Stein v. Mayor of Mobile, 17 Ala. 234

Stein v. Mayor of Mobile

17 Ala. 234 | Ala. | 1850

DARGAN, C. J.

It is contended by the plaintiff in error, that by the contract between him and the corporate authorities of the city of Mobile, the water-works are exempt from the payment of city taxes. If this be so, the contract must show that it was the intention of the defendants in error to abandon and give up the right to tax this property, for the right of taxation is essential to the existence of all governments, as well that of a city with limited powers as any other, and it is never to be presumed that this right is abandoned or surrendered unless it clearly appears that such was the intention. This is the rule declared'by the Supreme Court of the United States in the case of the Providence Bank v. Billings et al., 4 Peters, 514, and also in the cases of Louisville & Portland Canal Co. v. The Commonwealth, 7 B. Monr. 160, and Brewster and Hough, 10 N. Hamp. 138. We must therefore look to the agreement itself, and find upon its face a surrender or a relinquishment of this right, or the exemption cannot be successfully claimed by the plaintiff. The contract grants to Stein the sole privilege of supplying the city of Mobile with water from Three Mile Creek for the term of twenty years, with all the rights and advantages that the city possessed by or under an act passed the 20th December 1820, entitled “An act to incorporate an aqueduct com*240pany in the city of Mobile, and also all the rights and advantages derived from any other act relating thereto or amendatory thereof; and at the expiration of said term, the right is reserved to the city to take the water-works upon paying to Stein the value thereof, to be ascertained in the mode prescribed by the agreement. The inducement to Stein to enter into this agreement was the right to charge all who might ttse the water at certain prescribed rates, except so far as he was bound to furnish the city with water free of charge, for the purposes specified in the agreement. But no term of this agreement exempts the property employed or used in the erection of the works from taxation, nor is such an exemption a necessary inference from any thing granted, nor can it arise from any restriction imposed on the city. The right therefore to tax the property is not restricted nor impaired by the contract, and may lawfully be exercised.

2. It is again contended, that if the water-works can be taxed, that the property used in their construction, together with the lot of laud on which the reservoir is situated, alone should be valued, and the tax should be assessed on that value, irrespective of the value arising from the right or privilege to charge for the use of the water. To this argument we cannot assent. The value of property must be estimated by the advantages or profits that are or may be derived from it; and if one own tangible property, with which is connected an intangible right or privilege, in forming a just estimate of the value we must consider the tangible property in connection with the intangible right or privilege. By any other rule than this, we would often estimate property of great value as worth but very little. For instance, if a charter is granted to erect a rail-road, and the company go on to complete the work, and it yields large profits, in forming an idea of value, if we separate all the component parts of value and estimate each separately, we should fall far short of the intrinsic worth. The right to charge toll, disconnected from the road, would be worth nothing; and the land over which the road may run and the materials employed in its construction are of but little value when disconnected from each other. But when we consider all the component parts of value in connection with each other, and thus connected yielding profits, we then can fix a just estimate of value. In the case before us, if we were to estimate the lot of land and iron pipes alone, the record shows *241us that their value is only $8,000, but the land and pipes and the privilege of charging all who may use the*-water, valued in connection with each other, are worth $75,000. If we therefore should estimate the property as worth only $8,000, we should fall far short of its intrinsic worth. Nor can we perceive any reasonable objection to this mode of estimating the value. It is true that the right to supply the city with water, disconnected from those works necessary to render it profitable, would be a barren right, and probably of no value; for instance, had the works never been completed, the mere privilege of supplying the city with water could have yielded nothing. But still it would have been a right, and when that right is connected with corporeal objects of property and becomes valuable, the whole should be estimated in the connection in which they stand in order to arrive at a proper estimate of their value. The case of The State v. Reeves, 5 Ired. 297, we think entirely unlike the case before us. In that case a charter had been granted to a rail-road company and the road had been completed ; a judgment was recovered against the company, and the road was sold under execution, and the question was what passed by the sheriff’s sale. The court held that the purchaser acquired the land over which the road passed and the materials with which the road was constructed, but no part of the privilege confered by the charter on the company.. If we admit that this decision is entirely correct, it cannot aid the plaintiff in error. The question in that case was what passed by the sale; the question in the case before us is what is the value of the property. A privilege or franchise may not be liable to seizure and sale, but we cannot think it will be denied that it is property. But it is contended that the charter only authorises the corporate authorities to tax real and personal property, and that this privilege is neither. In answer to this, we will obly say that it cannot be considered as a right of action merely, but it is property in possession, and being property, it must -be embraced within the one or the other of those terms, for we know of no species of property that cannot be said to be either real or personal, whether it be corporeal or incorporeal. We come therefore to the conclusion, that in estimating the value of the property the city assessors correctly considered the land on which is situated the reservoir, the pipes through which the water is conducted into *242the city, and the privilege of charging all who might use it, in connection with each other, and the value of the whole thus estimated is liable to taxation.

Let the judgment be affirmed.