Bowles v. CloughBowles v. Clough
Nоn-resident real estate, though in the actual occupancy of the owner, cannot be legally taxed directly to such owner, unless he consents to be taxed therefоr according to the provisions of
TRESPASS, for taking the plaintiff’s cow.
The plaintiff was possеssed of a farm partly in Lisbon and partly in Lyman. The plaintiff’s house was on that part of his farm situated in Lisbon. The plaintiff came into possession of this farm, so as to be taxed for it for thе first time, in the year 1873, which is the tax in question. Previous to that time that part of the farm situated in Lyman had been taxed to the occupant of the farm, and paid without objection. The tаx in question was assessed by the selectmen of Lyman directly against the plaintiff as a resident of Lyman, without giving any notice thereof to him. The defendant was one of the selectmеn who assessed said tax. Said selectmen issued a warrant for the collection of said tax under and by virtue of which the defendant, as collector of taxes for said town of Lyman, took the cow in question and detained it until the plaintiff paid him said tax. The questions of law arising on the foregoing agreed statement of facts were transferred at the September term, 1874, by LADD, J., for the opinion of this court.
Carpenter, for the plaintiff.
H. Bingham, for the defendant.
LADD, J.
Could the plaintiff’s land in Lyman be legally taxed in any other way than as non-resident, upon the facts stated in the case? I think not. The defendant says it might be legally taxed to the owner, under
I think no such prohibition is to be found in that section, or anywhere else in the statute, and I have been unable to find anything which authorizes the assessment of the tax upon this land against the plaintiff as a resident, when in fact he was not a resident, and did not consent that it should be so taxed, so as to bring it within the provision of section 11, quoted above. Upon the facts stated, I think the plaintiff is entitled to recover.
CUSHING, C. J.
“1. Every person shall be taxеd in the town in which he is an inhabitant or resident on the first day of April, for his poll and estate, except in cases otherwise provided by law.”
“11. Real and personal property shаll be taxed to the person claiming the same, or to the person who is in the possession and actual occupancy thereof, if such person will consent to be tаxed for the same; but such real estate shall be taxed in the town in which it is situate.”
“17. If no person is in possession or occupation of any building deemed by the selectmen to be tеnantable, or of any other real estate, improved as pasture, mowing, or arable, or otherwise, the same shall be taxed as non-resident by such description as it may bе readily known by, with the name of the owner, if known.”
The first section seems to be the key to the construction of this statute. It is the fundamental rule, and must control unless otherwise declared.
This bеing so, it would seem that sections 11 and 17 must be read as if the words “inhabitant of the town” were put in the place of “person.” It would have been an unnecessary repetition, interfеring with the much-desired brevity of expression, and in no respect altering the sense. Read in this way, as I think they must be, sections 11 and 17 are entirely consistent and intelligible.
By section 17, read in this way, if no inhabitant to whom the lаnd could be taxed were in the possession or occupancy, it must be taxed as non-resident by its description.
By
It is most likely that if the legislature had intended to authоrize the taxation of real estate directly to a non-resident, power would have been given to a collector, as in the case of personal propеrty so taxed, to distrain or arrest beyond the limits of his own town.
The three sections first quoted have been placed in juxtaposition for the purpose of making clear their cоnnection. It will, I think, be found on examination that none of the intervening sections are such as to have any effect on this construction.
The cases of Dewey v. Stratford, 42 N. H. 286, and Cocheco Manf. Co. v. Strafford, 51 N. H. 471, seem to me fully to confirm this construction оf the statute. I am therefore of opinion that the tax in question was unlawful.
SMITH, J. So much of the plaintiff’s farm as was situate in Lyman was taxed to him as resident, although he was not an inhabitant of Lymаn and did not consent to be taxed for the same. I find no provision of the statute that authorized this to be done.
When the owner is an inhabitant of the town where the land is situate, it must be taxed to him in such town.
Under section 11 it must be taxed in the town in which it is situate to the person claiming the same, or to the person who is in possession and actual occupancy thereof, if such person will consent to be taxed for the same.
Under section 16, in case a person not the owner is living upon the land and refuses to be taxed for it, it must be taxed as rеsident by the number of the lot, or such other description as it is commonly known by, with the name of the occupant as such.
Under section 17, if no person is in possession or occuрation of improved land, it must be taxed as non-resident by such description as it may readily be known by, with the name of the owner if known.
When the selectmen do not know who the owner is of any piece of land, they may tax it as non-resident. Nelson v. Pierce, 6 N. H. 194. Under the statute of July 7, 1827 (Laws of 1830, p. 556, sec. 10), lands in possession of an occupant could not be taxed as non-resident—Brewster v. Hough, 10 N. H. 138; but that statute provided that real estate should “be taxed to the person claiming the same, or to the person in the possession or actual occupancy thereof,” omitting the words “if such person will consent to be taxed for the same,” found in
Upon the case as stated I think the plaintiff ought to recover.
Case discharged.