Statement of case.

APPEAL by the relator from a judgment of the late General Term of the eighth judicial district, affirming the assessment of the respondents as assessors of the town of Dunkirk. The relator is a body corporate, organized under and pursuant to chapter 265, of the Session Laws of 1864, as amended by chapter 34, of the Session Laws of 1866. The relator's organization was completed in the month of December, 1865. By its articles of association, it was authorized to, and did, construct a railroad from a point near the depot of the Erie railway company, in the village of Dunkirk, through various public highways in the towns of Dunkirk and Pomfret, to a point near the Johnson House, in the village of Fredonia. The entire length of the road is three and a half miles less 150 feet, and is wholly within the towns of Dunkirk and Pomfret. The capital stock of the relator is $75,000, divided into 750 shares of $100 each. A little over 300 of these shares have been taken and paid for. The cost of constructing and putting the relator's street railroad in operation was $34,000. The relator's cars are run by horses, and not otherwise.

The relator procured the written consent, of all the persons owning the lands adjoining the public highways, in which its road was built, save one, who owned a strip of land fronting on the highway, about seventy rods.

On the thirty-first day of July, 1869, the respondents, as assessors of the town of Dunkirk, made an assessment against the relator, by name, for three and one-half miles of track for the sum of $5,000, and placed the track in the real estate column of their roll as real property. They treated the track, in making the assessment, as real property.

The relator, in due form of law, objected to the assessment so made by the assessors against it. The assessors refused to alter or change it.

The relator thereupon sued ont a common-law certiorari, to review such decision.

Opinion of the Court, per FOLGER, J.

John Ganson, for appellant, that track of relator's road is not land, within the meaning of the tax laws. (1 R. S., 387, § 2; People v. Board of Assessors, 39 N. Y., 81, 87; Band v. City of N. Y., 2 Sand, 252, 259.) The assessors had no jurisdiction to assess relator as a corporation. (1 R. S., 389, §6; Albany and Schenectady Railroad Co. v. Osborn, 12 Barb., 223; The People v. The Board of Assessors, 39 N. Y., 83.) The assessment should have been, as "non-resident lands." (1 R. S., 389, §§ 1, 2, 3; New York and Harlem Railroad Co. v. Lyon, 16 Barb., 651, 655; Whitney v. Thomas, 23 N. Y., 281, 285; Oswego Starch Factory v. Dolloway, 21 N. Y., 449, 455; Western Transportation. Co. v. Sheu, 19 N. Y., 408; Camel v. The National Protection Insurance Co., 10 How., Pr. R., 403; Hubbard v. The same, 11 How., Pr. R., 149.)

A. J. Parker, for the respondent. The property was properly assessed as lands. (1 R. S., 360, §§ 1, 2; Hoyle v. P. and M. R. R. Co., 51 Barb., 45; Minnesota Co. v. St. Paul Co., 2 Wallace, 609; 32 N. H., 484; Redfield on Railways, 576; M. and H. R. R. Co. v. Clute, 4 Paige, 384, 393; Rood v. N. Y. and E. R. R., 18 Barb., 80, 85; Mohawk and Railroad Co., 4 Paige, 394; 2 Sanford, S. C., 552; The People v. Board of Assessors, etc., 39 N. Y., 87; Craig v. Rochester City R. R. Co., 39 N. Y., 404; Harrison v. Parker, 6 East, 154; Dyson v. Collick, 5 Barn. & Ald., 600; 4 Kent., 432; Stukes v. Nutt, 6 Wend., 465; Sanders v. Wil son, 15 id., 338; Randall v. Crandall, 6 Hill, 342; 1 John, 145; 6 Wend., 465; 19 Wend., 507; 20 Wend., 96; People v. Erie R. R. Co., 52 Barb., 105.)

FOLGER, J. The property assessed in this case, is the track of the relators, consisting of its stringers, ties and rails. This track is laid down in the public highway, and the relators have, or claim, no interest in the land of the highway, save a right to use the same, for the passage of their teams, and vehicles, to and fro over this track. This right they claim, and

Opinion of the Court, per FOLGER, J.

doubtless have. And it includes a right to the constant and exclusive, and for the extent of their chartered existence, the lasting use of the soil, for the support of their track. It is an easement. (Williams v. N. Y. Central R. R. Co., 16 N. Y., 97-109; Craig v. R. and B. R. R. Co., 39 N. Y., 404.) And this is an interest in the land over which it is enjoyed. (Washburn on Easements, 6.) It gives them the right of the exclusive possession, as from time to time they shall need to use any part of it.

