evidence, it is amply shown that here there is both a public and a private nuisance. The Keighley and Kendal Road is certainly vested in the county council by sect. 11, sub-sect. 6, of the Local Government Act 1888; and the effect of this is shown in

Mayor of Tunbridge Wells v. Baird (74 L. T. Rep. 385; (1896) A. Č. 434), where Lord Herschell says: "It seems to me that the vesting of the street vests in the urban authority such property, and such property only, as is necessary for the control, protection, and maintenance of the street as a highway for public use." The county council have, therefore, no power to break up the soil, and cannot authorise the tramway crossing:

Goodson v. Richardson, 30 L. T. Rep. 142; L. Rep. 9 Ch. App. 221;

Salt Union v. Harvey, 61 J. P. 375. Finally, the agreement relied on by the defendants as made between them and the county council should be under seal; and there is no evidence to show that the resolution of the highways committee to permit the gauge to be increased was reported to the council in accordance with sect. 82 of the Local Government Act 1888.

Younger, Q.C. and Stewart Smith for the defendants. It is contended by the plaintiffs that a tramway crossing is primâ facie a nuisance; but that assumption is rebutted by Matson v. Baird (39 L. T. Rep. 304; 3 App. Cas. 1082). It is, moreover, to be remembered that the tramway relieves the neighbouring lanes from heavy cart traffic; so that on the whole there is a benefit to the public. To give permission to construct tramway crossings is incident to the control of highways vested in local authorities by the Local Government Acts of 1888 and 1894. As regards the objection that the agreement with the county council is not under seal, it is sufficient that there has been part performance by the defendants:

Mayor of Kidderminster v. Hardwick, 29 L. T.
Rep. 612; L. Rep. 9 Ex. 13:

Melbourne Banking Corporation v. Brougham, 40
L. T. Rep. 1; 4 App. Cas. 156;

Mayor of Oxford v. Crow, 69 L. T. Rep. 228; (1893)
3 Ch. 535.

So far as the allegation of a private nuisance is concerned, there must be proof of special and particular damage to the relators:

Winterbottom v. Lord Derby, 16 L. T. Rep. 771; Reg. v. Metropolitan Board of Works, L. Rep. 4 Q. B. 358;

Benjamin v. Storr, 30 L. T. Rep. 362; L. Rep. 9 C. P. 400;

Caledonian Railway Company v. Walker's Trustees, 46 L. T. Rep. 826; 7 App. Cas. 259.

Hughes, Q.C. in reply.

FARWELL, J. (after stating the nature of the action, said :)—Now, first of all, this is a question of fact. Is this, or is it not, a nuisance of which the Attorney-General, on behalf of the public, is entitled to complain? That is a question of fact, because I cannot quite accept Mr. Hughes' ingenious suggestion in reply that I should regard this as forbidden by statute so as to say I cannot grant an injunction irrespective of any nuisance being proved. I am not aware of any case that has gone that length, and I think I should be bound to take the view that the common law courts have taken in cases of indictment, and to decline to grant a mandatory injunction if I find

[CHAN. DIV.

this was in fact no nuisance. Now, I propose to give myself the same direction which the learned judge, Martin, B., gave to the jury in the case of Reg. on the Prosecution of Baron Lionel De Rothschild v. United Kingdom Electric Telegraph Company Limited (6 L. T. Rep. 378; 3 F. & F. 732). The particular proposition which his Lordship put to the jury is this, and the court held this was a proper and right direction: "That a permanent obstruction erected on a highway, placed there without lawful authority, which renders the way less commodious than before to the public, is an unlawful act and a public nuisance at common law; and that if the jury believed that the defendants placed, for the purposes of profit to themselves, posts with the object and intention of keeping them permanently there in order to make a telegraphic communication between distant places, and did permanently keep them there, and the posts were of such size and dimensions and solidity as to obstruct and prevent the passage of carriages and horses or foot passengers upon the parts of the highway where they stood, the jury ought to find the defendants guilty upon this indictment; and that the circumstances that the posts were not placed upon the hard or metalled part of the highway, or upon a footpath artificially formed upon it, or that the jury might think that sufficient space for the public traffic remained, are immaterial circumstances as regards the legal right, and do not affect the right of the Crown to the traffic." That seems to me to be a most valuable direction, which I avail myself of in the present case. Now, the evidence of twenty witnesses who do not feel something is really of very little importance in a matter of this sort as compared with the evidence of half a dozen people who do, except for the purpose of discrediting the testimony of the six who do. [His Lordship then reviewed the evidence, and held that each of the crossings was proved to be a nuisance.] Now then as regards the law. It was argued by Mr. Younger and Mr. Stewart Smith that here they had got the sanction of the county council. First of all as regards Rarber Top Lane. The only evidence of any sanction produced to me was certain oral testimony as to a resolution that had been passed by the district board and a letter from the clerk of the Settle Rural District Council of the 27th April 1898, which is this: "Dear Sir,-Your letter of the 25th March last asking for the permission of the above council to the laying of a tramway across Rarber Top Lane, Ingleton, has been laid before the above council. In reply, I am directed to state that the council, so far as they have power to do so, assent to your application, but their assent must be taken as being limited to a period of five years from the 8th inst. I doubt very much if it has been proved in accordance with the rules of this court that any sanction has in fact been given as regards Rarber Top Lane. With regard to the Keighley and Kendal Road the evidence is in a most curious condition. As long ago as last May the defendants were challenged by the plaintiffs to prove (what they said they would not admit) that an agreement had been executed by the county council authorising this tramway to be laid. That has been disregarded; but at the last moment, under a subpoena, the resolutions have been brought up and put in evidence, to some extent giving the leave on which Mr. Younger relies.

