the party to institute an action against the person who may levy for the rate, and so to bring the question before a higher tribunal.

BAYLEY J. We ought to lay out of the question the circumstance of this being a failing mine. For it is a beneficial and useful property to the person on whom this rate has been made; and it was held in Rex v. Parrott (a) that a coal-mine, whether profitable or not, is still rateable. This falls within the principles laid down in Rowls v. Gells, Rex v. St. Agnes, and Rex v, The Baptist Mill Company, and is distinguishable from Rex v. The Bishop of Rochester and Rex v. The Earl of Pomfret. Here, the person rated is in fact an occupier of land, and derives a profit in respect of that occupation; and that, according to the doctrine laid down in the first set of cases to which I have referred, makes him rateable; and he has not dispossessed himself of the possession of the land, as was done in the two latter cases. In Rowls v. Gells it was first decided, that a party was rateable for lot and cope. It is said, indeed, that the party rated there was a lessee. That distinction makes no difference; for, if the lot and cope had not been rateable in the hands of the original proprietor, it would not have been so in the hands of his lessee. The true ground of that decision was, that the party

(a) 5 T. R. 595.

1822.

The KING

against The Inhabit

ants of

ST. AUSTELL.

was

1822.

The KING against The Inhabit

ants of ST. AUSTELL.

was there considered as an occupier of the land. Rex v. St. Agnes proceeded on the same ground; and in Rex v. The Baptist Mill Company, (at the time of which decision this Court were peculiarly familiar with the words of the act of parliament,) it was determined, that the lessees under the lord of the manor of his lot and free share of calamine were liable to be rated as occupiers of land; and the decision went on the ground, that the lord of the manor would, but for the lease, have been rateable for it also: for the Court considered him as occupying the land by the hands of the adventurers. The latter were to work the mine, and he was to receive part of the ore gotten, and the Court considered him as joint occupier with them. In Rex v. The Bishop of Rochester, the mine was let; and, whether it was worked or not, still the bishop was completely out of possession of it, and the adventurers worked for their own. exclusive profit. There, the rent reserved was a moneyrent, and the relation between the parties to the contract was that of landlord and tenant; and all that the Bishop of Rochester had was the reversion of the land. That, also, was the main ground of the decision in Rex v. The Earl of Pomfret. But, in this case, the adventurers have not the sole and exclusive occupation of the mine; they have only the sole and exclusive privilege of working it. This is not a conveyance of any interest in the mine till is actually worked. It is only a privilege to dig for ore, and then only on the terms of leaving a certain portion of that ore in a fit state for the landlord. It seems to me, therefore, that, according to the authorities to which I have referred, Mr. Carlyon must, in this case, be considered as the occupier of land; and, therefore, that he is liable to the present rate.

HOLROYD