Paine v. Board of Assessors of Town of Weston

• Decision Date: 31 March 1937
• Citation: 297 Mass. 173,7 N.E.2d 584
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: JOHN B. PAINE & others v. ASSESSORS OF WESTON.

297 Mass. 173

7 N.E.2d 584

JOHN B. PAINE & others v. ASSESSORS OF WESTON.

Supreme Judicial Court of Massachusetts, Suffolk.

March 31, 1937

March 3, 1937.

Present: FIELD DONAHUE, LUMMUS, & QUA, JJ.

Tax, Assessment nursery stock. Real or Personal Property.

Nursery stock consisting of transplanted trees, more than two years old cultivated for purposes of sale, was properly taken into account as an element of value in assessing the real estate to its owners; and it was immaterial that the nursery trees had been grown by and belonged to and could be removed by a lessee of the real estate.

APPEAL, filed in the Supreme Judicial Court for the county of Suffolk on December 31, 1936, from a decision by the Board of Tax Appeals.

J. A. Plummer, for the taxpayers. W. F. Farr, for the Board of Assessors.

FIELD, J. This is an appeal from a decision of the board of tax appeals refusing abatement of a tax assessed on real estate in the town of Weston as of January 1, 1935. The case was heard by the board on an agreed statement of facts.

The taxpayers on January 1, 1935, were the owners of a certain parcel of real estate which was valued by the assessors at $34,500, divided as follows: "House . . . . $850 Carriage House 150 247.70 acres of land . . . . 33,500." The "item `247.70 acres of land $33,500' took into account, as an element in the value of the land, the value of certain nursery stock planted therein." It was agreed that "if the assessors in assessing said land should have taken into account said nursery stock, this petition shall be dismissed," but that if "they should not have done so . . . said assessed value shall be reduced by $2,900 and . . . an abatement of the tax in the amount of $71.05 shall be granted."

These facts were agreed: "All of the stock in question was planted in open ground, none in hothouses or in boxes and pots. The bulk of the nursery stock consisted of white and red pine and Norway spruce, and included stock for landscaping and for afforestation purposes. . . . [The] nursery stock, whether for landscaping or afforestation purposes, is planted in a seed bed and allowed to remain there for two years. Stock for afforestation purposes is then transplanted to another bed and remains there until sold. It must be sold when four or five years old and not more than ten or twelve inches high or it loses most of its value. Stock for landscaping purposes is transplanted from the seed bed into rows and at intervals of one, two or three years again transplanted. It may be kept several years longer than stock for afforestation purposes and may be permitted to grow to a much larger size without losing its value. Of the nursery stock on said land on January 1, 1935, between one third and one half had been transplanted during the previous year. All the nursery stock was more than two years old [and] between one foot and five feet in height. . . . all said nursery stock had been placed on the land by a tenant of said land holding under a lease and . . . said tenant had the right during or at the end of the term of his lease to remove any or all of the nursery stock and to sell the same for his own account."

The assessors rightly took into account "as an element in the value of the land" the value of the nursery stock planted therein.

Real estate is assessed to the owner or person in possession thereof. G. L. (Ter. Ed.) c. 59, Section 11, as amended by St. 1933, c. 254, Section 29. The real estate tax, with certain exceptions not here material, is assessed upon the whole real estate on its value as a unit and not upon the interest therein of the person assessed. Crocker-McElwain Co. v. Assessors of Holyoke, 296 Mass. 338 , 344-345. This is true of leased real estate. Donovan v. Haverhill, 247 Mass. 69 .

Newton Building Co. v. Commissioner of Corporations & Taxation, 285 Mass. 471, 473-474. And even when by agreement anything ordinarily a part of the real estate is to be treated as personal property between the parties it remains a part of the real estate for the purpose of taxation. Milligan v. Drury, 130 Mass. 428 , 430. McGee v. Salem, 149 Mass. 238 . If, therefore, the nursery stock here in question was in its nature part of the real estate assessed it was properly taken into account as an element of value in assessing such real estate to the owners thereof, even though the nursery stock belonged to the lessee and could have been removed by him.

G. L. (Ter.

Ed.) c. 59, Section 3, provides that "Real estate for the purpose of taxation shall include all land within the commonwealth and all buildings and other things erected thereon or affixed thereto." The nursery stock was a part of the real estate within this definition.

Growing trees permanently located on land -- usually described as standing wood and timber but including growing shade and ornamental trees -- are part of the freehold until severed therefrom though by a contract of sale of such trees they pass to the purchaser as personalty when severed. Claflin v. Carpenter, 4 Met. 580, 583. Nettleton v. Sikes, 8 Met. 34. Douglas v. Shumway, 13 Gray, 498, 502. Fletcher v. Livingstone, 153 Mass. 388 , 390. This is the ordinary rule applicable to things growing on land, though for some purposes "growing crops, which owe their annual existence to the cultivation of man, are treated as chattels even while still annexed to the soil." Commonwealth v. Galatta, 228 Mass. 308 , 311. See also Mulligan v. Newton, 16 Gray, 211, 212; West Springfield Trust Co. v. Hinckley, 258 Mass. 157, 163. Compare Calhoun v. Curtis, 4 Met. 413, 415. This exception with respect to growing crops, described as emblements and fructus industriales, is limited in scope both historically and in its modern application. Co. Lit. 55b. II Blackstone Commentaries, 123, 404. Tiffany, Real Property, Sections 257-263, and cases cited. For the purpose of taxation -- apart from the statutory provisions dealing with classified forest lands not here applicable, G. L. (Ter. Ed.) c. 61 -- growing trees permanently located on land are a part of the real estate. See French v. Lyme, 77 N.H. 63. The statute dealing with classified forest land so recognizes. Whether for the purpose of taxation growing annual cultivated crops are a part of the real estate is a question which, by reason of the assessment date, is not likely to arise. It...