as it may be done with due regard to the interests of the navigation, as, for instance, the right to make wharves and piers, and to allow moorings to be laid down. In this case they have granted to the plaintiffs the right of affixing mooring chains, and this has been done by means of a very substantial erection of a permanent character. Great holes have been dug in the soil of the bed of the river, and great stones put down, chains being passed through the stones, and seventy tons of ballast put over the stones in each hole. Such an erection is as much a permanent erection for the present purpose as a house would be. The right to make this erection having been given by the conservators to the plaintiffs, the plaintiffs got the work done at their own expense and with their own materials. It seems to me that a grant of a right to any one to erect and maintain a permanent structure affixed to the land, such as a wall or other building, or such as the structure now in question, for his own exclusive use and benefit,--call it a licence or whatever name you will,-is primâ facie a grant of a right to have a permanent possession of the piece of land on which such structure is erected. The case is similar to that of the telegraph posts which was cited. But then it is said that we are to put a different construction on the right here granted, because the conservators have a right to remove this structure. But it seems to me that the nature of this right of removal really strengthens the conclusion we have come to. The plaintiffs are to be allowed to have possession of this structure without interference from the conservators, unless in the exercise of their functions they come to the conclusion that it is inexpedient for the public interest to permit it to remain and give a week's notice to remove it. Till then the plaintiffs are to have the full jus possessionis even as against the conservators themselves. And if the conservators interfered with it, it appears to me that the plaintiffs would have an action of trespass against them. It seems to me that under the circumstances the plaintiffs were the occupiers, and were rateable in respect of such occupation, and therefore that the decision of the Court below should be reversed.

MELLISH, L.J. I am of the same opinion. The first question is whether this mooring apparatus became part of the realty. If

so, it is clear that it would be the subject of rating. An ordinary anchor cast out of a ship would not, merely because it was fixed in the soil, become a part of the realty., That was the principle, as it appears to me, upon which the former case between these parties was decided. It was there considered that the mooring stone could not be taken to be in the nature of a permanent structure, but was only put down temporarily to keep the vessel in its place, and could be pulled up at any time like an ordinary anchor. Here, having regard to the description of the mooring stone, and the manner in which it was fixed, I cannot avoid coming to the conclusion that it had become a part of the realty. It is also quite plain that there was a profitable occupation, because a large sum of money was paid for the right to have these moorings. The only remaining question, therefore, is whether the conservators or the plaintiffs are in the occupation of these moorings. Now it seems to me that the Court of Common Pleas have not sufficiently taken into consideration the fact that these mooring stones all along belonged to the plaintiffs. There is a great distinction in that respect between this case and cases such as those in which the question arose, as between a person who had had granted to him some right of user of the land and the grantor who had reserved some right over it to himself, which of the two was the occupier for rating purposes; as, for instance, the cases where the question. was whether a party was in the position of a lodger merely, the landlord remaining the occupier, or in that of a tenant. Very nice distinctions have arisen in such cases, but there both parties have more or less a co-property in the house, or other real property in question. It is necessary in such a case to consider what degree of right each party may have. But here the conservators did not obtain any property in the mooring stones, anchors, or chains, and it was never intended that they should be applied in any way for the benefit of the conservators. I do not see how the present case can be distinguished from the cases in which waterpipes, gaspipes, and telegraph posts have been held rateable. These cases seem to me to shew that where a person in possession of land allows another to make on such land an erection which becomes part of the realty, and to use such erection for his own. exclusive purposes, and the landowner is to have no benefit from

1875

CORY

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BRISTOW.

1875

CORY

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BRISTOW.

or interest in such erection, there is an occupation by the person making such erection in respect of which he is rateable. For these reasons, I think the judgment should be reversed.

BAGGALLAY, J.A. I am of the same opinion. There is no question as to the legal principle upon which questions of this kind depend. The principle, as I gather it from a long series of decisions, is that the foundation of rateability is the exclusive occupation of the rateable subject. All that we have to do, therefore, is to ascertain whether the plaintiffs had the exclusive occupation of the rateable subject. I do not think it necessary to go through the facts, but I agree that the result of them is that the exclusive occupation of the moorings was in the plaintiffs. The case of the telegraph posts seems to be the most nearly in point as an authority. As a court of appeal we might reconsider the decision in that case, but it appears to me that it only follows a long series of cases all pointing in the same direction.

