the rack rent of the lands or premises in connection with which the said word is used, whether on his own account or as agent or trustee for any other person, or who would so receive the same if such lands or premises were let at a rack rent."

The meaning of the definition of owner in s. 250 of the Metropolis Management Act, 1855, and of the similar definition in the Public Health Act, 1875, has been repeatedly considered by the Courts. In Hornsey District Council v. Smith (1) A. L. Smith L.J., delivering the judgment of the Court of Appeal, after stating in some detail the two cases of Plumstead Board of Works v. British Land Co. (2), in the Exchequer Chamber, and Great Eastern Ry. Co. v. Hackney Board of Works (3), says: "These two cases, in our judgment, shew that, if land be by statute for ever incapable of yielding a rack rent, the owner thereof is not' owner' within the meaning of the Acts." I respectfully agree with this conclusion. The question then reduces itself to this, whether the land is by statute for ever incapable of yielding a rack rent. In Plumstead Board of Works v. British Land Co. (2) the lands in question were roads dedicated to the public. In Great Eastern Ry. Co. v. Hackney Board of Works (3) the "lands" consisted of the parapets of a bridge erected over a cutting in which the Great Eastern Railway runs. It was suggested that the walls of the parapets might be turned to profitable use by the company by letting the surfaces for posting advertisements. On this Lord Watson observed: "The suggestion is ingenious, and may or may not have some possible foundation in fact, but it fails to satisfy me that the Legislature in framing the Metropolis Management Acts intended to deal with the surface of a mere roadside fence as 'land' which might be let at a rack rent." With this Lord Blackburn expressed his concurrence. Lord FitzGerald says: "The bridge is by the statute dedicated to public use, and its fence walls are provided for public protection; and if the ownership and control of the walls is in the company, it is so for public purposes and subject to the obligation of perpetual maintenance, unless and until some other good and (2) L. R. 10 Q. B. 203.

(1) [1897] 1 Ch. 843.

(3) 8 App. Cas. 687.

C. A.

1903

LONDON
COUNTY

COUNCIL

v.

WANDSWORTH
BOROUGH

COUNCIL.

Stirling L.J.

sufficient fences shall be provided by the company in their stead
for the public protection. The company could not let the walls
at a rack rent, and, if they might use them for any purpose, it
must be a use subordinate to the public purposes to which the
bridge, as a structure, is in its whole devoted." These passages
seem to me to establish that, although land dedicated to public
purposes may be, or be capable of being, used for some purpose
of profit, it does not follow that it is, or can be, let at a rack
rent. Now, Tooting Beck Common is by the scheme and
statute of 1873 dedicated to the public as a common or
recreation ground." The extent of the rights of the public is
shewn by this, that it was considered necessary to insert
express provisions authorizing the Metropolitan Board of
Works to fence off for short periods such portions of the turf
and grass as might require rest, and also to put up in a defined
position a post and chain fence for the protection of the common
against the straying of cattle. These rights of the public
appear to me to be such as to render the common as a whole
incapable of being let at a rack rent. It is stated in the special
case that the common is let for grazing purposes; but I take
this to mean that licences have been granted to feed sheep and
cattle thereon subject to and consistently with the rights of the
public; and any payments made in consideration of such
licences appear to me to be similar in their nature to the profits
which were suggested in Great Eastern Ry. Co. v. Hackney
Board of Works (1) as possible to be earned by the letting of
the parapet walls for advertisements. At all events, the letting
for grazing purposes mentioned in the case does not, in my
judgment, constitute a letting at a rack rent. Still less can
this be said of the arrangements under which some smail sums
amounting to 57. 19s. 6d. are paid in respect of licences granted
to adjoining owners to have gateways opening on the commons
with the view of preventing private rights being acquired by
them. There are, however, two buildings to be considered-
namely, the refreshment-room built on Tooting Beck Common
and the inspector's lodge built on Tooting Graveney Common.
Of these the former is the more important, first, because it is
(1) 8 App. Cas. 687.

situate on Tooting Beck Common, and, secondly, because it is let to a contractor at an annual rent of 301. Now, if this building abutted on the new street, I should, as at present advised, feel some difficulty in holding that the London County Council were not liable to contribute in respect of it. In fact, however, it is situate at a considerable distance from the new

C. A.

1903

LONDON

COUNTY

COUNCIL

v.

