The first observation is, that this act only applies to the mode of rating, and that it does not extend or diminish the class of rateable subjects. The object of the act seems to be, that the rate should be made on the net annual value for the time being, so as to make the annual value of improvements rateable; and, in short, to make every rate issue as near as may be out of the actual and present net revenue arising from the rateable subjects in the district.

It is clear that a coal mine is primâ facie a rateable subject. But a coal mine, from the nature of the undertaking, it is apprehended, could not be let "from year to year;" no one would take it on such terms. A coal mine cannot be worked without a large outlay; first, there is the sinking of the shaft1 of the pit, and the coursing of the coal; and then the cost of engines, waggon-ways, and machinery; all of which outlay, as the custom is, must be supplied by the tenant, so that he must have the certainty of a long term, say 30 years, in order that he may have a chance of recovering his capital expended. It may, then, be asked, does the assessment act apply to coal mines? We think it does; and the rule we get from it is, that in rating a colliery we must first ascertain what clear profit or net revenue may be expected, and then what proportion of the profit the landlord might reasonably expect were it to be let.

But a colliery and a coal mine are different things. A colliery is a compound subject, and for our present purpose we may say, that it comprises a coal mine and land used in working the same; upon which land there are very valuable fixtures, as steam engines, pumps, winding machines, railways, staiths, workmen's houses, &c.

By the usual form of colliery leases in the North of England, nothing is actually demised to the tenant but the mines, with divers powers and privileges, e. g. to dig and get the mines, to make and use pits and shafts, to have and use roads or way-leaves, as well under as above ground, and to take and use land for engine-houses, workmen's houses, depositing coals, &c.

1 Shaft of the pit, i.e. the perpendicular passage into the pit or mine. 2 An erection of wood at the shipping place of the colliery.

These powers give, we think, the exclusive possession of the land taken thereunder to the lessee during the term, but the lessee having only "a particular right" in such land, he has in strictness only an easement,1 and not the land itself; but it has been decided that he is an occupier thereof within the meaning of the statute of Elizabeth imposing poor rates, otherwise as the tenant of an easement he would not have been rateable.

The rents reserved by the lease are usually-a certain rent for the privilege of getting a specified quantity of coal, and called certain, because it is to be paid whether the allowed quantity be wrought or not; a rent per ten3 for all coal led away beyond the quantity allowed for the certain rent; and a rent for the privilege of using the underground excavation and shaft of the pit for the purpose of working any adjoining coal mine, and getting the coal therefrom. The certain rent, and the rent per ten, commonly called the tentale rent, include the compensation to the lessor for the land which may be taken by the lessee under the aforesaid powers contained in his lease. Supposing the lease to be of an unopened mine, the lessee sinks a shaft, and makes a sufficient pit or excavation underground for working the demised coal mine; both under and above ground he lays down valuable railways; and he provides steam-engines and other fixtures, builds workmen's cottages, &c. It is plain that the annual value of the lessor's property is much increased by the works of the lessee; and it is also clear that had the lessor provided all such works, the rents reserved by the lease would have been proportionably increased. The coal mine demised and the land occupied by the lessee under his powers constitute the colliery. Now the lessee is to be rated not merely for the coal mine, but for the colliery; and the best way of ascertaining the annual value of the colliery seems to be, to suppose that the lease were determined, and that the works of the lessee had be

1 See Co. Litt. 4 b.

"Easement is a privilege that one neighbour hath of ano

ther, as a way or sink through his land, or such like."--Termes de la Ley.

2 See Rex v. Jolliffe, 2 T. R. 90; Rex v. Bell, 7 T. R. 598; Rex v. The Mersey

and Irwell Navigation Company, 9 Barn. & Cr. 95, 112.

3 A ten contains 440 bolls, and each boll 36 gallons imperial measure.

Rex v. Granville, 9 Barn. & Cr. 188.

come the property of the lessor, and then to inquire what rent the colliery is worth; the lessee engaging to maintain the engines &c. during the term in a working state, and deliver them up to the lessor on the termination of the lease in good repair, for doing which he will be entitled to charge an annual sum as part of the current expenditure, say 87. or 10l. per cent. upon the cost price of the engines and other machinery.

