Portland Terminal Co. v. City of Portland

• Decision Date: 22 August 1930
• Citation: 151 A. 460
• Parties: PORTLAND TERMINAL CO. v. CITY OF PORTLAND.
• Court: Maine Supreme Court

151 A. 460

PORTLAND TERMINAL CO.

v. CITY OF PORTLAND.

Supreme Judicial Court of Maine.

Aug. 22, 1930.

Exceptions from Superior Court, Cumberland County.

Suit by the Portland Terminal Company against the City of Portland. The Portland Terminal Company took an appeal to a Justice of the Superior Court from the refusal of the local assessors to abate taxes. On exceptions of the City of Portland to order sustaining the appeal.

Exceptions overruled.

Argued before PATTANGALL, C. J., DUNN, STURGIS, BARNES, and FARRINGTON, JJ., and PHILBROOK, A. R. J.

Edward W. Wheeler, of Portland, for plaintiff.

Harry C. Wilbur, of Portland, for defendant.

PATTANGALL, C. J.

On Exceptions. The appellant is a corporation, organized under the laws of Maine, having its principal place of business in Portland, and on April 1, 1929, was operating and has since continued to operate a railroad in this state. It was the owner on April 1, 1929, of certain land and buildings located in Portland and subject to taxation therein under the provisions of section 4, c. 10, Rev. St 1916, which reads:

"The buildings of every railroad corporation or association, whether within or without the located right of way, and its lands and fixtures outside of its located right of way, are subject to taxation by the cities and towns in which the same are situated, as other property is taxed therein, and shall be regarded as nonresident land."

The local assessors placed a valuation upon appellant's land and buildings of $1,702,150 and assessed thereon a tax for the year 1929 of $57, 192.34 with an additional tax for street sprinkling of $436.29.

Included in the assessment was one parcel of land upon which a filling station had been erected. This land was wholly within the located right of way of the railroad and, hence, exempt from taxation under the provisions of section 25, c. 9, Rev. St. 1916, and section 4, c. 10, Rev. St. 1916. The filling station erected thereon was the property of one Foley, who occupied under a lease from appellant, which lease ran for ten years from May 1, 1928, unless sooner terminated by sixty days' written notice.

Appellant presented to the local assessors a petition for abatement of so much of the tax as was assessed on the land and filling station, urging that the one was exempt from taxation and that the other was the personal property of Foley and not taxable to it.

Abatement was refused, appeal taken, and hearing had before a justice of the superior court, with right of exceptions reserved. The appeal was sustained and exceptions were seasonably taken and allowed.

The right of appellant to be heard on appeal was strenuously resisted by appellee. Appellant had not, in accordance with the provisions of section 74, c. 10, Rev. St. 1916, filed with the assessors a list of its taxable property, as required of resident owners, a condition precedent to an appeal from an assessment, by that class of taxpayers. But appellant asserted that because of the provisions of section 4, c. 10, Rev. St., already quoted, it occupied the position of a nonresident taxpayer, so far as its real estate was concerned, and was not obligated to furnish such a list. The presiding justice so construed the statute and found that appellant had the right of appeal, and that the land being within the located right of way of the railroad was not liable to taxation.

The court below also allowed the claim of appellant to an abatement of the tax erroneously assessed against it on the buildings owned and occupied by Foley, but, no exception having been taken to this finding, it is not before us.

The issues presented here are: (1) Was appellant required to furnish a list of its property to the assessors as a condition precedent to its right to be heard on a petition for abatement? (2) Did the lease of the land to Foley constitute an alienation so that it ceased to be a part of the located right of way of the railroad and, therefore, taxable?

The answer to the first question depends wholly upon whether or not appellant, in so far as this land is concerned, is to be regarded as a resident or a nonresident owner.

If the former, having failed to file the required list of property, and not having been excused by the assessors from so doing, it has no right to be heard in abatement, and, assuming that the assessors acted in good faith, no other remedy is open to it. If overvaluation appears, having failed to meet the preliminary requirements of the statute, it must suffer the consequences. The law is well settled on that point.

If a resident taxpayer's property is overvalued, his only remedy is by abatement. Stickney v. Bangor, 30 Me. 404. If property not belonging to him is taxed to him, abatement is still his only remedy. Hemingway v. Machias, 33 Me. 445. If he is assessed for property lying in another town, abatement is the relief and the sole remedy of which he may avail himself. Salmond v. Hanover, 13 Allen (Mass.) 119. All of these propositions are reaffirmed in Gilpatrick v. Saco, 57 Me. 277. If property is taxed to him which does not belong to him, it is merely an overvaluation of his property, a hardship which can only be remedied in one way, namely, by abatement. Bath v. Whitmore, 79 Me. 182, 9 A. 119. If the assessment is too large for any reason, either from including property that the taxpayer does not own or that is exempt from taxation or that cannot lawfully be taxed, it is clearly a case of overvaluation, to be remedied by abatement. Rockland v. Water Co., 82 Me. 188, 19 A. 163. And in default of having complied with the law requiring the filing a...