Flax Pond Water Co. v. City of Lynn
| Decision Date | 05 May 1888 |
| Citation | 16 N.E. 742,147 Mass. 31 |
| Parties | FLAX-POND WATER CO. v. CITY OF LYNN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Chas S. Lincoln, for plaintiff.
The tax imposed on plaintiff's interest was illegal and void. Whether this interest is so described as to give it the character of real estate, or merely an easement, it was not liable to taxation. The deed, however, to the plaintiff, does not purport to convey real estate. The interest described in the several tax deeds is substantially the same as that described in the case of Fall River v. County Com'rs, 125 Mass. 567, and Cheshire v. County Com'rs, 118 Mass. 387. In both of these cases it was held that such an interest was not subject to taxation. The assessors of Lynn have undertaken to impose a tax upon the plaintiff's interest in Flax pond, and a sale has been attempted on account of the non-payment of the tax and deeds made and recorded, the defendant becoming the purchaser. This procedure has placed a cloud upon the plaintiff's title which the defendant should be required to remove. The only adequate remedy which the plaintiff now has to enforce its rights is in equity, and this is the view which this court has heretofore taken in cases of this kind. Russell v Deshon, 124 Mass. 342; Clouston v. Shearer, 99 Mass. 209; Davis v. Boston, 129 Mass. 377. It does not follow, as the defendant's counsel contends in his answer, that, because the plaintiff "has no title in the land," "the selling of said land does not constitute a cloud on any property owned by the plaintiff." It is true that a collector's deed under an illegal tax will pass no title, but it casts a doubt which nothing but a judicial inquiry can dispel. The defendant should be required to undo the mischief it has done,--give such a deed as will place the plaintiff in the same condition, in respect to the records, as it was before the assessment of the tax.
J.W Berry, for defendant.
By Pub.St. c. 11, § 13, taxes on real estate shall be assessed in the city or town where the estate lies, to the person who is either the owner or in possession thereof on the 1st day of May. The plaintiff was the owner of the water, and the dams and sluices connected therewith; the said water being over the land under Flax pond. As the owner of said waters, it was of necessity the occupant of the real estate connected with said waters, consisting of dams and sluices and other real estate. Therefore, under the first tax deed named in the plaintiff's bill, there was a taking and sale of real estate, and it was properly assessed. If the foregoing propositions are true, the plaintiff is not entitled to relief, because it should have been sought within five years from said first taking and sale. Pub.St. c. 12, § 66; Gladwin v. French, 112 Mass. 186 If, as the plaintiff admits, it has no title in the real estate under the water, it has no right to a conveyance from the defendant to it, either in the form of a release, or in any other form. If plaintiff does not own the land, any sale of it by the defendant cannot constitute a cloud upon their title or interest in the water. Suppose the defendant does own the land, and that the water has been illegally sold, the plaintiff will nevertheless have a right to the use of the water, and the defendant can exercise no proprietary rights over it. The decree as to a release of the land should not be made, as the plaintiff has no title to the land by its own admission. Whoever owns the land owns it subject to the right of the plaintiff to have the water over it, and can do nothing to injure the quality of the water. The plaintiff, therefore, can have no interest in the question as to who owns the land.
OPINION
The plaintiff took its deed in 1876, covering all the grantor's right, title, and interest in and to the waters of the pond, and all the dams, sluices, and water-ways connected therewith. It is to be assumed that it took possession thereof, as it now claims, under the deed, and seeks to remove a cloud from its title. Being in possession the tax upon the dam was properly assessed to the plaintiff as a tax upon real estate. If, as the plaintiff avers, it never acquired the title to any real estate connected with the waters of the pond, and does not claim the fee in any real estate connected with said waters, these facts are immaterial, so far as the right of taxation is concerned. It is the policy of the legislation of the commonwealth that all valuable property shall be taxable in some form. The exercise of the right to...
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