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§ 4615. -Water rights and water power. It is a generally conceded principle, according to the Supreme Court of Rhode Island, that water rights and water power are not taxable independently of the land to which they are appurtenant or incident.8

As between different owners and different taxing districts, water power is an element in the taxable value only of the property in connection with the use of which such power is applied.9

8 Slatersville

Finishing Co. V. Greene, 40 R. I. 410, L. R. A. 1917 F 585, 588, 101 Atl. 226. "For the purpose of taxation," said the court, "the right to use the water of a stream and the water power that arises from controlling the flow of its current must be considered as appurtenant to and an incident of some land."

See also Blackstone Mfg. Co. v. Inhabitants of Blackstone, 200 Mass. 82, 18 L. R. A. (N. S.) 755, 756, 85 N. E. $80; Boston Mfg. Co. v. Newton, 22 Pick. (Mass.) 22.

"Running water is not property, and is not taxable. So water power, as such, is not taxable. It was so decided in the Auburn Case [Union Water-Power Co. v. Auburn, 90 Me. 60, 37 L. R. A. 651, 60 Am. St. Rep. 240, 37 Atl. 331]. But land upon which a mill privilege exists is taxable, and the value of the land may be greatly enhanced by the fact that its topography is such that a dam may be maintained across a stream upon it, and water power thereby created. The capability of the land for such use, and the probability or certainty, as the case may be, of its use, certainly affects its value. Such is the law of the Buxton Case [Saco Water Power Co. v. Buxton, 98 Me. 295, 56 Atl. 914].” Penobscot Chemical Fibre Co. v. Bradley, 99 Me. 263, 59 Atl. 83.

A mill company, owning riparian land in adjoining taxing districts is not entitled to relief from a local tax on the part of the land lying in one

of such districts, which land, although flooded as a result of the company's construction of a dam at a point in the stream in the other district, has been assessed as a mill privilege—a basis of assessment not open to objection unless by reason of the flooded condition of the land-on the ground that either the company's mill privilege and water rights in the district in which the flooded land is situated have been destroyed as elements of value to be considered in assessing such land in such district, or the mill privilege and water rights have become a part of and have increased the value of the water rights appurtenant to the company's mill in the other district and are taxable only in such district. Slatersville Finishing Co. v. Greene, 40 R. I. 410, L. R. A. 1917 F 585, 101 Atl. 226.

9 Boston Mfg. Co. v. Newton, 22 Pick. (Mass.) 22. To the same effect, Union Water-Power Co. v. Auburn, 90 Me. 60, 37 L. R. A. 651, 60 Am. St. Rep. 240, 37 Atl. 331, in which the court, citing Amoskeag Mfg. Co. v. Town of Concord, 66 N. H. 562, 32 L. R. A. 621, 34 Atl. 241; Winnipiseogee Lake Cotton & Woolen Mfg. Co. v. Gilford, 64 N. H. 337, 10 Atl. 849, and Cocheco Mfg. Co. v. Strafford, 51 N. H. 455, expressly recognized the fact that a different doctrine prevails in New Hampshire." See the reference, in Slatersville Finishing Co. v. Greene, 40 R. I. 410, L. R. A. 1917 F 585, 101 Atl. 226, to the dissenting opinion of Justice Emery in Union Water-Power Co. v. Auburn,

§ 4616. Assessment and valuation. The questions of assessment and valuation have frequently been touched upon heretofore in dealing with the various limitations and restrictions on the taxing power, and reference must be made to the different sections in which such limitations and restrictions are considered for many of the propositions which otherwise would be set out here.

Technically speaking, an assessment is an official estimate of the sums which are to constitute the basis of an apportionment of a tax between the individual subjects of taxation within the district. It does not, therefore, of itself lay the charge upon either person or property, but it is a step preliminary thereto, and which is essential to the apportionment. As the word is more commonly used, however, an assessment comprehends two processes, that of listing the persons, property, etc., to be taxed, and that of estimating the sums which are to be the guide in an apportionment of the tax between them. When this listing and estimating are completed in such form as the law may have prescribed, nothing remains to be done, in order to determine the individual liability, but the mere arithmetical act of dividing the sum to be raised among the several subjects of taxation, in proportion to the amounts which they are respectively assessed. Sometimes the word "assessment" is used as implying the completed tax list, that is, the list of persons or property to be taxed, with the estimates with which they are chargeable, and the tax duly apportioned and extended upon it; but this use of the word is unusual except where the levy is apportioned by benefits, and in such cases the act of determining the amount of the benefits is of itself, under most statutes, a determination of the individual liabil ity, and the result only needs to be entered upon the roll or list to complete the levy.10