The actual agreement has not in fact been sealed by the county council down to this date, and although, as I have said before, in May the defendants were challenged, they did not admit it was ever executed. Of course, if the county council are bound to execute the agreement, it makes no difference. On the evidence as it stands, I am left with this unsatisfactory condition of things. There was a delegation of authority to the highways committee by the county council in March 1889. No evidence has been produced to me of any resolution complying with the provisions of the 82nd section of the Local Government Act of 1888, under which that committee could have powers given to them to act without referring back to the county council; and if they had not got those powers, and it has not been proved that they had, then the final resolution of the highways committee of the 27th Feb. 1899, under which the actual 44ft. rails had been laid, has never even yet been duly reported to the county conncil. I am not, therefore, convinced that the defendants have proved that they ever have got the sanction which they say they have. But I pass that by and assume, for the sake of argument, that they have got it. Then it is said that the county council have power to authorise this, although in fact it is found by the court to be a nuisance. In my opinion they have no such power. They are given the management of the roads in the same way that the highway authorities used to have it, and under the Local Government Act of 1888, sect. 11, to some extent the soil is vested in them. In my opinion Parlia ment has vested the soil of the roads in them quá roads, and simply to the extent necessary for the purpose of preserving and maintaining and using them as roads. There is nothing that I can see that would justify the county council in allowing the destruction of the road in toto. If they cannot allow it in toto, then they cannot, in my opinion, allow it to some less degree which the court finds in fact to be a nuisance. Then Mr. Younger relied on the case of Matson v. Baird (ubi sup.). That was a Scotch case, and it was not a case in which the Crown was interfering in any way. It was simply a case in which the owner of land sought to obtain damages for an injury done to a horse by reason of the neglect of a company which had got permission from the road authorities to lay a railway across the road. That was by reason of their omission to put up gates. The point decided was that the provisions in the Railway Acts requiring gates to be put up did not apply to a case of that sort, because it was said by Lord Cairns that the surveyor of highways, when he gave permission to lay down the rails, could have imposed any conditions he thought fit, and, therefore, it was absurd to suppose that statutory provisions as regards railways generally applied. It involved no question of nuisance at all. The actual soil was disturbed by the putting down of the rails. That soil being vested in the local authority, it would be a wrongful act to disturb it at all without the permission of the local authority; that is made so under the Highway Act referred to by Mr. Hughes-the Act of George III. The local authority gave that permission, and whether the crossing was a nuisance or not did not arise. They gave that permission to enable that to be done which would otherwise be a trespass, and

[CHAN. DIV.

