| Conn. | Nov 1, 1900
General Statutes, § 3827, provide that all property, not exempted, shall be liable to taxation, and that all real estate shall be set in the list of the town where it is situated. The conveyance by the Quinebaug Reservoir Company to Leland made him the owner in fee of certain lands, and reserved to it a right issuing out of those lands, which was perpetually charged upon them in favor of the company and its successors and assigns. This right was an incorporeal hereditament, and real estate. All real estate, whether corporeal or incorporeal, has a fixed situs. This hereditament, in the eye of the law, was situated in the town of Union, because the land out of which it issued was situated there. The Company made out a tax list, embracing it, which was returned to the assessors of that town. It was described in this list as "flowage over lands" which were particularly bounded and identified. It is not disputed that the acreage of the lands subject to the easement was underestimated by ten acres. The only question raised is as to the right of the assessors to add, as they did, the item "dams and water privileges."
The deed of 1846 shows that there was then a dam upon the lands, and it is agreed that the company has always used its water-privilege by flowing them. For this real estate the plaintiff was taxable in Union, unless it can claim some statutory exemption.
It is contended that such an exemption is found in General Statutes, §§ 3849, 3850. These provide that water-power used by the owner in the same town in which the works and *298 watercourse creating it are located, shall be listed for taxation there as incidental to the machinery operated by it, and not separately as distinct property, and if used by a lessee, the owner shall be taxed upon it at a valuation based on its net rental; but that where it is used in a different town, the land occupied by such works and watercourse and by the increased flowage due to them, shall be listed for taxation in the town where these are located, against the owner of the power, at what would be its fair valuation for agricultural purposes, if not so occupied, but the power shall be listed for taxation in the town where it is used; and that in estimating its incidental value to the machinery operated by it, or its net rental value, the amount assessed elsewhere shall be deducted from the value of the land. A comparison of § 3850 with the original statute upon which it is based (Public Acts of 1869, p. 344, Chap. 131), shows that the deduction last mentioned is really meant to be one of the valuation of the land from the valuation of the power.
Statutes regulating taxation in towns are to be construed as applicable only to towns in the State enacting the law, unless a contrary intention is expressed. There is nothing in §§ 3849, 3850, to indicate that it was designed to relieve any real estate situated in Connecticut from taxation at its full value. Section 3849 contemplates the case of a water-privilege, the only use of which is in the town where the water-power is created. Section 3850 contemplates the case of a water-privilege created in one Connecticut town and used in another. Neither covers the case presented by the Quinebaug Reservoir Company.
When water is artificially stored upon land so as to create mechanical power by its fall, the necessary result is to bring into existence a new element of value. If the land thus used for storage purposes would be more valuable for other purposes, the value gained is less than the value lost. If, on the other hand, the power created has a value exceeding that of the land occupied, the taxable resources of the State in which that land is situated are increased. Such a use of land may, so long as it is continued, practically extinguish the value *299
of the land for any other purpose than that of sustaining the artificial burden to which it has been thus subjected. In such case, under our system which makes all real estate taxable by the towns in which it is situated, we should expect that either the value of the power or so much of it as equals that of the land if left in its natural condition, would be made taxable in the same way in which this land had been before. Such is the practical effect of the law, as we have construed it, and its enactment was fully within the competence of the General Assembly. The power, in whatever State it may be used, came into existence and is now maintained under the protection of the laws of Connecticut, and its owner, wherever he may belong, is taxable upon it here. WinnipiseogeeLake Mfg. Co. v. Gilford,
We have no occasion to inquire whether it can be taxed at a valuation estimated with reference to its use in Massachusetts. The appeal is based, not upon the valuation given by the assessors to the item which they added, but on their right to make the addition at all.
The omission to give the company the notice of this addition, required by General Statutes, § 3812, was waived by its appeal to the board of relief.
The appeal taken to this court by the Hamilton Woolen Company rests on substantially the same grounds as that of the Quinebaug Reservoir Company, and must fail for the same reasons.
There is no error in either of the judgments appealed from.
In this opinion the other judges concurred.