205 A.D. 467 | N.Y. App. Div. | 1923
Lead Opinion
The city of New York, for the purpose of supplying its citizens with pure and wholesome water, acquired the lands in the town of North Salem which are the subject of this controversy. These lands, although assessed as three distinct parcels, are contiguous and form but one parcel, containing over 1,400 acres. Some of the lands are flooded by the Croton dam, some are flooded by the Titicus dam and some are apparently used for the purpose of preventing pollution.
In the year 1916 the assessors of said town of North Salem assessed the relator’s property as follows:
Section 1, block 100, lot 6T, buildings, dam and land,
631.87 acres................................... $544,010
Section 1, block 100, lot 4T, land under water and
above, 413.57 acres............................ 355,990
Section 1, block 100, village and farm land, 364 acres.. 142,130
Total..................................... $1,042,130
The Croton river forms the westerly boundary of the town of North Salem. The Titicus river flows into the Croton river at Purdy’s station. The lands of the relator consist of a strip of land running along the easterly side of the Croton river, from the
The relator, in its petition for the writ of certiorari herein, alleges that the assessment of its lands is illegal, excessive and unequal. In the petition it states that the property of the relator is assessed at the sum of $1,042,130, which is more than the fair market value of said property and that the amount of said overvaluation is the sum of $400,000.
An order was made referring the matter to a referee. The referee heard the witnesses presented by both parties, examined the property and made his report. In this report the referee divided the property into parcels, the same as the assessors had done upon their assessment roll. He found the value of lot 6T to be $1,146,283.75, an increase of $602,273.75 over the value of said parcel appearing on the assessment roll. He found the value of lot 4T to be $51,696.25, a decrease of $304,293.75 from the value appearing upon the assessment roll. He found the value of the lot designated “ village and farm land ” to Ipe $129,320, a decrease of $12,810 from, the value appearing upon the assessment roll. He thus found the total value to be $1,327,300. He also found that the ratio of assessed value to actual or market value was seventy-eight per cent, and fixed the correct taxable value at $1,035,294, specifying the value of each parcel upon the same ratio. These facts, briefly stated, seem sufficient to enable one to understand the discussion which is to follow.
The report of the referee was confirmed by the court at Special Term and the findings of fact made by the referee were adopted as the findings of the court, and it is from the order entered thereon that the relator appeals.
The relator urges that the referee and the court have exceeded their jurisdiction in increasing the assessed value of the relator’s property above the value determined by the assessors. The referee increased the assessment or valuation of some of the parcels and it is claimed that in so doing he exceeded his jurisdiction. The relator claims that the property having been divided into parcels, the court is without power in a proceeding of this character to increase the value of any such parcel. The case which most nearly supports the relator’s contention is People ex rel. Kemp R. E. Co. v. O’Donnel (198 N. Y. 48). In that case the relator owned two parcels of land upon which valuable improvements had been greeted — Lot No. 1, known as the Belgravia apartment house,
Lot No. 1, value of real estate, unimproved......... $400,000
Value of real estate with improvements thereon...... 500,000
Lot No. 69, value of real estate, unimproved........ 1,050,000
Value of real estate with improvements thereon..... 1,600,000
It was stipulated in that proceeding that for the purposes of taxation the property was assessed at only eighty-eight per cent of the actual value. The referee found that the value of the land in parcel No. 1, unimproved, was $475,000 (as against the assessed valuation of $400,000), and that the improvements added $90,000 to its value (while according to the annual record of assessed valuation they added $100,000). He held, however, that the board of taxes and assessments was bound by the valuation of the land unimproved at $400,000 and accordingly reported that the correct valuation of the property should be made up by adding to that sum eighty-eight per cent of the value of the improvements as found by him, to wit, $79,200, making a total of $479,200. The same thing occurred as to the other parcel. The court at Special Term refused to adopt the referee’s conclusions of law and modified his report so as to direct the reduction to eighty-eight per cent,, to be calculated upon the total actual value of each parcel as he found it to be, notwithstanding the fact that this method involved an increase above the assessment of the land considered as unimproved. From this modification the relator appealed and the Court of Appeals held that the referee was correct in his holding and that the assessment could not be so increased. It said: “ When he [the taxpayer] takes the assessment into court, asking for a reduction thereof, there is nothing in his action which implies a consent to have the assessment increased or a willingness to litigate that question, nor can the action of the commissioners of taxes and assessments in resisting his application for a reduction reasonably be construed into a notice from them that they will ask for an increase. The petition in the certiorari proceeding alleges that the assessed valuations are erroneous by reason of overvaluation and inequality. The return avers the correctness of the assessments. The petition and return in a case of this kind perform the office of pleadings in an action (People ex rel. Buffalo Burial Park Association v. Stilwell, 190 N. Y. 284); and
Prior to filing the petition for the writ the relator filed a protest with the assessors and in that protest the same general allegation was made. The proceeding, therefore, was brought to test the
The relator contends that a dam such as the dam involved in this proceeding (Titicus dam) is an essential part of the aqueduct system and necessary to its operation and embraced within the term “ aqueducts,” and, therefore, exempt from taxation under section 480 of the Greater New York charter (Laws of 1901, chap. 466). This section reads as follows: “ The lands heretofore taken or to be taken for storage, reservoirs, or for other constructions necessary for the introduction and maintenance of a sufficient supply of water in the city, or for the purpose of preventing contamination