An assessment, when taxes are to be levied upon a valuation, is manifestly indispensable. It is required as the first step in the proceedings against individual subjects of taxation, and is the foundation of all of the steps which follow it. Without an assessment the proceedings have no support and are nullities. The assessment is, therefore, the most important of all the proceedings in taxation, and the statutory provisions to insure its accomplishing its office are com

supra. In Blackstone Mfg. Co. v. Inhabitants of Blackstone, 200 Mass. 82, 18 L. R. A. (N. S.) 755, 757, 85 N. E. 880, the court suggests that the reasons for the decision in Boston Mfg.

Co. v. Newton, supra, which do not
appear in the opinion in that case, are
found in the Massachusetts Mill Act.
10 Cooley on Taxation (3rd Ed.), p.
596.

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monly very full and particular.11 It is wholly beyond the scope of this chapter, however, to consider such provisions in detail. All that can be done is to note a few illustrative propositions.12

The legislature has the power to require the owner of property to report it for the purpose of taxation in such form or manner as the law-making branch of the government may deem best,13 and in some of the states property owners are required to make written exhibits to the assessor.14 The list returned, however, does not constitute an assessment, but only aids in obtaining a true description of taxable property and is evidence from which an assessment may be made.15 Nor is listing by the property owner a prerequisite to a valid assessment, it being the assessor's duty, when the owner fails to furnish the list required by law, to assess the property on information received from other sources.16

While the statute itself commonly determines what degree of conclusiveness shall attach to the list, it may be laid down as a general proposition that the assessors are not concluded thereby.17 So the

11 Cooley on Taxation (3rd Ed.), p.

597.

12 A county which has received from a railroad company, pursuant to an assessment under an unconstitutional statute, a larger amount of tax than it would have been entitled to had the assessment been made under a valid statute, cannot set up the invalidity of the statute against the company and, by thus nullifying the assessment, render it possible to assess the company in the manner permitted had no assessment whatever been made. Franklin v. Nashville, C. & St. L. Ry., 12 Lea (Tenn.) 521, 541.

13 Com. v. Farmers' & Shippers' Leaf Tobacco Warehouse Co., 107 Ky. 1, 52 S. W. 799.

14 The property of a dissolved mutual life insurance company which is in the hands of the receivers of the company awaiting distribution among its creditors does not belong to such receivers, nor are they the "trustees" thereof, within the meaning of statutory provisions requiring persons, to whom taxable property belongs, and trustees to bring in lists

and make returns for taxation. Brooks v. Town of Hartford, 61 Conn. 112, 23 Atl. 697, distinguished in Pope v. Town & City of Hartford, 82 Conn. 406, 74 Atl. 751.

15 Oregon & W. Mortg. Sav. Bank v. Jordan, 16 Ore. 113, 17 Pac. 621.

The lists returned by individual taxpayers do not constitute the assessment roll, but such roll is the list made by the assessor. Vicksburg Bank v. Adams, 74 Miss. 179, 21 So. 401.

16 Pentecost v. Stiles, 5 Okla. 500, 49 Pac. 921.

A statute giving tax officials the right to examine the books and papers of property owners for the purpose of listing and assessing their property does not violate the constitutional prohibition against searches and seizures. Building & Loan Ass'n v. State, 156 Ind. 463, 60 N. E. 146.

unreasonable Co-operative

17 Humphreys v. Nelson, 115 Ill. 45, 4 N. E. 637; Felsenthal v. Johnson, 104 Ill. 21; Thompson v. Tinkcom, 15 Minn. 295; State v. Reed, 159 Mo. 77, 60 S. W. 70.

value of property and securities contained in the sworn statement, made by the president of a corporation, showing the corporation's capital stock and accumulated surplus and also the value of the securities exempt from taxation, is not binding upon the assessor.18 If, however, the list is in due form, it is taken as prima facie correct, and the assessors add to it in making up the assessment only as the statute permits.19 On the other hand, in the absence of any evidence of fraud, accident or mistake, a property owner is bound by his schedule of his taxable personalty.20

While the Supreme Court of the United States has held that a domestic railroad company will be estopped from claiming that the "franchise within the state" returned by it in the verified statement of its taxable property which it was required by law to furnish to the state board of equalization included franchises which had been granted to it by the federal government and which therefore

cers.

