Flax Pond Water Co. v. City of Lynn

147 Mass. 31 | Mass. | 1888

C. Allen, J.

The plaintiff took its deed in 1876, covering all the grantor’s right, title, and interest in and to the waters of the pond, and all the dams, sluices, and water-ways connected therewith. It is to be assumed that it took possession thereof, as it now claims under the deed, and seeks. to remove a cloud from its title. Being in possession, the tax upon the dam was properly assessed to the plaintiff as a tax upon real estate. If, as the plaintiff avers, it never acquired the title to any real estate connected with the waters of the pond, and does not claim the fee in any real estate connected with said waters, these facts are immaterial so far as the right of taxation is concerned. It is the policy of the legislation of the Commonwealth that all valuable property shall be taxable in some form. The exercise of the right to erect and maintain dams, sluiceways, and other structures upon the land of another, may involve a large expenditure of money for such structures, and clearly the valuable property thus created should be taxable to somebody. If taxable, it must be either in connection with the fee of the land or independently of it.

Without now considering the question whether a valuable easement in gross may not be taxable by itself alone, we are of opinion that the plaintiff in the present case had an interest which was taxable to it as real estate, or in connection with the fee of the land, under the provisions of the statutes. Real estate, for the purpose of taxation, includes all lands, and all buildings and other things erected on or affixed to the same. Pub. Sts. c. 11, § 3. Gen. Sts. c. 11, § 3. This language is clearly broad enough to include the dam and sluiceway, which are certainly “ things erected on or affixed ” to the land. Pingree v. County Commissioners, 102 Mass. 76, 79. Taxes on real estate may be assessed to the person who is either the owner or in possession thereof. Pub. Sts. c. 11, § 13. Gen. Sts. c. 11, § 13.

Assuming that the plaintiff’s title was only to an easement, as the plaintiff contends, still one who is entitled to an easement of this character, including a right to maintain a permanent dam and sluiceway, and who is in the enjoyment of this right, and who asserts and seeks to vindicate the same, is to be deemed as in possession of the real estate for the purpose of taxation, within the meaning of the statute. It is true, that, in a certain sense, the owner of the fee may be said also to have a possession; he might dig underneath the surface for mines, and do other acts not inconsistent with the right of the plaintiff. But the principal and practical possession of the surface of the land was with the plaintiff, and this was sufficient to fall within the meaning of the statute as to taxation. As the value of the structures might far exceed the value of the fee subject to the easement, it is plain to see that it might be more proper and just to assess the tax to the plaintiff rather than to the owner of the fee of the soil, provided this was allowable under the statute. Being thus in possession, for the purposes mentioned, the plaintiff might properly be taxed for the dam and sluiceway as real estate, with the land itself. The assessors were not obliged to inquire into the details of the title, but might assess the whole value of the land thus occupied to the person maintaining and exercising such an easement, or to the owner of the soil. See Milligan v. Drury, 130 Mass. 428; Flanders v. Cross, 10 Cush. 514. The plaintiff was therefore properly assessed for the dam as real estate; and being properly assessed for a certain interest in real estate, the plaintiff’s sole remedy for any excess was by an application for an abatement. Salmond v. Hanover, 13 Allen, 119.

The plaintiff, however, contends that its right or interest was not subject to taxation, under the decisions in Cheshire v. County Commissioners, 118 Mass. 386, and Fall River v. County Commissioners, 125 Mass. 567. But neither of those decisions affects the question before us. In the first case, the St. of 1872, c. 306, relating to the taxation of reservoirs, was held to be void, on the ground that it provided a standard of valuation which was not proportional and reasonable. In the second case, the reservoir company did not own the dam, nor any of the land covered by the pond, and the decision was that the mere right to flow land could not be taxed independently.

Without considering other grounds of objection, the present bill in equity, for the reasons stated, cannot be maintained.

Bill dismissed.