Northern Massachusetts St. Ry. Co. v. Town of Westminster

• Decision Date: 27 June 1917
• Citation: 116 N.E. 895,227 Mass. 547
• Parties: NORTHERN MASSACHUSETTS ST. RY. CO. v. TOWN OF WESTMINSTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

227 Mass. 547

116 N.E. 895

NORTHERN MASSACHUSETTS ST. RY. CO.

v.TOWN OF WESTMINSTER.

Supreme Judicial Court of Massachusetts, Worcester.

June 27, 1917.

Appeal from Superior Court, Worcester County; Chas. F. Jenney, Judge.

Appeal by the Northern Massachusetts Street Railway Company from refusal of assessors of the Town of Westminster to abate taxes. Decision for defendant town, and plaintiff excepts, and case comes to Supreme Judicial Court on stipulation. Exceptions overruled, and judgment for respondent.

Green & Bennett, of Holyoke, for complainant.

Wm. A. Loughlin and John F. MaGrath, both of Worcester, for respondent.

DE COURCY, J.

The petitioner in 1916 owned and maintained in the respondent town a high tension power transmission line, which was used in conveying electric current for the operation of its street railway. This line was erected on private land of persons other than the petitioner; the latter owning, by lease or purchase, only the right to maintain its poles and wires over such private land of others. The respondent town duly assessed and levied a tax on this transmission line, and the assessors refused to abate the same; whereupon the petitioner paid the tax under protest and brought this appeal in the superior court under St. 1909, c. 490, pt. 1, § 77. It is agreed that if said power transmission line ‘was not locally taxable by said town, but was illegally assessed by said assessors,’ the petitioner is entitled to judgment for a stipulated sum; otherwise judgment is to be entered for the respondent.

The statute under which these poles and wires were taxed is St. 1913, c. 458, which further amended St. 1909, c. 490, pt. 1, § 23, and reads as follows:

‘Tenth, Underground conduits, wires and pipes laid in public streets, except such as are owned by a street railway company, and poles, underground conduits and pipes together with the wires thereon or therein laid in or erected upon private property or in a railroad location by any corporation, except such poles, underground conduits, wires and pipes of a railroad corporation laid in or erected upon the location of such railroad, and except such poles, underground conduits, wires and pipes laid in or erected upon any right of way owned by a street railway company, shall be assessed to the owners thereof in the cities and towns in which they are laid or erected.’

Plainly this statute made the street railway company taxable for the poles and wires constituting its transmission line unless they were ‘erected upon any right of way owned by’ it. And the controversy narrows down to the meaning of these words as used in the statute.

For the history of the legislation relating to the taxation of poles and wires, to and including St. 1909, c. 439, it is enough to refer to the case of Connecticut Valley St. Ry. Co. v. Northampton, 213 Mass. 54, 99 N. E. 516, where the subject is exhaustively treated. It was therein held that by the term ‘rights of way’ as used in that statute was meant merely the rights which a street railway company has to lay and use tracks in streets already appropriated to the uses of public travel. The tax commissioner, in his report to the Legislature, for the year ending November 30, 1912, made the following recommendation (page 12):

‘Chapter 439 of the Acts of...