308 Mass. 72 | Mass. | 1941
This is a petition to foreclose rights of redemption under certain tax titles, acquired by the petitioner in 1934, for nonpayment of the real estate taxes assessed for the year 1932 on ten parcels of real estate, of which the respondent was then and is now the owner of record. The case comes before us on the appeal of the respondent from the decision of the judge in which he ruled that the tax titles are valid, and ordered that the case stand for further hearing on the matter of redemption.
The first ground upon which the respondent bases its contentions that the tax titles involved are not valid is that no proper demand was made as required by G. L. (Ter. Ed.) c. 60, § 16. The material facts found by the judge which bear on this subject matter are these: The lands involved were acquired from the East Boston Company in 1928. In that year the East Boston Development Company was formed but almost immediately thereafter its name was changed to Boston Port Development Company. The address of the respondent and of its treasurer, Charles H. Gifford, for the year 1933 was “1 Court Street, Boston, Mass.” Gifford was also a director of the East Boston Company whose address during that year was “89 Broad Street, Boston, Mass.” The demand for payment of the amount due on the ten parcels of land was sent out by mail on July 3, 1933, by the then acting deputy collector, now chief deputy collector, of taxes for the city of Boston (John J. Connors), in a “window envelope” bearing a return address to which the demand, if undelivered, would be returned. A single demand for the ten parcels with the total amoimt due for all the parcels stated on its face and a statement of the amount due on each individual parcel set forth on its back, was mailed addressed to “Boston Port Development Company, c/o Charles H. Gifford, President, 89 Broad Street, Boston, Mass.” This address was obtained'from a card which was on file in the tax collector’s office bearing the notation, “East Boston Co., c/o Chas. H. Gifford, Pres., 89 Broad, Room 722” (Exhibit 2A). There was another card on file there which had at the top the notation “East Boston Co., Jos. Weeks, 16 State St.” and below, opposite
If the envelope containing the demand was not delivered, it would have been returned to Connors. It was not returned to him, and, accordingly, he prepared the information with reference to mailing the demand for the affidavit of another deputy collector. This affidavit in turn became the basis for that of the collector. In each affidavit it is stated that demand was made by mailing postpaid as hereinbefore set forth. The collector knew that the address of the respondent was “1 Court Street, Boston.”
The judge further found that the demand was not returned to the tax collector, and inferred and found that it was received by Gifford “who had charge of paying the taxes” of the respondent, “that when he received it he knew it was a demand on the . . . [respondent] for the payment of taxes assessed to it; that . . . [the respondent] was not substantially harmed or misled,” and ruled that the error or irregularity in the demand did not invalidate the tax titles.
The respondent contends that this conclusion of the judge is plainly inconsistent with the subsidiary facts found by him. We do not sustain this contention. The appeal
The parcels of land involved are part of a large tract of land owned by the respondent. Parcels 1, 2 and 3 he below high water mark and are classed as flats. The assessors in making all assessments for taxes for the year 1906 and in all subsequent years, with reference to lots 1 to 8 inclusive, followed the descriptions shown on a plan denoted in the assessments as the “E. W. Adanís” plan on file in the assessors’ office. A set of plans was and is on file in the assessors’ office entitled “East Boston Company, Edward P. Adams, C.E.,” on which may be found parcels 1 to 8 inclusive. The other two parcels may be found on a plan of Parkway lands owned by the East Boston Company by F. 0. Whitney, C.E., which is recorded with Suffolk County registry of deeds. A letter of E. P. Adams attached to the Adams plan,, addressed to an assessor, was received in evidence to show how and when that plan came into the possession of the assessors, but not to prove agency or to show that Adams had authority to bind the East Boston Company. All taxes due the petitioner on all ten parcels for the years prior to 1932 were paid without objection either by the East Boston Company or by the respondent.
The judge ruled that “the assessment was not illegal because of any improper or arbitrary division by the assessors into lots because the Edward P. Adams plan was filed in the assessors’ office by the predecessor in title of the Boston Port Development Company, the East Boston Company; taxes had been assessed in accordance with said plan on these parcels since 1906; and all taxes due the city of Boston for the years prior to 1932 had been paid without objection by either the East Boston Company or the Boston Port Development Company.”
The respondent also grounds its objection to the validity of the tax titles upon assertions that the descriptions of parcels 1 to 9 in the notices of tax sale were insufficient, and that the description in the tax deed of parcel 2 was insufficient. Material findings of the judge bearing upon these contentions follow. The notices of sale were published in the City Record on August 11, 1934. In the notice the parcels involved were not grouped but were listed separately, as were other parcels owned by the respondent not here in issue. With respect to lots 1, 3, 4, 5, 6, 7 and 8, in some instances there is a reference to the E. W„. Adams plan on file in the assessors’ office, while in others the reference is to "same plan.” Where reference is made in the notice as to any of parcels 1 to 8 to "same plan” the original notice which is before us discloses that preceding descriptions of other parcels not in dispute refer to the Adams plan. The description of parcel 9 referring to "same plan” is immediately preceded by a description of another parcel, then owned by the respondent, in which reference is made to the F. 0. Whitney plan. In each case other descriptive bounds are set forth.
