Baker v. Town of West Hartford

Gager, J. The facts relating to the assessment of the tree plantation in question, under the provisions of Chapter 205 of the Public Acts of 1911, and its continuance as a tree plantation to October 1st, 1913, are fully set out in Baker v. West Hartford, 89 Conn. 394, 94 Atl. 283. In that case we held the Act constitutional; that to secure the exemption from taxation provided by the Act the owner must fairly comply with the conditions prescribed by the Act; and that these conditions had been complied with up to October 1st, 1913, and that upon the latter date the plantation was exempt from taxation. It appears that by successive replantings the number of trees had been kept up so that after the replanting in the spring of 1916 there were more than 1,200 trees to the acre upon the entire tract. The Act required an original planting of not less than 1,200 trees to the acre, but says nothing as to a minimum number that must be maintained after the original planting. The finding is that there were no considerable losses during the winter of 1916-17, and we come to the beginning of the winter of 1917-18 with a well-stocked tree plantation. During this winter there was a destructive invasion of rodents which destroyed many trees scattered over the entire tract, the destroyed trees being especially numerous upon the three acres in question. This invasion was unpreventable and was not to be anticipated. As a result, in the spring of 1918 there were left approxi *587 mately 800 trees to the acre, not evenly distributed over the whole tract, and upon the three-acre tract something less than 400 trees per acre. Although the owner had a contract for replanting, it is found that by reason of war work the contractor could not replant in the spring of 1918, and the court finds that on account of World War conditions it was impracticable to replant in 1918. Upon October 1st, 1918, then, the tree plantation is found in a damaged condition caused by an unpreventable invasion of rodents, and such condition could not, prior to that date, have been remedied by the owner. From such a condition so produced, no inference of fact can reasonably be drawn that the owner had, upon October 1st, 1918, within the meaning of the statute, failed to continue the tract as a tree plantation. Absolutely nothing is shown except the destructive invasion and the unavoidable failure to replant before the next taxing date. A reasonable opportunity must be given in such case, and the owner never had it. Suppose the rodent invasion had happened September 25th, 1918, with the same results; no one could, with a straight face, say, that on the following October 1st, from this fact alone, it could justly be found that the owner had then failed to continue the plantation; and yet that in effect is what the town claims here. Under the conditions as to replanting found here, a total destruction of the trees would not alone have justified a finding on October 1st, 1918, that the condition of the exemption had not been complied with. The actual condition of the trees at a given time, here October 1st, 1918, is not alone conclusive. How it came about, and whether the owner has had a reasonable opportunity to remedy it must also be considered. We are not called upon to say how greatly the number of trees must be reduced, and for how long this con *588 dition must be continued without replanting, to justify a finding that the condition of exemption has not been complied with. The court has, not unreasonably, found that enough trees were in fact left to furnish second grade timber and cord wood; for that reason alone, apart from the loss of replanting in the spring of 1918, the conclusion of the court has sufficient support. The two reasons together make a conclusive case for the plaintiff. The town, however, insists that the three-acre tract should be taken by itself. The court found that, standing by itself, this would not constitute a continued plantation as contemplated by the statute, and that if this tract could be taken by itself the appeal should be dismissed. This part of the finding is a legal conclusion not warranted by the subordinate facts found and set out at length. We think, in this case, the court was justified in insisting upon treating the tract as a whole. The owner had done nothing, either actively or passively, to separate the three acres from the rest. It is found that the entire tract was enclosed by a wire fence, that it had been used solely for a tree plantation, and that the owner had done nothing indicating any intention to use it for any other purpose in the future. The rodents did greater damage on this portion than on the rest, but that of itself cannot be charged to the owner as making it a separate tract. We do not wish to be understood as saying that a part cannot be taken from a larger tract and- subjected to taxation for failure to continue the use as a tree plantation, but upon the facts of this case there has been no such separation. Moreover, should we take the finding as to these three acres as though that were all the land affected, the finding does not show a failure to continue it as a tree plantation. There are *589 still nearly 400 trees to the acre. The replacement between the time of destruction and the taxing date was an impossibility, and, as indicated above, such a situation furnishes no reasonable ground for a finding that the owner had on October 1st, 1918, failed to continue the plantation. To so hold would be clearly unjust. Whichever way the three acres is taken, under conditions as they existed October 1st, 1918, whether by itself or as part of the eighteen acres, the judgment sustaining the plaintiff’s appeal and erasing this tract from the plaintiff’s tax list was right. There is no error. In this opinion the other judges concurred.