When the lease is of opened mines, which lie wholly in the rateable district, and the requisite pits and other such works are provided, the rent reserved by the lease will be some guide to the rateable value. The probable expense of working such a mine, and the probable profit to be derived from it, may be known, and the lessor's rent is calculated accordingly. But if the lease be, as it often is, of an unopened mine in an unexplored district, the case is very different, and the rent reserved is little more than the result of a guess, and should not be regarded at all when seeking to ascertain the rent at which the subject might reasonably be expected to let. If, in such a case, the rent of the lease be no guide, are there any principles which will direct us in the search? We may suppose the lease to be granted of an unopened mine, and that the lessee succeeds in sinking a shaft, and in winning (as the phrase of the country is, and not an unhappy one) the coal. The expense incurred by the lessee in doing this must not be looked at, for it is but creating a rateable subject; it is the same as building a house, or recovering land from the sea or a bog. So, we may suppose that the womb of nature has been opened and explored, not by the art and labour of man, but by its own proper forces; and we must now, with the eye and mind of an experienced "viewer," calculate the cost of bringing the hidden riches to market, and the probable profit. Of course before such a calculation is made, the requisite engines, and railways, and staiths, and drops, and workmen's houses, must be provided; but the outlay so occasioned cannot be considered, though the expense of maintaining them may. The excess of the proceeds arising from the sale of the mineral above the cost of production (excluding entirely from

A viewer of collieries in Northumberland and Durham is the person who conducts the mining operations.

2

the calculation the expense of planting or establishing the colliery) is the revenue which attracts the poor-rate assessment. If there be no such excess, the colliery is not rateable. "All things which are real, and in yearly revenue, must be taxed to the poor." This is plain from the recent statute, for if there be no such excess, there cannot be any rent; and it is, too, in accordance with all the previous authorities, not excepting The King v. Parrott. For in that case there was a considerable excess, though the rent of the landlord, indeed, exceeded it, and the Court did not decide that such rent was the rateable value, but only that the fact of the tenant making no profit, did not prevent the subject being rateable. But though the receipts are computed to exceed the current outlay, that does not prove that the subject is rateable, for a tenant cannot reasonably be expected to be content without some profit. From the gross profit, therefore, must first be deducted the tenant's reasonable profit, and the remainder will be what we may call the rateable revenue. This is proved by the case of The King v. Attwood,3 for there Attwood was rated upon the full value of the annual produce, after deducting the expenses of working, but the Court held that the occupier of a coal mine should be rated at such sum as it would let for, and no more, and they accordingly amended the rate.

A question has been made, whether profit received from the exercise of out-stroke privileges should be included in the

1 Resol. of the Judges of Assize in 1633. Dalt. 235.

2 5 T. R. 593.

36 Barn. & Cr. 277.

4 In a lease of coal mines in Northumberland and Durham, the lessee is frequently empowered to make out-strokes, that is, to make communications between the demised coal mines and adjoining coal mines, and by means of such communications to bring the produce of adjoining coal mines into the demised colliery, and so to vend such produce together with the lessor's own coal. This power is in many cases a very important one; it enables the lessee to make use of the soil of the lessor for a purpose ultra the purposes authorized by the demise. The way in which this power is expressed is not very correct, and were a colliery lease (a very strange composition) to come before a scientific conveyancer, it would puzzle him not a little. First, there is a demise of certain specified mines and seams of coal, with full powers to work and carry away the same, under which the lessee is authorized to carry off the whole and every part, and then comes a "power" to make holes through the same seams of coal, which the lessee is before authorized to carry away en

masse!

computation of the gross profit, and we are of opinion that it should. Such profit is, in fact, a compensation for conveying coals of another over the land and up the shaft of the landlord, and is therefore a profit arising from land in the occupation of the lessee: and where the lease is of a current going colliery, the out-stroke rent reserved is the rateable value of such profit.

For the purpose of rating, a colliery must be considered as one subject; the different parts of which it is composed must not be separated. If the colliery does not produce rent, it is absurd to say, that a pump, or steam-engine, or workmen's houses, or even a farm, occupied chiefly for colliery purposes, produces any rateable profit.'

If a colliery is working coals in different parishes or townships, the proportion of profit arising from the coals of each district must be ascertained as nearly as may be. We may suppose that the coal-mines in the township of M. are demised separately, and that the lessee has power to work coals in the adjoining townships of S. and T. by means of his pit and shaft in M., paying for such power a rent of so much a ten for all coals wrought in S. and T. How is the rateable value for the township of M. to be ascertained? We should say, ascertain the excess of the gross receipts of the colliery over the current annual expenditure, and from such excess deduct what may be thought a reasonable sum to be allowed as profit to the tenant, and the remainder will be the rest which may be reasonably expected. Such rent, the land-tax being deducted, will be the rateable value of the whole colliery, which, it will be observed, by the supposition comprises the coals in three separate and distinct districts. The quantity of coal wrought in each district being known, the due proportion of the rateable value for each district, so far as regards the quantity of coal wrought in each, may be obtained. But the pit and shaft being in M., that township is entitled to more than such a proportion of the rateable value, for it is entitled to rent in respect of the coal in S. and T., being worked by means of and passing over such pit and shaft, that is, it is entitled to a fair outstroke rent. So, then, to the afore

See Rex v. Bilston, 5 Barn. & Cr. 851.

2 Rex v. Foleshill, 2 Adol. & Ell. 593.