120 N.J. Eq. 136 | N.J. Ct. of Ch. | 1936
This is a foreclosure of a tax lien. Defendant Building and Loan Association owns a lot of land adjoining the rear of the lot described in complainant's tax sale certificate. The association's parcel does not touch any highway, but appurtenant to it is an easement of way across complainant's lot, the only access to the property in the rear. Complainant joins the association as a defendant in order to cut off its right of way. The association contends that the servient tenement was assessed and sold at the tax sale subject to the right of way — although the easement was not expressly excepted — and that the easement is not subject to the lien of the tax title and cannot be cut off in this proceeding.
The General Tax act (P.L. 1918 p. 847 § 401 (1), as amendedP.L. 1927 p. 576), requires the assessor to "determine the full and fair value of each parcel of real property situated in the taxing district at such price as, in his judgment, such parcel would sell for at a fair and bona fide sale by private contract." The parcel of the association situate in the middle of the block is without any substantial value unless included with it is the right of way. While this situation is somewhat unusual in a city, it is common in the rural counties where the only access to many farms and woodlots are private rights of way across other properties. It cannot have been the intention of the legislature that the assessor should fix the value of such lands independent of the means of reaching them, for the assessed value would be trifling, and much income thereby lost to the taxing district. In Mayor, c., of Jersey City v. State Board ofAssessors, c.,
The tax sale is based upon the assessment. Nothing passes thereby except what has been assessed. The sale was subject to the easement and so the right of way cannot be extinguished by foreclosure of the lien. The answer will not be stricken.