they could impose any conditions they liked, as Lord Cairns said. The decision goes no further than that, and, if it were necessary to find another reason for this view that I take, it is found in Lord Blackburn's speech, which was relied upon by Mr. Younger for another purpose, when he says that a tramway across a highway is not necessarily a nuisance; that is, that putting down rails across the highway would not necessarily be a nuisance. That shows obviously that they were not considering the question of nuisance at all. The House of Lords were not saying, "This is a nuisance which has been authorised by the local board." They were saying, "This is only a trespass which the local board have authorised; they have not imposed conditions which they might have imposed." The question of nuisance arises because, as a matter of law, rails across a highway are not necessarily a nuisance; but it is a question of fact to be proved in each case. That was not raised or proved in Matson v. Baird. I entirely assent, of course, to Lord Blackburn's view that it is a question of fact in each case. There is no doubt that what his Lordship meant by his reference to the county of Durham was that it depends not only on the actual evidence in each case, but also to some extent on the locality; and for that reason I have adverted to the fact in my judgment that this is a country district, and I add, on the evidence, that there is not another tramway or level crossing within ten miles. What his Lordship had in view in the Scotch case was the coal district of Durham, where you frequently find tramways from pits intersecting the roads all over the country, so that it is a matter to which the people in the district are well accustomed, and it comes within the case, the name of which I forget, where James, L.J. used the phrase, "What would be a nuisance in Belgravia would not be a nuisance in Bermondsey." Therefore, so far as regards this power claimed by the county council, I hold that they had no authority to grant a licence to commit a nuisance. Then it is said that in this case the advantage to be derived from the relief to the highway at the top of Enter Lane compensates for any inconvenience, or makes the tramway more beneficial to the public, by relieving the highway from the ruts that used to be made at Enter Lane. That, to my mind, is disposed of by the case of Reg. v. Train (ubi sup.). This is really, to begin with, an attempt to give one individual a right for his own convenience to use the highway in a particular and non-natural manner. I cannot myself distinguish, except on the question of degree, between laying rails across a high road and laying rails along it. In each case you do interfere with the highway for the benefit of one class of persons, and one class only. In the case of Reg. v. Train the rails were laid lengthwise, whereas in this case they are laid across. As was said in that case it is withdrawing so much of the highway from its ordinary use as such; for it is idle to say that you can use as an ordinary part of the highway the portion taken up by the tramway. When I have once found it is a nuisance in the way I have, Reg. v. Train applies to the present case. You cannot set off any convenience that may be derived with regard to the user of another part of the road any more than you could in that case the benefit that you derive from running omnibuses on rails as distin

guished from running omnibuses on macadam and wearing out the road. That disposes of the permission said to have been given by the county council; and, I think, disposes of the case so far as regards the Attorney-General. Now, as regards the relators it is said that, even if I acquiesced in the prayer on behalf of the Attorney-General, I ought to dismiss the action, so far as it is the relators' action, not as relators, but as plaintiffs in person, because they have not shown any special damage. I agree that the plaintiff who sues in his own right must show that he has suffered some injury. It is to be observed in the present case that they have not asked for damages and have not throughout asked for damages. They are claiming, and it is difficult to see as they do not ask for damages why they thought it necessary to claim, an injunction; but they are claiming, in addition to the AttorneyGeneral, the right to have themselves an injunc tion. If the Attorney-General had not succeeded, I do not see how the relators could have succeeded; but I am not prepared to hold on the evidence I have heard that there is not sufficient interest in the relators to justify a complaint by themselves in their own right, by reason of the special damage which they suffer. Without say. ing that the one or the other would be sufficient by itself, I think the accumulation of the injury caused to the relators first of all by the depreciation, which I hold has been proved, in the value of their land as building land; and, secondly, the inconvenience caused to them of not being able to use with safety the access to their front gate, so that they would have to go round and use the less convenient back gate-whether that would be sufficient or not, I say nothing; but, taken in conjunction with the other, I hold there is sufficient interest in the plaintiffs to justify their joining as co-plaintiffs with the Attorney-General. It really is a matter of very little importance except on the question of costs, and probably if I had dismissed the action, which I do not intend to do as regards the relators, I should not have given any costs against them. In my opinion, there is sufficient to justify the action, and therefore I hold they are entitled to succeed in their own special right and obtain an injunction as well as the Attorney-General. That being so, I think I have disposed of all the points raised in the action, and the injunctions as asked seem to me to be in the right form, except that as regards the second the words "so as to create a nuisance" must be added. I can only express my regret that I have to make an order which does impose expense and loss upon the defendants; but, in answer to that, I must give effect to the legal rights which I hold exist in the Attorney-General, suing on behalf of the Crown, and the relators. There is this also to be said, that complaint was made before action, and before the siding was completed, and the defendants chose to go on at their own risk and complete this, even pending an interlocutory motion to restrain them. That being so, I see no ground whatever for refraining from making the mandatory injunction as asked, and the plaintiffs must have the costs of the action.

