Boston & M. R. R. v. State

• Decision Date: 12 March 1886
• Citation: 63 N.H. 571,4 A. 571
• Parties: BOSTON & M. R. R. v. STATE.
• Court: New Hampshire Supreme Court

4 A. 571

63 N.H. 571

BOSTON & M. R. R.

v. STATE.¹

Supreme Court of New Hampshire.

March 12, 1886.

Appeal from the assessment of the plaintiffs' tax of 1884. Facts agreed:

The board of equalization valued the plaintiffs' road in this state at $2,000,000, and the tax which was assessed thereon the plaintiffs paid, under protest, October 30, 1884. This appeal was at once taken, on which the valuation was reduced $200,000, and an order was made reducing the tax $2,473.40, which was certified to the state treasurer, who gave credit for that sum on the plaintiffs' tax due October 30, 1885. The plaintiffs claim one year's interest on the reduction.

Albin & Martin, for plaintiffs.

The Attorney General, for the State.

BINGHAM, J. The plaintiffs were required by law "to pay an annual tax as near as may be in proportion to the taxation of other property in all the cities and towns in the state." Laws 1881, c. 53, § 1. It has been adjudged that the plaintiffs were wrongfully required to pay the sum of $2,473.40 more than their legal annual tax for 1884, and paid the same to the state, under protest, October 30, 1884. The plaintiffs claim that they were entitled, not only to the sum wrongfully taken, but to interest on the same to the time it was applied to their use. They could not be taxed for a greater sum than their proportional and equal share with the other property in the state, ascertained as nearly as it reasonably could be. Railroad v. Slate, 60 N. H. 87. This, however, has been done, and the taking and detention of the principal sum was the act of the defendant, and not the fault of the plaintiffs.

In actions of tort the ordinary rule of damages is the value of the property taken, with interest. Felton v. Fuller, 35 N. H. 226; Adams v. Blodgett, 47 N. H. 219; Thompson v. Railroad, 58 N. H. 524; Parrott v. Ice do., 46 N. Y. 361, 369; Schwerin v. McKie, 51 N. Y. 180, 187.

A party aggrieved at the decision of the board of equalization may apply by petition, within one year, "to the supreme court at its law term, which shall give such notice to the parties, and such hearing, and make such orders in the same, as justice may require." Gen. Laws, c. 61, § 9. The statute gives the court, in this proceeding, power to determine the question now raised.

Laws 1881, c. 53, § 1, provides that "the collection of any tax assessed against any railroad corporation shall be made, and the amount thereof distributed, as by law directed, notwithstanding any application of any such corporation for an abatement of the same;...