Sullivan v. State , 117 Ala. 214 ( 1897 )

HARALSON, J.

1. There is nothing in the first assignment of error. The tax book offered by appellant, defendant below, and not allowed to be introduced, was offered to' show to whom, some of the lands through which the log-ditch — the subject of disputed assessment —ran, were assessed.. In order to levy a tax on this ditch, as a proper subject of taxation, it was of no avail to exempt the defendant from taxation on the ditch, for him to show that it ran through the lands of other persons which had been assessed to them. The ditch might well have run through their lands, and this fact, of itself,, would not show that it was hot defendant’s property, liable to be assessed as such. The evidence tended to show that defendant had arranged with such parties to run his ditch through their lands, and that defendant owhed the ditch.

2. There was no error in refusing the 3d charge asked by defendant.' The witness, Hall, for the State, swore that the ditch was twelve miles long; and another, Tolan, for the defendant, that he did not know positively, but he thought the ditch was eight or ten miles long. The State was entitled to an assessment on the ditch, — if it was defendant’s property, — for its value per mile, for whatever length it may have been shown to be, — for twelve'-or any other length in miles, the jury should find from the evidence, its length was. — 1 Greenl. Ev., § 59. For the same reason, charge 4 was properly refused.

3. Charge 5 was an improper instruction. The ditch, independent of the lands owned by defendant, had a value of its own, separate from that of such lands, and was, of itself, a proper subject of taxation, without reference to the lands through which it ran.

4. Charge 6 was properly refused. It predicates the right of the State to an assessment, on proof that the defendant owned each and every mile of the twelve miles of the ditch. The proof tended to show without conflict, that defendant was its owner, of whatever length ; and even if it had not shown that it was twelve miles long, it would not follow that the State might not assess so much of it as was shown to be defendant’s property. For the same reason charge 7 was properly refused. .The fact that defendant did not claim to own twelve miles.of the ditch, even if shown, which was not done, was not sufficient evidence of itself to disprove his ownership of all or any part of it. He entered no disclaimer of ownership at any time to any part of it, and the proof tended, without conflict, to show, that he was its real owner.

5. Charges 9, 10 and 12 are abstract and tended to confuse and' mislead the jury. The evidence of the witness, Jordan, on which the 10th charge is predicated, was that he had authority from defendant to operate a mill, occupy houses, use stools and have other privileges, and that he had leased the ditch from him. He used the ditch, as his evidence showed, for the purposes of his mill, etc. As to the 12th, the evidence is wanting to show that any other property or improvements of defendant were sought to be assessed in connection with, or as part of, the ditch. There was no error in refusing each of the charges.

6. There was no proof that .all of defendant’s property had been assessed ; but it .was shown, without conflict, that the ditch had not been. The complaint alleged that the assessment as returned by the assessor was incorrect, in that, it failed to' assess any \ralue on twelve miles of log-ditch. The plea of defendant was, that the tax assessment rendered by him was correct. The proof without conflict showed that defendant had not returned in his assessment to the assessor said ditch. Charge 13, therefore, was properly refused.

7. As to the 14th charge, it is sufficient to say, that there is no evidence that the State attempted to force ownership of this property on defendant; and the charge was properly refused as being argumentative, and abstract!.

The general charge should, of course, not have been given for defendant.

The foregoing covers all the errors assigned.

Affirmed.