Sullivan v. Inhabitants of Town of Ashfield

• Decision Date: 25 May 1917
• Citation: 116 N.E. 565,227 Mass. 24
• Parties: SULLIVAN v. INHABITANTS OF TOWN OF ASHFIELD (three cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

227 Mass. 24

116 N.E. 565

SULLIVAN

v.INHABITANTS OF TOWN OF ASHFIELD (three cases).

Supreme Judicial Court of Massachusetts, Suffolk.

May 25, 1917.

On report from Superior Court, Suffolk County; John F. Brown, Judge.

Actions by Lynde Sullivan against the Town of Ashfield. On report from the superior court. Judgment for defendant in each case.Gaston, Snow & Saltonstall, of Boston (L. A. Ford and J. A. Locke, both of Boston, and G. C. Cutler, Jr., of Brookline, of counsel), for plaintiff.

Wm. A. Davenport and Abner J. McLaud, both of Greenfield, for defendant.

RUGG, C. J.

These are actions at law to recover taxes paid under protest. Confessedly the domicile of both Mrs. Sullivan and her daughter, to whom taxes were assessed, had been in Malden for many years. The house in Ashfield was used only for the summer during that period.

A domicile once acquired is presumed to continue until a new one is acquired by actual change of residence with the intention of remaining permanently at the place of removal. Wilson v. Terry, 11 Allen, 206;Whately v. Hatfield, 196 Mass. 393, and cases cited at 394, 82 N. E. 48,13 Ann. Cas. 690. There was no evidence that there was any removal from Malden to Ashfield with intention of establishing a domicile there. The home in Malden was given up in 1908. There was no transfer of any furniture or other property to Ashfield and Mrs. Sullivan and her daughter were at the house in Ashfield only between April and November, 1911. There was no evidence of an intent to remain there, but on the contrary all the evidence upon this point tended to show a purpose to make a home elsewhere.

But the plaintiff cannot recover unless he shows that during the years in question there was no personal property rightly assessable in the town of Ashfield to each as nonresidents. Where there is personal property of a nonresident which is taxable in the town where it is situated, the assessors of that town have jurisdiction to tax and the only remedy of the aggrieved owner for excessive taxation is by abatement. He cannot maintain an action at law. It is immaterial whether the over assessment arises from a too high valuation of property actually owned, or from the inclusion of other property not owned and therefore not rightly subject to taxation. The sole remedy in such case is by petition for abatement. Harrington v. Glidden, 179 Mass. 486, 492, 61 N. E. 54,94 Am. St. Rep. 613;Sears v. Nahant, 221 Mass. 435, 109 N. E. 373.

Dealing first with the first case of the mother, there was no evidence to warrant a finding that she had no property taxable in Ashfield during the years 1910 and 1911. The son testified on this point that during these years he thought there were ‘two horses on the place, but was not sure of this; that if there were, they belonged to his mother.’ Since the burden rested on the plaintiff and since all the rest of the evidence tended to show other personal property there subject to taxation, the plaintiff plainly did not present evidence enough to warrant a finding that the mother had no personal property subject to taxation in Ashfield for those years. These horses being kept in Ashfield throughout the year were taxable there, regardless of the owner's domicile, under St. 1909, c. 490, pt. 1, § 23, ‘Third.’

We come now to the second action to recover taxes assessed to the mother. As to these years the evidence was conflicting touching her ownership of horses, furniture, a buggy and piano. But there was undisputed evidence that during all the subsequent years, as to the taxes of which complaint now is made, she owned and kept in Ashfield a horse lawn mower, which according to one witness ‘consisted of a large iron roller behind a cut-bar and was always run by a horse.’ Another witness testified that ‘the lawn mower is about six feet in width, with a roller edge and knife, and required a horse for motive power.’

A mechanism thus described does not come within the classification ‘farming utensils,’ whch by St. 1909, c. 490, pt. 1, § 5, ‘Eleventh,’ are exempted from taxation. A horse lawn mower is a well-known machine. According to common knowledge it is not usually found among the tools and implements of the farmer. Its ordinary use is not directed to the practice of husbandry nor to the promotion of agriculture, but to the care and...