Tax, Abatement, Assessment. Practice, Civil, Petition for abatement of tax. Superior Court. Water Rights. R.L.c. 14, § 42, so far as it relates to proceedings for the abatement of a tax assessed upon the property of a canal corporation, is not repealed by § 95 of St. 1903, c. 437, section one of which expressly excludes canal corporations from its operation.
The right of a corporation to appeal under R.L.c. 14, § 42; c. 12, § 77, from a refusal by the assessors of the city or town where its real estate and machinery are situated to grant an abatement of a tax for which it had applied after being notified by the tax commissioner that his valuation of its real estate and machinery was less than that of such assessors, is a right which exists even though the corporation has not filed with the assessors the list of its property which is required by R.L.c. 12, § 41.
Where the assessors of a town or city in which the real estate and machinery of a corporation are situated refuse to grant an application for an abatement of a tax which the corporation has made under R.L.c. 14, § 42, after the tax commissioner had notified it that his valuation of its real estate and machinery was less than that of the assessors, the corporation becomes a "person aggrieved" by such refusal, and may prosecute an appeal, not only by a complaint to the board of county commissioners under c. 12, § 77, but also by a complaint to the Superior Court under § 78.
A commissioner, appointed under R.L.c. 12, § 80, to hear and report upon a complaint filed on an appeal from a refusal by assessors to abate a tax, used language in his report from which it was not certain that he applied the true rule for the ascertainment of the value of the property in question for purposes of taxation. At the conclusion of his report he stated what he found to be the property's "fair cash value for taxation." No exception was taken or ruling made upon such findings. A judge of the Superior Court, after a hearing, reported the case to this court for determination, the parties agreeing that the findings of fact by the commissioner were to be taken as an agreed statement. Held, that the valuation found by the commissioner as "the fair cash value for taxation" must be treated as final.
A water power corporation owning land by a river in a city constructed a dam and canals for the purpose of turning the waters of the river upon the wheels of many mills situated upon or near its canals, and then conveyed to various persons different mill sites together with a grant to each of a definite easement of flowage of water with a given fall, reserving to itself in such conveyance a certain "rent" in perpetuity. Many years after such conveyances, the assessors of taxes of the city, in assessing to their several owners the sites to which such mill powers had been made appurtenant, increased the valuations and added such increase both to the amounts of the assessments upon the owners of the mill sites and to the amount of the assessment upon the water power corporation. The corporation appealed from a refusal of the assessors to abate the tax assessed upon it. Held, that so far as the water power developed by the structures of the corporation had been assessed by increasing the valuations of the several mill sites, to the same extent the assessors' valuation of the corporation's land and structures should be diminished.
RUGG, C.J.
This is a complaint filed in the Superior Court under R.L.c. 12, § 78, in the nature of an appeal from a refusal by the assessors of Lawrence to abate taxes assessed to the Essex Company for 1909.
It is urged that the Superior Court has no jurisdiction to entertain the complaint. The reason put forward in support of this contention is that, the petitioner having filed no list as required by R.L.c. 12, § 41, and hence not being entitled as of right to petition for abatement under § 74, it can proceed only under R.L.c. 14, § 42, which refers to R.L.c. 12, § 77 alone, and therefore limits the right of appeal to the county commissioners.
The assessors of Lawrence in 1909 greatly increased the valuation of the real estate of the petitioner, and the tax commissioner of the Commonwealth found the value thereof, for the purpose of estimating the petitioner's excise tax, to be less than that fixed by the assessors. Thereupon he sent to the petitioner a letter, in which he said: "You are hereby notified in accordance with the provisions of Section 42 of Chapter 14 of the Revised Laws, that the value of the real estate and machinery of the Essex Company situated in the city of Lawrence, as determined by the tax commissioner, is $1,431,750, being less than its value as determined by the assessors of Lawrence, by $545,000, the assessors having valued the same at $1,976,750. Your attention is respectfully directed to the provisions contained in the same section; by which if said corporation does not, within one month from the date of this notice, make application to said assessors for an abatement, and does not, in case of the refusal of said assessors to grant an abatement, forthwith prosecute an appeal, in accordance with the provisions of chapter 12, Sections 77 or 78 of the Revised Laws, and give notice thereof to the tax commissioner, such determination will be conclusive upon said corporation for the purposes of the above act."
It has been faintly argued that R.L.c. 14, § 42, was repealed by St. 1903, c. 437, § 95. But this is not so, for the reason among others that c. 437, according to § 1, does not apply to a canal corporation, which the petitioner is in some aspects of its charter duties.