By the statutes in relation to assessment and taxation (1 R. S., 360, §§ 1, 2), "all lands*** within this State, whether owned by individuals or by corporations, shall be liable to taxation * * *" "The term 'land' *** shall be construed to include the land itself, and all buildings, and all other articles erected upon or affixed to the same ***. and the terms 'real estate' and 'real property' *** shall be construed as having the same meaning as the term 'land' thus defined."

This does not seem to be But they suggest, that if is always to be presumed,

By force of these provisions, the track of the relators, consisting of stringers, ties, and rails, affixed to the land; is for the purpose of assessment, and taxation, land, real estate, real property. And it is liable to taxation. To some name, or in some way, it should be assessed. seriously disputed by the relators. the assessors did their duty, which then they assessed, to the owners of the fee in the land, over which the highway and the railway run, the land to the center of the highway, and must be presumed to have assessed to them, the land at a valuation affected, and increased by the value of the fixtures, which make the track of the relators. We do not think that such a presumption can be entertained. The facts of the case are too patent and well known, to permit the presumption, that the track was considered as belonging to the owner of the fee, which is little more than a reversion, contingent if at any time in the future, the different rights of way over the land shall cease.

SICKELS-VOL. I. 7

Opinion of the Court, per FOLGER, J.

We are not inclined to give to the terms of the statute, a construction so narrow as that required by the position of the relators. That would be to hold, that buildings and fixtures are not included in the term "land," except as inseparable, in the consideration of the ownership thereof, from the ownership of the fee; and that no right or interest in land, less than the fee thereof, would, for the purpose of assessment, be deemed to fall within the meaning of "land," as set forth in the statute. The statute means, for its purpose, to make two general divisions of property; one all lands, another all personal estates; and then, to be more definite, it declares, that by land, is meant the earth itself, and also all buildings and all other articles erected upon or affixed to the same. We do not think that, when buildings or other articles are erected upon or affixed to the earth, they are not, in the view of the statute, land, unless held and owned in connection with the ownership of a fee in the soil. We are of the opinion, that the statute means that such an interest in real estate, as will protect the erection, or affixing thereon, and the possession of buildings and fixtures, will bring those buildings, and fixtures within the term "lands," and hold them to assessment as the lands, of whomsoever has that interest in the real estate, and owns and possesses the buildings and fixtures. The defend ants were right then, in considering the track of the relators as land, and liable to assessment as such. (See The People v. Beardsley, 52 Barb., 105, since, [September, 1869], affirmed in this court.)

Another serious question raised by the relators is, whether the assessors were correct, in the mode of assessment adopted by them. It does not appear upon the papers as clearly as it might, what this mode was. But we think that so much is to be gathered from them, as to show that the track of the rela tors, was assessed against the company by its corporate name, and as would be the lands of a resident of the town. return of the defendants to the writ of certiorari says that they "assessed the Dunkirk, and Fredonia Railroad Company for three and one-half miles of track, etc., the sum of $5,000.

The

Opinion of the Court, per FOLGER, J.

and placed the same in the real estate column of their assessment roll as real estate." And this phrase of "assessing against the said company," is several times repeated in the return. And at the conclusion of the return it is stated, that "the only question presented, is whether the assessors were justified, in assessing the Dunkirk and Fredonia Railroad Company, *** in the manner above stated." It is to be inferred, that the name of the relators was entered upon the assessment roll; and that the assessment of their track was made against them, as if they were residents of the town. That they were residents of the town, and that their track was land of a resident, is denied by them; and it is claimed, that the assessors erred in not assessing it as non-resident lands.

The question then, is, where is the residence of a corporation formed under the general railroad law, for the purpose of the assessment of its real estate? Or is it to be predicated of it, that it has, or that it needs to have, for such purpose, any residence? There is nothing in that law, requiring from it a designation of the town or county, where its operations are to be carried on, as is the case in the general law for the forma tion of manufacturing companies. (Laws of 1848, chap. 40.) It would, indeed, be impracticable to obey such a requirement, from the very nature of the operations of a railroad company. Hence, the case of Oswego Starch Factory v. Dolloway (21 N. Y., 449), cited by the relator, is not decisive of the question above stated. For that case turned upon the fact, that as required by law, a principal place of business was named in the plaintiff's certificate of incorporation. And the same," in effect, is to be said as to Western Transportation Company v. Scheu (19 N. Y., 408). And it is further to be observed, that in those cases, the assessment complained of was upon the personalty of the plaintiffs. In Conroe v. The Nat. Pro. Ins. Co. (10 How. Pr. Rep., 403), and in Hubbard v. The Same (11 id., 149), cited by the relator, it was held, for the purposes of determining the place of trial of an action, that the place of general business of a corporation was its place of residence. Though it is to be observed, that the charter