Reservation
from Superior Court, Fairfield County; Joel H. Reed, Judge.
Action
by the City of Norwalk to review a refusal of the Board of
Relief of the Town of New Canaan to reduce a tax assessment.
On reservation from the superior court of Fairfield county on
an agreed statement of facts. Decree advised in part for
plaintiff.
Action
in the nature of an appeal from the board of relief of the
town of New Canaan for refusing to reduce the amount for
which the plaintiff had been assessed for taxation by the
assessors of that town, brought to the superior court for
Fairfield county and reserved upon an agreed statement of
facts for the advice of this court. The essential part of the
statement of facts is as follows:
" In pursuance of said provisions of the charter, and
because the necessities of said city and others required the
same, the plaintiff now owns, and for many years last past
and on October 1, 1910, owned and held in the town of New
Canaan, a large quantity of land, with a dam permanently
located thereon, used by the plaintiff for reservoir
purposes
which reservoir is required for the purpose of distributing
water to the inhabitants of said city of Norwalk, and other
persons and corporations. The plaintiff also owns underground
pipes necessary to convey and distribute said water to said
city of Norwalk and other places, a portion of such pipes being situated in said town of New Canaan, and
permanently located therein for the purposes aforesaid, of
which pipes so located in the town of New Canaan 5,600 feet
are located in the highways of said town and 9,900 feet are
located in, upon, or through the rights of way or easements
hereinafter described. The underground pipes, described in
paragraph 4 hereof, commence at the reservoir, described in
paragraph 3 hereof, and run in, upon, or through the
easements or rights of way, and the highways referred to in
paragraph 4 hereof to the city of Norwalk, in one continuous
trunk line. A majority of the inhabitants residing along said
line of pipes have connected their premises therewith, and
are drawing upon and using said water supply by permission of
the water commissioners of the plaintiff city, duly
authorized to grant such permit. The rates charged to those
inhabitants of the defendant town who have received such
permission and have in fact connected with such water pipes
and are using said water, are 50 per cent. greater than the
rates charged to the inhabitants of the plaintiff city, but
said rates, are the same as those charged to the inhabitants
of the town of Norwalk outside of the limits of the plaintiff
city. During the month of October, 1910, the plaintiff made
out and returned to the assessors of said town of New Canaan
a list of its real estate and taxable property, in the manner
prescribed by law, said list being as follows: ‘ 30
acres of land not used for reservoir purposes. Said city is
also the owner of 33 acres of land on which is a dam, and all
of which is used for reservoir purposes, and also owns pipes
and mains, underground, used for the purpose of distributing
water to residents of New Canaan and Norwalk, all of which
together with said 33 acres of land on which is a dam, are
claimed to be exempt from taxation, and are
not hereby returned for taxation.’ The assessors of
said town of New Canaan thereafter added to said list as so
returned the following:
|
Dam located at reservoir
|
$15,000
|
|
Underground mains and pipes located in New Canaan
|
40,000
|
|
Said $40,000 being made up as follows, viz.:
|
|
Underground pipes through private property
|
$25,000
|
|
Underground pipes in highways
|
14,000
|
|
Underground pipes in property of city of Norwalk
|
1,000
|
|
Easements and rights of way
|
$ 2,000
|
|
28 acres land used in connection with reservoir
|
1,120
|
The
assessors valued said land returned, as aforesaid, as
follows:
|
35 acres of land, not used for reservoir purposes
|
$ 1,400
|
"
The city of Norwalk and its predecessor, the borough of
Norwalk, prior to said 1st day of October, 1910, had acquired
by deed from a great number of persons perpetual easements
and rights of way in the lands belonging to such persons
severally, to wit, the right to itself and its successors, to
perpetually maintain in and over such pieces of land pipe
lines and mains for the carrying of water from the dam in
question to the city of Norwalk and for the repairs and
replacing thereof, from time to time, each of such easements
or rights of way having been conveyed to said borough or said
city by deed of conveyance duly executed and
recorded in the public land records of said town of New
Canaan, and on said 1st day of October, 1910, the said city
was seized and possessed of said easements or rights of way,
and had laid and was maintaining by virtue of such deeds the
pipe lines and underground mains referred to in paragraph 4
hereof."
The
easements acquired by the municipality for the laying of its
mains through private property are a mere right therein, and
not an estate in land, inconsistent with that of the owner of
the fee, and taxable as such within the meaning of the
statute.
Louis
Goldschmidt, for plaintiff.
Homer
S. Cummings and Epaphroditus Peck, for defendant.
THAYER, J. (after stating the facts as above).
The
questions upon which the advice of the court is asked are:
" Whether or not, upon the agreed statement of facts the
property of the plaintiff or any part thereof as described
therein is liable to taxation by the defendant; and if it is
partially liable to taxation, what portion of the same is
taxable, and for what amount and in what proportion."
The list which the plaintiffs gave in to the defendant's
assessors included for taxation only the land which was not
used for reservoir purposes.
This
was liable to assessment and properly assessed. West
Hartford v. Board of Water Commissioners, 44 Conn. 360
371. The assessors added to the list the land which the
plaintiff used for reservoir purposes. The plaintiff claims
that this was improper. In West Hartford v. Board of
Water Commissioners, 44 Conn., supra, we held
that lands owned by a municipal corporation and used by it
for reservoir purposes was not liable to assessment for taxes
in an adjoining town where the land was located. This would
be decisive of the question in the plaintiff's favor had
there been no subsequent legislation to affect the matter.
But after that decision was rendered an act was passed, now
section 2321 of the General Statutes, which provides that
land so owned, used and situated shall be set
in the list for taxation in the town where it is situated at
a valuation which...