The jurisdictional contention of the respondent cannot be sustained. The tax commissioner is required by R.L.c. 14, § 42, to notify the corporation in case he finds the value of its real estate and machinery subject to local taxation to be less than that made by the local assessors. This is doubtless in order that it may save itself from a result in some respects similar to double taxation, by applying for an abatement first to the assessors, and then by appeal under R.L.c. 12, § 77. The original enactment was St. 1865, c. 283, § 6, which since has been a part of our corporation tax law. It applies only when the tax commissioner does not accept the valuation of the local assessors in reliance upon the last clause of R.L.c. 14, § 38, but makes an independent valuation. That is the case at bar. It offers an opportunity to the corporation, but does not force upon it a course of action. The corporation is enabled to get its real estate and machinery valued by an appellate tribunal, not because it has put itself in a position by having filed a list where it can enforce a right, but because a different officer representing another branch of the general taxing power of the Commonwealth has affected its interests by making a new valuation. The right of the corporation to apply for abatement under such circumstances exists even though it has filed no list. Lowell v. County Commissioners, 146 Mass. 403, 410.
Refusal on the part of the assessors to make a reduction of valuation constitutes the corporation "a person aggrieved" within the meaning of those words in R.L.c. 12, § 77. Hough v. North Adams, 196 Mass. 290. Every "person aggrieved" within the meaning of § 77 is given by § 78 the alternative of appealing to the Superior Court instead of to the county commissioners. It is of no consequence in this connection how the grievance arises. It comes through failure of the assessors to grant an abatement, which the taxpayer was either entitled to ask for by reason of having seasonably filed a list, or permitted by the statute to ask for by reason of the action of another representative of the taxing power. The procedure is the same in either case. There appears to be no inconsistency between R.L.c. 14, § 42, as thus interpreted, and § 39 of the same chapter, which authorizes the tax commissioner to require a corporation to prosecute an appeal from the valuation of its real estate and machinery either to the county commissioners or to the Superior Court. The substance of this section appears first in St. 1890, c. 127, § 7, by which jurisdiction in tax appeals was earliest conferred upon the Superior Court. It was not necessary to enact a special section to include corporations. They were comprehended under the word "person" in § 1 of that act. Pub. Sts. c. 3, § 3, cl. 16 (R.L.c. 8, § 5, cl. 16). Section 39 confers upon the tax commissioner power to require a corporation, which is in a position to do so, to prosecute an appeal from the valuation of the assessors, a power not conferred by § 42 or its earlier enactments, and it does not make the exercise of such power dependent upon a determination of value by the tax commissioner less than that of the local assessors. It is not necessary to point out further differences nor to determine the scope of § 39. It follows that these two sections do not cover the same ground, and that the Superior Court has jurisdiction of this petition.
The case was tried before a commissioner appointed under R.L.c. 12, § 80, whose findings of fact by agreement now are to be taken as an agreed statement. It comes here on a report by a Superior Court judge upon his refusal to give certain rulings.
The salient facts are that the petitioner owns certain lands in the city of Lawrence, upon which have been erected a dam and canals with other appliances for turning the waters of the Merrimack River upon the wheels of divers mills situated upon or near its canals. It also is required by its charter to make provision for the navigation of the river, and is given the right to collect tolls, but this aspect of its corporate rights and duties is not material to the issues here raised. These constructions are capable of producing, in conjunction with the flow of the river and its fall, a large amount of power. Long before 1909, the petitioner had conveyed to companies operating manufacturing plants along or near its canals land (which was to be perpetually devoted to mill purposes, according to the terms of the deed or indenture of conveyance) together with all of what is called its permanent water power under the name "mill powers," each mill power being defined as "the right to draw twenty-five cubic feet a second where the fall is thirty feet." These conveyances, so far as concerned water power, were in the form of indentures in conveyances of land which reserved in perpetuity to the Essex Company an annual rent for each mill power with the land to which it is annexed of "two hundred and sixty ounces troy weight of silver" with other provisions not here of consequence. The situation disclosed is that the Essex Company, owning land in connection with which it as riparian proprietor had made a large water power development, sold subdivisions of the land, to each of which it annexed a definite easement of flowage of water with a given fall. The assessors of Lawrence in 1909 made a valuation of the mill sites merely as land, and then enhanced this valuation by $4,000, for each mill power appurtenant to the land, the aggregate of values thus assessed being $568,333. The Essex Company had developed, in addition to the so called "permanent water power," a considerable surplus water power, which was disposed of to the several mill owners under a different form of agreement, not perpetual in terms, and terminable by either party. The commissioner found "that upon the basis of replacement values the items of real estate and machinery" of the Essex Company, "exclusive of the property wholly devoted to navigation, had on the first of May, 1909, a fair cash value of $898,000" (which seems to have been used in subsequent computations), and that "this water plant upon the basis of its productive power had a market value approximately $1,000,000." It is not certain, from this language, that the true rule was followed by the commissioner. Original cost with deductions, if any, for depreciation, replacement cost and productive power are all legitimate elements bearing upon true value, but no one of them is decisive. The standard established by the law is fair cash value, having reference to any and all uses to which the property is reasonably adapted. Blackstone Manuf. Co. v. Blackstone, 200 Mass. 82, 89. Farmington River Water Power Co. v. County Commissioners, 112 Mass. 206, 217. Smith v. Commonwealth, 210 Mass. 259, 261, and cases there cited. But as the conclusion of the report is a statement of "the fair cash value for taxation" and as no exception was taken or ruling made upon this point, the finding in this respect must be treated as final. The argument in behalf of the city, to the effect that property is escaping taxation under the rule adopted, would have been pertinent upon the question of fact as to the fair cash value of the real estate and machinery. That question is not before us, but was settled by the commissioner.