Solicitors for the plaintiffs, Ridsdale and Son, for W. Hartley, Settle; for the defendants, Gibson, Weldon, and Bilbrough, for H. J. J. Thompson and Co., Lancaster.

QUEEN'S BENCH DIVISION.

Tuesday, May 15, 1900.

(Before RIDLEY and BIGHAM, JJ.) BROWN AND CO. LIMITED (apps.) v. ASSESSMENT COMMITTEE OF THE ROTHERHAM UNION AND CHURCHWARDENS AND OVERSEERS OF THE PARISH OF DALTON (resps.). (a)

or

Rating-Coal mine-Gross and rateable values— Underground roads and airways-Expenses of keeping in repair Working expenses "repairs "-Deduction of, from gross valueParochial Assessments Act 1836 (6 & 7 Will. 4, c. 96), s. 1.

In rating a coal mine to poor rate the annual expenses properly incurred in keeping in repair the permanent main underground roads and airways-their maintenance in proper repair being necessary to maintain the coal mine in a state to command the rent-are not working expenses of the mine, but are "repairs" within the meaning of sect. 1 of the Parochial Assessments Act 1836, and are, therefore, under that section, to be deducted from the gross estimated rental in arriving at the rateable value on which the rate is to be made.

A coal mine extended underground into the parish of D., the shafts or pits for raising the coal being in another parish and not in the parish of D. The part of the mine in the parish of D. consisted of the permanent main roads for conveying the coal from the working places to the shafts, the permanent main airways for ventilating the mine, the working places at the face of the coal, and the temporary roads. The owners of the mine, who under their lease paid a royalty rent for the coal obtained, incurred an annual expenditure in keeping in repair these permanent main roads, airways, &c., and such expenditure was necessary to maintain the mine in a state to command the rent.

Held, that, in rating that part of the mine which was within the parish of D., the expenses so incurred in keeping in repair the permanent roads, airways, &c., were "repairs," and were to be deducted from the gross estimated rental in arriving at the rateable value.

CASE stated by the Quarter Sessions for the West Riding of the County of York held at Sheffield on the 30th June 1899.

Upon an appeal by the appellants, John Brown and Co. Limited, against a certain rate or assessment made for the relief of the poor of the parish of Dalton within the Union of Rotherham on the 9th May 1898, as follows:

Name of occupier, John Brown and Co. Limited;
Name of owner, John Brown and Co. Limited;
Description of property, coal mine;

Name or situation of property, Aldwarke;
Gross estimated rental, 8841.;

Rateable value of building and other hereditaments, 8841.;

on

which appeal came for hearing at the general quarter sessions of the peace held at Sheffield for the West Riding of the County of York, upon hearing counsel for both parties, the court allowed the appeal, and ordered the rateable value of the hereditaments to be reduced from 8841. to 3561., subject to this special case. The appellants were the owners of a certain (a) Reported by W. W. ORR, Esq., Barrister-at-Law.

Q.B. Div.]

coal mine situate within the Rotherham Union, and known as the Aldwarke Main Colliery. The shafts or pits for raising the coal worked in the coal mine were situate in the parish of Rawmarsh in the union, but the coal mine extended underground into several other parishes within the union, and, amongst others, into the parish of Dalton.

The part of the coal mine within the parish of Dalton and occupied by the appellants consisted of (1) the permanent main roads which must be maintained so long as there is any coal left to be got within their area or district, or for so long as the coal mine is worked, as the circumstances may require, and many of which are laid with rails for the purpose of conveying the coal when gotten to the shafts; (2) the permanent main airways which must also be so maintained and which are necessary for the ventilation of the mine, and without which the mine could not be worked at all; (3) the working places at the face of the coal at which the coal is hewn or gotten, and for which coal a rent or royalty is paid according to the terms of the lease and according to the quantity gotten per annum; (4) the temporary roads or gates" leading from such working places to the permanent main roads. The appellants did not occupy, and they were not rated for, any surface land, surface plant, shafts, buildings, or machinery within the parish of Dalton.

After the making of the rate the appellants, having made objection to the same, duly served the respondents with notice of appeal against the rate, which notice was annexed to this

case.

Prior to the hearing of this appeal the appellants on the 8th June 1899 gave notice to the respondents that they would, for the purposes of this appeal only, accept as correct the abovementioned gros estimated rental of the hereditaments-namely, 8841.-and that they would claim that deductions should be made therefrom in order to arrive at the rateable value of the same, as claimed in their notice of appeal, namely, that the deductions required by law, particularly by sect. 1 of 6 & 7 Will. 4, c. 96, and sect. 15 of 25 & 26 Vict. c. 103, to be made from the gross estimated rental of the hereditaments have not been sufficiently or correctly made.