BLACKBURN, J. I am of the same opinion. It is only on one point that I differ from the Court of Common Pleas. All the judges below agreed that the manner in which these moorings were laid down was such as to render them rateable in the hands of the occupiers, whoever they might be. But they thought that the plaintiffs were not the occupiers of them. In that respect I differ from them. I will not discuss the cases in which such distinctions as that between use of a house by a person as a lodger and occupation by a tenant have been discussed with regard to rating questions. The principles which govern such cases have been explained as well as I could explain them now in two cases. One was Smith v. St. Michael, Cambridge (1), a case in which it appeared to Hill, J., and myself, after consideration, that notwithstanding various strong technical expressions pointing in the direction of a demise, we must look to the real facts, and finding that the landlord was to retain possession of the premises by his servants for certain purposes, such as cleaning, we thought that he must be taken to be the occupier for the purpose of rateability, and the occupation of the commissioners of inland

(1) 3 E. & E. 383.

revenue, to whom he had granted the use of the rooms, was merely in the nature of that of a lodger. The other case is Roads v. Overseers of Trumpington (1), which was just the converse case, for there, though no technical words such as "rent," or "demise," were used, we thought that, looking to the whole of the agreement, there was in fact a right of exclusive possession given to the appellant, and so, that he was properly rated. It is on the application of the principles laid down in those cases to the present that I differ from the Court of Common Pleas, rather than on any question of principle. Lord Coleridge, C.J., seems to have thought that the conservators could not have intended to part with the exclusive possession of any part of the bed of the river, chiefly on the ground that it would have been contrary to the provisions of their Acts to have done so, and he quotes the terms of the 91st section of 20 & 21 Vict. c. cxlvii. in proof of this; and Brett, J., also seems to have thought that a duty was imposed on the conservators not to part, for however short a time, with the absolute power and control over any part of the bed of the river. If I could see that that was so, I should have agreed that though the conservators might have used words pointing in the direction of a grant of the exclusive occupation, they must have meant only to give a right in the nature of an easement, retaining the occupation in themselves. I cannot however find any provision in the Act such as the Court of Common Pleas seems to have supposed it to contain. The terms of the resolution seem to me to give the plaintiffs a right to have these moorings subject to the right of the conservators to remove them at any time on giving the week's notice required by the 91st section. Until such notice was given the conservators were bound by the bargain they had made, and I cannot doubt if they had removed the moorings without giving notice they would have laid themselves open to an action of trespass. So far from the Acts prohibiting the conservators from parting with the possession of any part of the bed of the river, I find an express provision enabling them to allow moorings to be laid down and their control over the part of the river bed, where such moorings might be, to be suspended until a week's notice to remove them has (1) Law Rep. 6 Q. B. 56.

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CORY

v.

BRISTOW.

Liཎu,: ར ས ངསར

1875

CORY

v.

BRISTOW.

expired. Under these circumstances I can come to no other
conclusion than that, until such notice had been given, the plain-
tiffs became, by virtue of their agreement with the conservators
and what was done under it, the exclusive occupiers of these
moorings. That the occupation was a profitable one is clear from
the facts of the case, and consequently the plaintiffs became rate-
able in respect of it.

Solicitor for plaintiffs: M. Shephard.
Solicitor for defendant: W. Bristow.

Judgment reversed.

Nov. 24.

SMITH v. CHEESE AND ANOTHER.

Bill of Sale-Attesting Witness, Description of" Gentleman." The attesting witness to a bill of sale was described in the affidavit required by 17 & 18 Vict. c. 36 as "gentleman." He had been a proctor's managing clerk, but had ceased to be so for six years. Since that time he had lived on an allowance from his mother, and had, on a few occasions, collected debts and written letters for other persons, and had drawn four bills of sale, but he had no regular occupation:

Held, that the description "gentleman" was sufficient.

INTERPLEADER issue between the plaintiff as claimant of certain goods under a bill of sale and the defendants as execution creditors.

The case was tried before Brett, J., at the sittings in Hilary Term, in Middlesex, 1875, when the facts, so far as material to the question now raised, were as follows:-The attesting witness to the bill of sale, in the affidavit of such witness required by 17 & 18 Vict. c. 36, was described as a "gentleman." It appeared in evidence that he had been managing clerk to a proctor six years before the execution of the bill of sale. Since that time he had, on a few occasions, collected debts and been paid his expenses, and written letters for other persons; and it appeared that on four occasions he had drawn bills of sale, but he had had no regular occupation, and had subsisted on an allowance from his mother.

It was objected on behalf of the defendants that the description of the attesting witness was insufficient under the Bills of Sale Act, 17 & 18 Vict. c. 36.