Unless made so by statute, a corporation's return for assessment is not conclusive upon the taxing offiSan Francisco & N. P. R. Co. v. State Board of Equalization, 60 Cal. 12; St. Louis, V. & T. H. R. Co. v. Surrell, 85 Ill. 535; Chicago, B. & Q. R. Co. v. Paddock, 75 Ill. 616.

Under the South Dakota statute, the board of assessment is not concluded by the value placed by an express company's statement upon the company's property, but may take into consideration the company's contracts with railroad companies. State State Board of Assessment & Equalization, 3 S. D. 338, 53 N. W. 192.

V.

18 Newton Trust Co. v. Atwood, 77 N. J. L. 141, 71 Atl. 110.

The state board of equalization is not bound, in assessing railroad property, by the valuation fixed by the company. Illinois & St. L. Railroad & Coal Co. v. Stookey, 122 Ill. 358, 13 N. E. 516.

19 Cooley on Taxation (3rd Ed.), p. 617.

20 In re Bank of Marion, 153 Ill. 516, 39 N. E. 118.

"An assessment made on a statement returned in compliance with the statute should be a finality, and not

be set aside or disturbed unless it be overcome by the most satisfactory proof that it is erroneous in fact," and a corporation cannot avoid the return of its officer "unless on proof of conduct on his part in fraud of the company. But this rule cannot be invoked to prevent a receiver from attacking a franchise tax based on a return made only shortly before his appointment. Kirkpatrick v. State Board of Assessors, 57 N. J. L. 53, 29 Atl. 442.

The return made by an agent of a corporation to the state board of assessors as to the amount of corporate stock issued and outstanding is not conclusive against the corporation when the tax on such stock is brought into court by a direct proceeding, by the corporation, to test its legality, since the legal basis of the tax is the capital stock issued and outstanding and not the return thereof, and, if by mistake the return states such stock to be more than it really is, the corporation may show the truth and have the tax reduced even though the amount assessed has been paid. Arimex Consol. Copper Co. v. State Board of Assessors, 69 N. J. L. 121, 54 Atl. 244.

were not taxable by the state, and that this is true regardless of the fact that the statement was made on a printed form prepared by the board,21 the Supreme Court of Massachusetts has held that a list which, by mistake of the owner's rights, is made to embrace property not liable to taxation, will not estop the owner from claiming an abatement as to the exempt property.22 Thus, in a case decided by the latter court, it was held that a water company, vested with the right of eminent domain, is not estopped to claim that its land, taken in the exercise of such right or acquired by purchase, and used for the public purpose of supplying water to the town and the inhabitants of the town in which its plant is located, is not taxable-there being no statute expressly providing to the contrary-by reason of its having included such land in its list of taxable property returned to the assessors.23 But a taxpayer cannot complain of any mere irregularity in the action of the assessors, into which they have been led by an error or imperfection in his own list not affecting his substantial rights.24

In the matter of the assessing agency, the statute, of course, controls. In a New Jersey case, it was held that the fact that part of a mass of railroad property is subject to local taxation does not justify the local authorities in taxing the entire mass when the other part thereof is assessable only by the state board of taxes and assessments and, by it, only for state purposes, and that it is immaterial, as far as this matter is concerned, that it would be difficult to separate the mass into the parts thus separately taxable.25 But the general rule of law that personal property, as to its situs, follows the domicile of its owner cannot be invoked to invalidate the valuation of a railroad

21 Central Pac. R. Co. v. California, 162 U. S. 91, 40 L. Ed. 903.

A corporation cannot call in question the validity of a statement given by a proper officer to the assessor, as required by statute. State v. Northern Trust Co., 73 Minn. 70, 75 N. W. 754.

A railroad company is bound by the statement in its schedule that certain land owned by it is not part of its right of way. Iowa Cent. R. Co. v. People, 156 Ill. 373, 40 N. E. 954, overruling Peoria, D. & E. R. Co. v. Goar, 118 Ill. 134, 8 N. E. 682.

An overvaluation by a corporate officer will not entitle the corporation

to recover back the proportionate part of the taxes paid. Cerbat Min. Co. v. State, 29 Hun (N. Y.) 81.

22 Charlestown v. Middlesex, 109 Mass. 270.

23 Milford Water Co. v. Inhabitants of Hopkinton, 192 Mass. 491, 78 N. E. 451, citing Moors v. Street Com'rs, 134 Mass. 431; Charlestown v. County Com'rs, 109 Mass. 270; Dunnell Mfg. Co. v. Pawtucket, 7 Gray (Mass.) 277. 24 Cooley on Taxation (3rd Ed.), p.

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