Upon the hearing of the appeal the above gross estimated rental was therefore admitted, and it was claimed that the sum of 5281. should be deducted therefrom in order to arrive at the true rateable value.

It was proved before the justices that the appellants had incurred an annual expenditure to that amount in keeping in repair the permanent main roads and permanent main airways in that part of their coal mine within the parish of Dalton, and it was also proved that the maintenance in proper repair of these permanent main roads and permanent main airways as parts of these roads was necessary to maintain the coal mine in a state to command such gross rent.

The appellants contended that they were entitled to deduct the above sum of 5281. in order to arrive at the rateable value, as they contended that the hereditament in their occupation and called coal mine" in the rate comprised and consisted of these permanent main roads, permanent main airways, temporary roads or gates, and working places in this parish, and that

66

it would be impossible to work the coal mine and get coal therein without incurring this expense in maintaining the hereditament in a state to command the said gross rent.

The respondents admitted that some such expense was necessarily incurred, but contended that the above-mentioned sum was not a proper deduction in law, as the hereditament called "coal mine in the rate comprised merely the seams of coal and the working places and not the roads or approaches thereto, and that the rental paid to the landlord of the mines was only for the right to win and get the coal, and that in connection with such hereditament there were no repairs or other expenses which could be made the subject of deduction under the statutes.

It was further contended by the respondents that, even if the rated hereditament comprised such roads or approaches within the parish, the cost of maintaining them was an ordinary trade expense connected with the working of the coal mine, and not of the nature of repairs to the hereditament or other expense capable of deduction under the statutes, and that such cost would be taken into consideration and deducted before the royalty could be fairly ascertained.

The justices in quarter sessions held that the above-mentioned sum was a proper deduction in law, and they allowed the appeal, and ordered the rateable value appearing in the rate-book to be reduced to 3561. No question of amount was involved in this special case, as, if the above sum of 5281. is a proper deduction in law, the amount fixed by the justices was to be deemed correct; but, if such expense could not legally be deducted, the gross estimated rent and the rateable value in the rate would be the same.

If the court should be of opinion that the above deduction is not a proper deduction in law the order of quarter sessions was to be quashed; if, on the other hand, the court should be of opinion that the deduction is a proper deduction in law the order is to be affirmed.

The Parochial Assessments Act 1836 (6 & 7 Will. 4, c. 96) provides :

Sect. 1. No rate for the relief of the poor in England and Wales shall be allowed by any justices, or be of any force, which shall not be made upon an estimate of the net annual value of the several hereditaments rated thereunto: that is to say, of the rent at which the same might reasonably be expected to let from year to year, free of all usual tenant's rates and taxes and tithe commutation rentcharge, if any, and deducting therefrom the probable average annual cost of the repairs, insurance, and other expenses, if any, necessary to maintain them in a state to command such rent. vided always that nothing herein contained shall be construed to alter or affect the principles or different relative liabilities, if any, according to which different kinds of hereditaments are now by law rateable.

Pro

The Union Assessment Committee Act 1862 (25 & 26 Vict. c. 103) provides:

Sect. 15. The gross estimated rental for the purpose of the schedule to this Act shall be the rent at which the hereditament might reasonably be expected to let from year to year, free of all usual tenant's rates and taxes and tithe commutation rentcharge, if any. Provided that nothing herein contained shall repeal or interfere with the provisions contained in the first section of the said Act (6 & 7 Will. 4, c. 96) defining the net annual value of the hereditaments to be rated.

Q.B. Div.]

