Bellows Falls Canal Co. v. Town of Rockingham

Poland, Ch. J. The burden of proof is on the plaintiffs to show that the taxes sought to be recovered back in this action, were illegally collected. It is claimed that the plaintiffs’ grand list upon which the taxes were assessed was illegal and void, and so the taxes assessed on it void. 1st, Because the same property was twice included in the list and thus the plaintiffs made to pay double taxes upon it. That the whole property was put in, under the head of lodes and canal, and again in items of buildings, shops, Sc. , The case instead of showing this, (as the plaintiffs would be bound to do, in order to recover on this ground,) shows exactly the contrary. The property being all connected together, not divided into separate parcels at all, the listers might properly have set it in the list in one gross sum, under any appropriate name or description so as to be reasonably certain what made up the list. But the fact that they divided it up separately, giving the value of each building by itself, was equally proper, unless thereby the property or some of it was thus put twice in the list. It does not appear very distinctly, whether under the head of loclcs and canal, the listers intended to include the land covered by the buildings, and then added the value of the buildings alone, without reference to the land covered by them, or whether with each building they included the value of the land it occupied. And we do not regard it as at all material which way it was done, if no more than all the land, and all the buildings, were once included in the list. There is no evidence that any injury or prejudice resulted to the plaintiffs from the mode adopted in making up their list. 2d, Because the listers neglected to ascertain the quantity of land, and to state the quantity of land in the list. This requirement of the statute is evidently for the purpose of enabling the county average and equalization to be made between the different towns in the county, and the state average to be made between the different counties, so that it may appear at what rate per acre the lands of a town have been appraised and set in the list. The only object to be attained by this, is attained by having it done in reference to farms, and agricultural lands, and can be of no avail in reference to small parcels, used for business, as for factories, mills, [626] stores, &c., or for mere dwellings and gardens, where the value depends on mere location and business. But where it is required, as in the case of a farm, it is not'for the benefit of the owner, but for public purposes, and if neglected to be done in such cases, it does not render the list void, or give the owner any action against the listers, or against the town* without showing that it has worked him some loss or injury. Such provisions, so far as the tax-payer is concerned, are to be considered as directory merely. Torrey v. Millbury, 21 Pick. 64. 3d, The plaintiffs claim the listers should have stated how much land they appraised with each of the buildings separately. If it is to be inferred they appraised any land with those buildings, we think it must be so much as each building covered, and there is nothing in the case to show that in fact any more was specially attached to, or used with the building. 4th, The plaintiffs claim that the value of the canal as a reservoir, furnishing water power, was either twice included, once under the head of lochs and canal, and again with each mill and shop, or else that it was wholly included under the head of lochs and canal, separate from the mills carried by it, and that either mode made the list illegal. It does not appear but that such part of the water power furnished by the canal, as was applied to any mill or shop, was included in the valuation of such mill or shop. If there was any remaining capacity in the canal to furnish water power, not used, which made the structure or reservoir more valuable, it was properly appraised with, and as a part of the property itself. It may be conceded that a water power, as such, unconnected with any mill or other erection, and disconnected from any land, is not a proper subject of taxation. But when applied to a mill or factory, to the extent it is thus applied, it becomes a part of the mill or factory itself, and should be taxed with, and as a part of it; and when unimproved, it is to be taxed with the land to which it belongs, if its existence adds to the value of the property. Boston Manuf. Co. v. Newton, 22 Pick. 22. In City of Lowell v. Co. Comm’rs of Middlesex, 6 Allen, 131, the proprietors of the locks and canals on Merrimac river, (which were [627] made for the purpose of creating and furnishing water power,) had „ leased or contracted portions of the water power to certain companies, and the same was used for operating their factories or mills. These mills and factories were assessed at an increased rate, in consequence of the use of such power. The owners of the locks and canals had a surplus water power which was unemployed. In assessing the value of the locks and canals, this surplus water power was added to their value, and it was decided that this was proper and legal. That case seems fully to justify the action of the listers in the present case, so far as we are able to learn from the exceptions and accompanying papers what was done. We have been wholly unable to find in this case, that there has been any double taxation of any portion of the plaintiffs’ property, or that anything was done by the listers in assessing their property that has worked them any wrong. Nor are we able to discover any such irregularity in the form or mode of making up their list, as should render it void; and if there has been a failure to comply with all the requirements of the statute, they are not of a character that could prejudice the plaintiffs, or of which they can be heard to complain. Judgment affirmed.