Water power has been held to be "a capacity of land for a certain mode of improvement, which cannot be taxed independently of the land. Boston Manuf. Co. v. Newton, 22 Pick. 22." Lowell v. County Commissioners, 152 Mass. 372, 383. Land upon the bank of a river and in its bed where there is a fall and adjacent land adapted for flowage may have a largely increased worth in the market by reason of these characteristics, which may be made available for valuable use in different ways.
The Essex Company as the owner of the entire water power development with contiguous land had a right to carve its property by selling fractional parts as sites for mills with power rights appurtenant and by retaining other parts upon which are located the dam and canals, and to assume by contract with the purchasers of the sites the burden of maintaining the dams and other structures, by which the capacity for power of the river water might be made available in perpetuity. As all the real estate constituting the original property unit of the Essex Company, including that now owned by its grantees, lies in a single municipality, no conflict of jurisdiction arises. See Pingree v. County Commissioners, 102 Mass. 76; Blackstone Manuf. Co. v. Blackstone, 211 Mass. 14. The rights of the Essex Company and the owners of the mill sites as to each other need not be analyzed. When the mill powers became by use and by conveyance or contract parcel of the several mill sites, they were properly taxable with them, not as distinct and independent items of property, but as increasing the value of the land. Flax Pond Water Co. v. Lynn, 147 Mass. 31. If the Essex Company had retained ownership of its original real estate unit, its value would have comprehended the land, its capacity for utilizing the force of the river for power and the structures by which this capacity had been developed. Assuming that this was the most valuable use to which the land could be put, these elements in combination would have made up the entire value of the land. Since it has divided its real estate unit by selling some of its land and incorporating therewith a part of the capacity of the river to produce power, the land value of that which is left must be diminished. If it has acquired as a part of these sales valuable rights to rent, these do not constitute real estate. The capacity of its land for improvement by dams and canals to utilize the fall of the river for power was single; whatever part of it is treated as annexed to the mill sites must be subtracted. In reaching this result, the enhancement of value of the land occupied by the several mills by reason of the mill powers in use annexed to them must be considered. The land upon and near the river and canals without doubt was affected in value by reason of its location, so that upon water wheels installed thereon water might be turned from the canals. But the absolute and perpetual right to have a definite quantity of water turned upon such wheels was a different and additional element of value. The value of the land of the Essex Company with dam and canals upon it having a capacity in conjunction with the river and its fall of developing one hundred and forty-two and one-twelfth permanent mill powers would be much greater in reason if the right to the use of these mill powers had been not annexed in perpetuity to other parcels of real estate. The valuable uses to which the land of the Essex Company could be put, including that of developing the capacity of the river for power, should be considered in estimating its fair cash value. The commissioner appears to have done this, for he reports that he has considered the "presently and prospectively profitable" commercial uses of the land.
It follows that so far as the capacity of the water of the river to produce power developed by the structures of the Essex Company has been assessed by enhancement of the several mill sites, to the same extent its land and structures should be diminished in the valuation for taxation which otherwise would be placed upon them.
All the requests for rulings by the city of Lawrence were refused rightly. The case is governed by Lowell v. County Commissioners, 6 Allen, 131, which the commissioner seems to have followed upon this point.
Abatement granted with interest and costs. Judgment to be entered for the petitioner in accordance with the finding and the report of the commissioner.