Inhabitants of Dover v. Maine Water Co. , 90 Me. 180 ( 1897 )

Walton, J.

This is an action against a water company to recover a town tax. Payment of the tax is resisted on several grounds.

I. Exemption. The aqueducts, pipes and conduits of water companies are exempt from taxation when the town takes water therefrom for the extinguishment of fires without charge. It. S., c. 6, § 6, cl. 10. The defendants claim exemption under this provision of the statute. The claim can not be sustained. The evidence fails to show that water is so taken by the town. The water company furnishes water to a village corporation for such a purpose. But not without charge. Tt is paid for all the water so furnished.

IT. Illegality. It appears that the assessors omitted to tax the town poor-farm and a small parcel of land on which an engine house stands. They also omitted to tax the land on which the county court house stands and the hall in which the town meetings are held. And the court is asked to determine if these omissions did not render the entire assessment illegal and void. We think not. If such omissions should be held to vitiate and render invalid the entire assessment, we doubt if there is one in the state that could be sustained. The consequences of such a doctrine are enough to condemn it. No case is cited in support of such a doe-tripe. The contrary has been held. Williams v. School District in Lunenburg, 21 Pick. 75; Watson v. Princeton, 4 Met. 599.

III. Non-residence. It is' claimed that the defendant corporation is not an inhabitant of the town of Dover; that its principal place of business is in Gardiner; and, consequently, that its personal property is not taxable in Dover; and it is insisted that its reservoirs, pipes and hydrants should be regarded as personal property. It is conceded that the court held otherwise in Paris v. Norway Water Company, 85 Maine, 330. But it is claimed that that decision is of doubtful authority, and should be disregarded. It was there held that the pipes, hydrants and conduits of a water company are, under the tax laws of this state, real estate, and taxable in the town or city where they are situated. Thai case was ably argued and carefully considered, and we think the question must be regarded as res judicata.

It is possible that some articles of personal property were included in the tax sued for; but of this there is no proof. Nothing appearing to the contrary, it is to be presumed that the assessors did not exceed their authority, and that they included no property in their assessment except what was legally taxable.

IY. Costs. It is claimed that, in any event, the plaintiffs can not recover costs. Act 1885, c. 350. This statute provides that the defendant shall not be liable for costs unless the tax sued for was first duly demanded. It is insisted that such a demand is not proved. We think the proof is sufficient. It appears that the collector of taxes demanded payment of the tax of the company’s agent or superintendent who had charge of its works in Dover, and that the agent of the town, who was duly authorized, to commence the action, first demanded payment of the tax of the president and directors of the company in writing. We think the proof sufficient to entitle the plaintiffs to costs.

The case is before the law court on report. Upon the proofs presented, it is the opinion of the court that the plaintiffs are entitled to judgment for the amount of the taxes sued for and costs.

Judgment for plaintiffs.