Bor. Of Fenwick v. Town Of Old Saybrook.

• Decision Date: 15 May 1946
• Citation: 47 A.2d 849,133 Conn. 22
• Court: Connecticut Supreme Court
• Parties: BOROUGH OF FENWICK v. TOWN OF OLD SAYBROOK.

133 Conn. 22

47 A.2d 849

BOROUGH OF FENWICK

v.TOWN OF OLD SAYBROOK.

Supreme Court of Errors of Connecticut.

May 15, 1946.

Appeal from Court of Common Pleas, Middlesex County; Parmelee, Judge.

Proceeding by the Borough of Fenwick against the Town of Old Saybrook for relief from the action of the board of assessors of the defendant town in including in the assessment list certain property of the plaintiff claimed to be exempt from taxation, brought to the Court of Common Pleas and tried to the court. Judgment for the defendant and the plaintiff appeals.

Error and case remanded with direction.

Joseph F. Berry and William E. C. Bulkeley, both of Hartford, for appellant.

Morris Tyler, of New Haven, for appellee.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS and DICKENSON, JJ.

JENNINGS, Judge.

The question to be decided is whether property owned by the plaintiff, a municipal corporation, is exempt from taxation under the provisions of General Statutes, § 1163(4). The statute reads: ‘The following-described property shall be exempt from taxation: * * * (4) except as otherwise provided by law, property belonging to, or held in trust for, a municipal corporation of this state and used for a public purpose * * *.’

In the beginning of its application to the court, the borough states that it is ‘appealing from the Board of Assessors' of the defendant town. Such an appeal is unknown to our law. The application was evidently brought under the provisions of § 1201 of the General Statutes as amended by § 165f in the Supplement of 1941. In two recent cases we have pointed out that the remedy given by this statute is not an alternative to an appeal from the board of relief and that a judgment under it is not directed to bringing about a change in the assessment list, but that the statute is intended to afford relief against the collection of an illegal tax. State ex rel. Waterbury Corrugated Container Co. v. Kilduff, 128 Conn. 647, 649, 25 A.2d 62; Cohn v. Hartford, 130 Conn. 699, 702, 37 A.2d 237, 152 A.L.R. 604. The application to the court in the instant case complied in all respects with the requirements of § 165f and both parties have argued the issue as though it was within the provisions of that statute. We shall, therefore, disregard the description of the proceeding as an appeal from the board of assessors and treat it as an application under the statute for the relief it authorizes. This relief, available under the plaintiff's general prayer for relief, would be a judgment that the taxes based on the assessment in question are not justly due. State ex rel. Waterbury Corrugated Container Co. v. Kilduff, supra.

The following facts are not in dispute. The borough of Fenwick is a peninsula of land containing about 235 acres and bounded northerly by the waters of a cove; easterly, by the Connecticut River; southerly, by Long Island Sound; and westerly, by other land in the town of Old Saybrook, within which the borough lies. The terrain is generally flat and not greatly above the level of the surrounding waters. The borough is inhabited by a small colony and has no year-round residents. It was chartered in 1899 by special act of the General Assembly. 13 Spec.Laws 231. In 1899, a corporation known as the Fenwick Hall Company was organized to take over certain properties within it. 13 Spec.Laws 176. In the fall of 1942, before the taxing date, October 1, the Fenwick Hall Company, Newton C. Brainard and Morgan B. Brainard made a gift to the borough of certain lands within it. The lands so deeded constituted 62 per cent of the total area of the borough or 146 acres. The warden and burgesses of the borough accepted these gifts.

The quitclaim deeds from the three donors all contained a provision substantially as follows: ‘The above described premises are conveyed to the releasee herein so long as used for park or recreational purposes in accordance with the terms of an agreement between the releasee herein and the releasor herein and other parties, dated September 17, 1942, to be recorded in Old Saybrook Land Records, but if said premises are no longer used in accordance with the terms of said agreement for either or both of the said purposes, then said premises, with all additions and improvements thereon, shall revert to the releasor herein, or its successors or assigns.’

The agreements entered into, dated September 17 and 19 respectively, and recorded in Old Saybrook Land Records, stated that in consideration of the conveyances made the borough covenanted and agreed with the releasors as follows: ‘1. Said premises shall be used for park or recreational purposes in accordance with the terms of said deeds and of this agreement. 2. No structure shall be placed or erected on the premises except such structures as are reasonably necessary and incidental to use for park or recreational purposes. No bathhouses may be erected on the premises. No building more than one story in height may be placed on the premises. 3. No sale of food, drink or refreshments of any kind shall be permitted on the premises. 4. No camping or picnicking shall be permitted on the premises.’

The deed from the Fenwick Hall Company excepted from the conveyance and reserved to itself a ‘strip of land six feet in width measured from mean high water level’ along all the water-front property of the cove which borders the borough on the north, a strip 30 feet in width measured from mean high water along all of its property bordering on the Connecticut River on the east, and the beach front property bordering on Long Island Sound on the south.

Included in the area conveyed were a nine-hole golf course and two tennis courts. A park commission was appointed by the warden and burgesses on April 8, 1943, and park rules and fees for the use of the golf course and tennis courts were approved on June 28, 1943. Cards were printed listing the park rules and the fees for the use of the golf course and tennis courts and these were posted at the Riversea Inn, a summer hotel in the borough accommodating about one hundred guests, at the first tee of the golf course and at the tennis courts. No signs designating the property conveyed had been posted on October 1, 1943.

Guests at the Riversea Inn had the use of the golf course both before and after the conveyance. After the conveyance, the use of the golf course and tennis courts was open to any one paying the fees.

These fees were about half what they were before the conveyance with the exception of the daily fee, which remained the same.

The borough made a rather elaborate attack on the finding, claiming that both additions and deletions should be made. This attack centers on the finding that the public made no use of the property between September 17, 1942, and October 1, 1943, the dates in question under the assessment. The borough claims that this finding is made without evidence and that, on the contrary, it was undisputed that, as a matter of fact, the public made extensive use of the property conveyed during the period under consideration. There is no evidence to support this critical finding and it must be stricken out. The finding, in connection with the memorandum of decision, establishes the fact...