205 Wis. 607 | Wis. | 1931
The suit is to enjoin collection of a tax levied by the taxing authorities of the defendant city upon warehouse property in use by the plaintiff company on the ground that the property is subject to taxation by the State Tax Commission as railroad property of the Milwaukee road and not subject to local taxation.
The statute under which the plaintiff claims the property is taxable by the Tax. Commission is sec. 76.02, Stats., which provides that the commission shall assess and tax railroad property except real estate “not necessarily used” in operation of the road which is made subject to local taxation. The only issue is whether the property involved “is necessarily” so used, on which issue the plaintiff has the affirmative. The court found that the property was not so used and dismissed the complaint, and this finding must be upheld unless it is against the clear weight of the evidence or from the undisputed evidence it appears as matter of law that the property is necessarily so used.
The main facts on which plaintiff bases dts contention are that the property is dock property immediately adjacent to the Milwaukee road’s tracks upon which a warehouse stands affording storage facilities for water-borne freight for delivery to the railroad for further transportation and distribution by it and for freight carried by the railroad for further transportation by water. It is the only dock in Milwaukee to which any railroad has immediate access. Some water-borne freight is received at the dock for further transportation by the road. The plaintiff is the lessee of the property under two leases expiring fifty years from May 1, 1926, pursuant to which it has erected a re-enforced concrete warehouse at a cost of approximately $333,000 and is to complete a like addition thereto at an additional cost of approximately $130,000. There is no provision for removal of the building at termination of the lease such as is ordinarily contained in leases by railroads of premises
The railroad claims that it is necessary in the conduct of its business as a common carrier to maintain freezer and cold-storage facilities for meats, eggs, butter, cheese, fruit, and other perishable freight, and dry storage for other freight, and that the warehouse on the leased premises is necessary for such purpose, and that having such facilities upon its own dock and trackage gives it an advantage over other railroads in soliciting freight for transportation, especially water-borne freight.
The evidentiary facts above stated may all be admitted without forcing the conclusion that the leased premises are necessarily used in the operation of the railroad. The respondents stress other facts, some of which are as follows, as supporting the conclusion of the trial court to the contrary : Pleretofore the railroad has not found maintenance of cold-storage facilities necessary to operation of its road. No other railroad maintains them. There was no change in business conditions demanding the construction of the warehouses on the railroad’s premises. Private warehouse-men provide freezer, cold and dry storage for other roads, rendering the same service to them that plaintiff renders to the Milwaukee road, and have and did have at time of the execution of the leases ample facilities to serve the latter road. The plaintiff conducts its business in competition with private warehousemen. The plaintiff fixes the storage charges by the month upon all freight received by it and the railroad publishes no storage tariffs. Freight received from the railroad is held by direction of the consignee or consignors, ordinarily for periods exceeding a month and often for several months. The railroad leased the former warehouse upon its premises to a private warehouseman for five years and until it became too dilapidated
Plaintiff’s counsel urge that the holding of the trial court is contrary to previous decisions of this court involving the taxation of railroad property similarly situated and used. We do not so regard it. The language of the present statute, “necessarily used in operating the railroad,” has since 1868 been in the statute exempting that species of railroad property from local taxation. Counsel for respondents lay great stress, as did the trial court, on Milwaukee & St. P. R. Co. v. Milwaukee, 34 Wis. 271. They go too far in saying that it necessarily rules the instant case. But plaintiff’s counsel goes too far in saying that that case is overruled and this case is necessarily controlled by Chicago, St. P., M. & O. R. Co. v. Bayfield County, 87 Wis. 188, 58
“The word ‘necessary’ here does not mean ‘inevitable’ on the one hand, nor merely ‘convenient’ or ‘profitable’ on the other, but a stage of utility or materiality to the carrier’s business less than the first but greater than the latter of these expressions. Perhaps the phrase ‘reasonably required in the exercise of sound business prudence’ would express the idea fairly well.” Minneapolis, St. P. & S. S. M. R. Co. v. Douglas County, 159 Wis. 408, 412, 150 N. W. 422; Chicago, St. P., M. & O. R. Co. v. Douglas County, 122 Wis. 273, 279, 99 N. W. 1030. The facts of the case justify the conclusion that the use of the warehouse
The only feature of the case that seems to distinguish the use made by the railroad of the warehouse in any way from the use made by the other roads running into Milwaukee of other public warehouses is its use in receiving and holding water-borne sugar for further, transportation by rail. But this use is so small a part of the total use as to make it negligible. It may with propriety be stated that should the railroad’s business as a forwarder or distributor of water-borne freight so increase as to require the plaintiff to devote the property involved principally to the storage or handling of water-borne freight, or render such use necessary to the operation of the road within the terms of the definition last above given, the property will then be exempt from local taxation. It is only present use that brings property within the exemption. Property held .for future terminal use as business shall require devotion to that use is locally taxable. Duluth, S. S. & A. R. Co. v. Douglas County, 103 Wis. 75, 79 N. W. 34. The same property may at one time be locally taxable and at another exempt from local taxation, dependent on the degree of use devoted to operation of the road. Milwaukee & St. P. R. Co. v. Crawford County, 29 Wis. 116; Chicago, M. & St. P. R. Co. v. Crawford County, 48 Wis. 666, 5 N. W. 3. The improvement of the property in the instant case apparently was arranged in anticipation of future rather than present demands for transportation of water-borne freight.
Other matters are. discussed in the brief which bear indirectly upon the issue involved, but the above seems all that is necessary to determination of the case.
By the Court. — The judgment of the circuit court is affirmed.