Hugo Young, Q.C. (Disturnal with him) for the Rotherham Union.-The quarter sessions were wrong in altering the rating and in allowing the deduction for repairs. Our first contention before the justices, that "coal mine" comprised merely the seams of coal and the actual face of working, seems to be disposed of by the finding of the justices that the part of the coal mine in this parish consisted of the permanent roads, airways, &c., and that contention we do not now put forward. The sole question, therefore, is as to the repairs, and the point is whether, in the rating of a coal mine in a case of this kind, there must necessarily be a deduction from the gross estimated rental so as to arrive at the rateable value. In the parish here interested there were no external works, no shafts or engines; there was merely the coal which was being gotten and the underground roads leading to that coal. Ordinarily there is a deduction from the gross estimated rental-in the words of the statuteof the "repairs, insurance, and other expenses necessary to make the property continue to command the rent, and the result is the rateable value, and it could not be contended that if there were such repairs they ought not to be deducted. If there were no such repairs they ought not to be deducted. The only question, therefore, is whether these expenses in repairing the underground roads, &c., are "repairs "within the meaning of the Act, or are mere working expenses. We contend that they are not repairs such as are contemplated by the statute, but are simply working expenses of getting the coal, and ought not to be deducted from the gross value. Ordinarily where there is a tenant who pays the rent, the landlord doing the repairs, the gross rental would be the rent the tenant pays, and from that there would be deducted the cost of the repairs by the landlord, and the difference would be the rateable value. If the tenant does the repairs, then the rent paid by the tenant would be not only the gross but the rateable value as well, because the tenant in fixing his rent pays so much less on account of having to do the repairs, so that where the tenant does all the repairs-as in this case-the rent is the rateable value, and if the repairs were deducted from the rent they would be twice deducted. That is the present case, as the tenant of the mine does all the repairs and knows he has to do them as the landlord cannot go underground to do them, and therefore the rateable and gross values are the same, being in fact the rent paid, and as a matter of convenience the rating authority take that rent as the gross value, and say that from that there is to be no deduction in fixing the rateable value. A coal mine is not like a house; it has not to be rebuilt or repaired; there cannot be repairs, though there may be expenses in keeping the approaches in an accessible state. For rating purposes it is similar to a farm, where, taking the surface of the land itself, there can be nothing in the nature of repairs. The hedges have to be cut, the ditches kept open and cleaned, and so on, but these things are not repairs; they are part of the working expenses of the farm. So in the case of a mine the surface of the roads upheaves, the roofs fall in, and the roads get out of order and have to be swept, and the expense of putting them right is part of the working

66

expenses of the mine. [BIGHAM, J.-The case finds that the tenant made an annual expenditure in keeping "in repair" these main roads as part of the mine. Having regard to the questions left to us, we must find whether these expenses are repairs " or not. A road is made by taking that coal out. The working expenses of getting that coal out are then at an end. There are no more working expenses there, but for the purpose of the coal mine it may be necessary that the road so made should be kept in repair for the purpose of haulage or for other purposes. Then how can it be said that the keeping in repair of that road is part of the working expenses? The tenant is working nothing there; he is working coal somewhere else, and is hauling that coal along that road, but in order to do it properly he has to keep that road in repair. The statute says that no rate shall be allowed unless made on the net annual value, and that you are to arrive at that by deducting certain things from the gross estimated rental, but the rating authority want to make it upon what they themselves call the gross estimated rental.] These expenses are part of the working expenses in this sense, that to get the coal at the far end you have to incur this expense somewhere else in keeping the roads in repair. By the Rating Act 1874 (37 & 38 Vict. c. 54), s. 7, in the rating of tin, lead, and copper mines, the gross and rateable values are to be the same. It is the simplest way of calculating the rate, as it is done in practice, to take what the tenant doing the repairs pays, and put that down as both rateable and gross value. If as a fact these things were repairs contemplated by the statute we agree that they ought to be deducted, but we say they were not repairs, and that the deduction was improperly made.

Tindal Atkinson, Q.C., Boyle, Q.C., and Joseph Shaw for the appellants, Brown and Co., were not called upon to argue in support of the order of quarter sessions.

RIDLEY, J.-I do not think that this case raises any general question, and it is possible, as counsel for the rating authority stated to us, that there has been some error in putting down the gross estimated rental at the figure of 8841., instead of at a higher figure. That, however, being the gross estimated rental and being admitted to be so, the question now arises whether the expenses to which the tenants of the mine are put in order to maintain the roads and keep the hereditament in perfect condition so that it shall command the rent, are repairs or working expenses. Now, there is a difference between repairs and expenses. Repairs are expenses, but expenses are not repairs. The sums expended here were expended in maintaining and keeping in repair the roads and so on, and were repairs. It is said that these expenses would have included the cost of sweeping these roads, which it was argued would be working expenses and not repairs. I think the sweeping of such roads cannot fairly be called repairs; but the paragraph in the case to which my brother Bigham alluded seems to me to show that " annual expenditure" is used so as to mean "expended in keeping in repair the said roads and airways," and so forth. Surely we must take that phrase as meaning what it says as to keeping in repair. I do not think it can be said that expenditure to this amount has been incurred in sweeping the