WANDSWORTH

BOROUGH

COUNCIL.

street and on a different part of the common. In the present case the London County Council are sought to be made liable, Stirling L.J. not in respect of this building as the owners of a house under s. 105 of the Metropolis Management Act, 1855, but in respect of a portion of the common free from any building and as owners of land bounding or abutting on a new street under s. 77 of the Act of 1862. The existence of the building can only be, and (I assume) is, justified as being "necessary for the maintenance or management of the common or recreation ground." If it be true, as I think, that the portion of the common which abuts on the new street is incapable of being let at a rack rent, I do not see that the case is altered because the London County Council have for the purpose just mentioned seen fit to erect on another part of the common a building which is capable of being so let. For the like reason, the existence of the lodge on Tooting Graveney Common does not appear to me to create a liability on the part of the London County Council. On the whole, I arrive at the conclusion that the appeal ought to be allowed.

MATHEW L.J. read the following judgment:-I cannot agree with the Divisional Court in the interpretation put in the case of Fulham Vestry v. Minter (1) upon s. 250 of the Metropolis Management Act, 1855. I do not think that the county council were owners of the land in question, nor were the moneys received by them a rack rent, within the meaning of the section. The county council had the legal estate in the land, which was vested in them for the perpetual use thereof by the public for exercise and recreation, and the erection thereon of such buildings and appliances as they might think requisite for those and the like purposes. They were in fact (1) [1901] 1 K. B. 501.

C. A.

1903

LONDON
COUNTY
COUNCIL

v.

WANDSWORTH
BOROUGH
COUNCIL.

Mathew L.J.

for those ends the custodians and managers of the property. The premises could not be let at a rack rent, and could not be profitably occupied by the county council. Their tenure meant, as is shewn by the figures stated in the case, not income, but expenditure.

Sect. 250, it seems to me, was intended to describe persons who had, or who represented, proprietary rights in premises abutting upon a street. The charge for the improvements in question might properly be imposed upon such persons because the value of their interests was likely to be enhanced by the outlay. I do not think that the definition was intended to include imaginary or hypothetical owners. So far as the county council was concerned, the land by Act of Parliament was rendered sterile and deprived of any commercial value.

I am also unable to concur in the view that the moneys paid to the county council ought to be regarded as the best rent which could be obtained, and therefore amounted to a rack rent. The small sums received from the structures and appliances which the county council were empowered to provide bore no relation to the intrinsic value of the land. They have the character of the land upon which they stand. like the land, devoted to the public purposes intended to be served. With respect to the receipt for herbage, it was necessary that the grass should be kept down, and this purpose was served by letting it to be grazed by sheep. This was probably a more economical process than mowing the grass from time to time and carting it away.

I think the appeal must be allowed.

Solicitor for appellants: W. A. Blaxland.

They are,

Appeal allowed.

Solicitors for respondents: W. W. Young, Son & Ward.

E. L.

[IN THE COURT OF APPEAL.]

ANGEL v. MERCHANTS' MARINE INSURANCE

COMPANY.

Insurance (Marine)—Constructive Total Loss-Policy on Ship-Cost of
Repair-Value of Wreck.

By a policy of marine insurance a ship thereby insured was valued at 23,000l., and that sum was to be taken to be the "repaired value,” in ascertaining whether the vessel was a constructive total loss. The ship ran upon rocks off the coast of Sicily, and the owner thereupon gave notice of abandonment, which was not accepted by the underwriters. A salvage association, acting by the consent, and for the benefit, of all parties concerned, got the ship off, and she was temporarily repaired, so as to enable her to be brought to an English port. The shipowner having brought an action on the policy, claiming as for a constructive total loss, the judge at the trial found that, if the ship were permanently repaired, the total cost of repairs would amount to 22,5597., and he refused to take into consideration the value of the wreck. He therefore held that there was not a constructive total loss of the ship:

Held (by Vaughan Williams L.J., Stirling L.J., and Mathew L.J., the first mentioned doubting), that the shipowner was not entitled to add the value of the wreck to the cost of repair, in determining whether there was a constructive total loss of the ship.

Dictum in Young v. Turing, (1841) 2 Man. & G. 593, at p. 601; 58 R. R. 477, 484, not followed.

APPEAL from the judgment of Bigham J. in an action tried by him without a jury.

The action was brought by the plaintiff, as owner of a steamship, claiming as for a constructive total loss of the ship (1), upon a policy of marine insurance, whereby the defendants insured the ship for a period of twelve months from July 17, 1900, against perils of the sea. By the policy the ship was valued at 23,0007., and it was provided that the insured value should be taken as the "repaired value" in ascertaining whether the vessel was a constructive total loss. In March, 1901, the ship ran upon rocks on the coast of Sicily. The owner thereupon gave notice of abandonment, which the underwriters did (1) The action included other claims not material for the purposes of this report, in respect of some of which

Bigham J. gave judgment for the
defendants, and others were referred
to an average adjuster.

C. A.

1903 March 19, 20,

24; April 7.