The general principle is that the description in the notice and deed must be a substantially accurate one; it is enough if it fairly designates the property for the information of those interested. Franklin v. Metcalfe, 307 Mass. 386, 389, and cases cited. G. L. (Ter. Ed.) c. 60, § 40. Ordinarily the question whether the description is sufficient is a question of fact for the judge. Boston v. Lynch, 304 Mass. 272, 275, Upon the facts found by the judge and the reasonable inferences of which they are susceptible, no error of law appears in his conclusion that the descriptions in question were substantially accurate.
The respondent's only other ground of objection is that the assessments of parcels 1, 2 and 3 were illegal "on account of the fact that each of said parcels is land located between high water and low water', generally called flats.” The judge ruled that these parcels were not exempt from taxation. The respondent concedes that it owns the fee in the flats in question, but argues that the land is held under so many restrictive conditions that its ownership is illusory, urging that since the land is under water twice daily and the public has rights of navigation, fishing and fowling therein, and no structures can be erected, nor excavations made upon the flats, without the permission of both State
It is settled, however, by the Colony ordinance 1641-7 that the owner of uplands bounding on the sea has an estate in fee in the adjoining flats above low water mark and within one hundred rods of the upland, subject, however, to the reasonable use of other proprietors and of the public for the purposes of navigation, fishing and fowling, and subject also to such restraints and limitations of the proprietor’s uses, including those of erecting wharves and other buildings thereon, as the Legislature may see fit to impose for the preservation and protection of public and private rights. Commonwealth v. Alger, 7 Cush. 53. Commonwealth v. Roxbury, 9 Gray, 451. The owner of the upland and shore property may convey one and retain the other, or may convey each independently. Henry v. Newburyport, 149 Mass. 582. Castor v. Smith, 211 Mass. 473. “Except as against public rights, which are protected for the benefit of the people, the private ownership is made perfect.” Butler v. Attorney General, 195 Mass. 79, 83. This court has heretofore, in many cases, and at some length, considered the various incidents of ownership of shore property and pronounced it to be ownership of a substantial nature. See Commonwealth v. Roxbury, 9 Gray, 451, and note at pages 518, 519, 520, and cases cited; Jubilee Yacht Club v. Gulf Refining Co. 245 Mass. 60, 63. It is established that the ownership by the respondent of the fee in the flats involved is of a substantial nature.
All real property in this Commonwealth, unless expressly exempt, is subject to taxation under G. L. (Ter. Ed.) c. 59, § 2. By § 5, Second, it is provided that there shall be exempt from taxation “Property of the commonwealth, except . . . lands in Boston known as the commonwealth flats, if leased for business purposes”; and by § 11 that “Taxes on real estate shall be assessed, in the town where it lies, to the person who is either the owner or in possession thereof on April first.” (See now St. 1933, c. 254, § 29; St. 1936, c. 92; St. 1939, c. 175.) The only references to
By St. 1909, c. 490, Part I, § 12 (not incorporated in General Laws because deemed a special act, Grasselli Chemical Co. v. Assessors of Boston, 281 Mass. 79, 81) it is provided that the Commonwealth Flats, so called, in Boston, shall, if leased for business purposes, be taxed to the “lessees thereof, respectively, in the same manner as the lands and buildings thereon would be taxed to such lessees if they were the owners” thereof. In the case just cited it was held that the tract (flats) assessed was not exempt from but subject to taxation, and that taxes on real estate may be assessed to the person who is in possession thereof on the date- fixed for assessment, as well as to the owner at that time. G. L. (Ter. Ed.) c. 59, § 11. Since there is no express exemption from taxation in the statutes of flats other than those owned by the Commonwealth not leased, permitted or licensed for use by others, it is obvious that there is no express exemption of the respondent’s flats from taxation. That the use of such lands held by the respondent is subject to regulation by State and Federal authorities does not operate to exempt them from taxation. It has already been pointed out in very many decisions of this court that, while the Legislature may impose such restraints and limitations on the use of flats by their proprietors, yet the ownership is one of a substantial nature and, except as against public rights which are protected for the benefit of the people, the private ownership is perfect. In the imposition of restraints and limitations upon the use of flats by their proprietors it is to be assumed that public
The ruling of the trial judge that parcels 1, 2 and 3 are not exempt from taxation was right. No question is raised by the respondent’s requests for rulings which were denied by the judge that is not disposed of by what has been said.
Decision affirmed.