It seems to me that the right of the town to assess the dam has been specifically passed upon by the Court of Appeals in Matter of City of New York v. Mitchell (183 N. Y. 245). In his recital of facts at the beginning of his opinion in that case Judge Gray said: “ This property consisted of tracts of land, which had been acquired by the city, in the past, for the construction of reservoirs and for the protection of the city’s water supply. The return of the assessors to the writ showed what properties had been the subjects of -their assessment, the various facts upon which their determination had been reached and their procedure. It appeared that, for the first time, they had included in the assessment the various constructions placed upon the land by the city, in connection with the water works system, and the increase based thereupon constituted the grievance of the city and, though other questions were raised, relating to overvaluation and to inequality, it presents the only question, which we shall consider.” The learned judge then cites the various acts in relation to the assessment of these;properties and shows that for a time the Legislature had exemp ted from taxation the aqueduct and the construction works necessary for its purposes but that by section 480 of the Greater New York charter (Laws of 1897, chap. 378, as amd. by Laws of 1900, chap. 463), as amended by chapter 466 of the Laws of 1901, only the aqueduct itself was exempt and it was, therefore, held that these structures other than the aqueduct were taxable. That this is the "decision of the court is made manifest by the concurring memorandum of Judge Edward T. Bartlett, who said: “ I agree, as this decision is in accordance with the letter of the statute. Justice requires that the land should be assessed where situated; not only the aqueduct but its appurtenances should be exempt. The Legislature ought to amend the statute in the interest of the city of New York, as it is engaged in a work of great public necessity.” (See, also, Matter of City of New York v. Allen, 106 App. Div. 262.) The other cases cited by the appellant in no way detract from the value of this case as an authority. I think the assessors were entitled to assess the dam.
The relator claims that even if the dam is assessable a wrong method of valuation has been adopted. -It concedes that the dam cannot be assessed as a part of the city’s water system and its value fixed as an integral part of that system; that the value of the
This, as I understand, is the rule adopted by the assessors in assessing this property. They have ascertained the cost of its reproduction (People ex rel. D., L. & W. R. R. Co. v. Clapp, supra) and from the cost of reproduction they have deducted the amount of its physical deterioration. The result is an assessment along the general lines upon which all other property is assessed.
The next contention of the appellant is that if the dam is assessed, the land flooded by the impounded water is valueless and can be assessed only at a nominal value. This property could be assessed upon two theories: c(a) Its value as a part of a great water works system; (b) the cost of reproduction. The first theory was that adopted by the assessors in People ex rel. D., L. & W. R. R. Co. v. Clapp (supra), which the Court of Appeals condemned. It pointed out that the second theory was the correct theory. This is the theory so clearly and succinctly set forth by Mr. Justice Keogh. The appellant, it seems to me, does not want to adopt either theory in its entirety. It wants to adopt the reproductive theory in so far as it applies to the dam but not as to the land. It contends that the use to which the land is put renders it valueless and that as long as the land is thus used the assessment should be nominal. The same contention might be made in relation to the land in a railroad right of way, but I think the land under those circumstances is valued at what it would cost to procure it at that time, and the reproductive theory of assessment requires that the value of the land should be fixed in accordance with the value of other land in the immediate vicinity used for ordinary purposes. The land in a railroad right of way in a hilly country
The appellant urges a number of other alleged errors. Most of them, however, are questions of fact and the referee had before him testimony which justified the findings arrived at by him and we see no reason to disturb his findings upon those matters, especially as he had the opportunity of viewing the premises — not only the premises assessed, but all the other parcels cited by the parties to sustain their theories as to whether the property in question was assessed at a higher rate than other premises of a like character in the same town.
There remains for consideration but one further question and that is the allowance of costs. The Special Term awarded costs to the respondents and also granted an extra allowance. The assessment, as has been stated above, wras reduced about $7,000. Under the law in effect at the time the order appealed from was
I recommend that the final order be modified by striking therefrom the costs, disbursements and allowance awarded to the assessors, and as modified affirmed, without costs.
Kelly, P. J., and Young, J., concur; Kapper, J., dissents and reads for reversal.
Dissenting Opinion
I dissent. The assessors assessed the property as three separate parcels with a specific valuation on each parcel. The first parcel was assessed at $544,010. This, the referee and the Special Term increased to* $894,101.33. The taxable values on the other two parcels were decreased by the referee and the Special Term, so that the aggregate assessment fixed by them is $1,035,294, which is about $7,000 less than that fixed by the assessors. I think the practice adopted by the assessors of assessing in separate parcels was likewise adopted by the referee and the Special Term, and that there was in law and in fact an increase of the assessed value upon the review by certiorari which they were powerless to effect. (People ex rel. Kemp R. E. Co. v. O’Donnel, 198 N. Y. 48.) Granting that the case cited arose under the provisions of the Greater New York charter, which differ in some respects from the general Tax Law operative throughout the State, I do not understand that the principle which denies the right to the court upon a review by certiorari to increase the assessment is unfavorably affected by the State law. If the three parcels were in three separate ownerships, there would seem to be no doubt of the lack of power to increase. I am not satisfied that that principle can be affected by reducing some parcels and increasing others so that the aggregate assessment against the one owner is not greater than the original assessment upon the whole. In my opinion there should be a rehearing or at least a reduction of the valuation of the first parcel to the sum for which it was originally assessed.
Final order modified by striking therefrom the provision for coh1<. disbursements and allowance to the assessors, and as so moil hied affirmed, without costs.
