STATE v. MAD RIVER CO

A company which has no title to the waters of a stream but merely controls its flow in its natural channels by means of reservoirs and dams, so as to avoid waste in times of freshet and a shortage in times of drouth, for the benefit of its stockholders who are lower riparian owners, is not taxable under the provisions of § 11 of Chapter 292 of the Public Acts of 1915, since its business is not the "selling" of water, which is one of the conditions essential to its taxation under this Act. A "sale" implies an ownership in the thing sold and a transfer of that ownership or title to another.

PRENTICE, C. J.

The Attorney-General brings this application under § 15 of Chapter 292 of the Public Acts of 1915, for an order for the payment by the defendant to the State of an amount claimed to be due under and by virtue of the provisions of Part II of that Act, being one providing for the taxation of certain corporations, partnerships, and so forth.

To bring the defendant within the operation of these provisions, three conditions must be met, to wit: (1) Its principal business must have been that of operating a system of waterworks; (2) that operation must have been for the purpose of selling and distributing water for domestic or power purposes; and (3) it must have had gross earnings from such operation in this State. It may be assumed, without decision, that the first and last named of these conditions were satisfied in the defendant's case. The second surely was not. That condition embraces both the sale and distribution of water. If it can reasonably be said that allowing the water of a stream to flow in its accustomed channels and be used and enjoyed freely by those who as riparian owners are entitled to use and enjoy it, is distribution within the meaning of the statute, the element of sale of the water thus distributed clearly is wanting. A sale implies an ownership to another. Public Acts of 1907, Chap. 212, § 1. It involves the passing of title. The defendant never has had title to the water which it has detained in its reservoirs, and it has never undertaken to give to anyone title to it or to any part of it. It has never attempted either to appropriate any water, or to divert any from its natural channels, or to restrict the beneficial enjoyment of the waters of the streams by lower proprietors entitled to such enjoyment. The only thing that it has sought or accomplished is a control of the flow of the water in such manner that through avoidance of waste at times, and of shortage at other times, the interest of riparian proprietors should be more beneficially served than would otherwise be the case. The purpose of the defendant is not sale but conservation. It exists for the rendition of service, and not for dealing in a salable commodity.