Winnipiseogee Lake Cotton & Woolen Manufacturing Co. v. Gilford , 67 N.H. 514 ( 1893 )

The finding that the plaintiffs' charter conveyed to them rights in the lake, as stated in the case, is favorable to the defendants. Its tendency was to increase the market value of the plaintiffs' real estate. The defendants have no occasion to object to it; and the plaintiffs have waived their objection by moving for decrees in accordance with conclusions of law and fact, founded, in part at least, upon the finding.

It does not appeal that the plaintiffs' land in Gilford was bounded by the lake. If it was not, the ruling that the state owns the shore of the lake between high and low water marks was immaterial. If it was so bounded, and if, according to the true construction of the conveyance, the plaintiffs' title extends to low water mark, the error in the ruling was substantially neutralized by the finding that the state conveyed to the plaintiffs in their charter the rights above mentioned. Such rights would give the plaintiffs much the same use of the shore that they would have if they owned it. Concord Manufacturing Co. v. Robertson, 66 N.H. 1, 17, 18. The difference between the value of the shore itself and the value of such rights in it must be slight. As it appears improbable that the defendants' rights were prejudiced by this ruling, and as they have not specifically objected to it, the question of law involved in it is not considered.

"The selectmen shall appraise taxable property its full and true value in money, as they would appraise the same in payment of a just debt due from a solvent debtor" (P. S., c. 58, s. 1), that is, "at its just value." P. S., c. 233, s. 1. Such value is the market value, or the price which the property will bring in a fair market, after reasonable efforts have been made to find the purchaser who will give the highest price for it. State v. James, 58 N.H. 67; Atlantic St. Lawrence Railroad v. State, 60 N.H. 133,140; Low v. Railroad, 63 N.H. 557, 562, Winnipiseogee Lake Cotton Woolen Manufacturing Co. v. Gilford, 64 N.H. 337, 348. An attempt was made at the trial to find such value of the plaintiffs' real estate in Gilford. Unless testimony was excluded that ought to have been considered, or testimony was received that ought not to have been considered, the finding of value there made, being a finding of fact, must stand.

The record of a judgment as to the value of the plaintiffs' real estate, April 1, 1884, in a prior action between these parties for an abatement of taxes, was received as evidence. The defendants do not object to the competency of this evidence, but they claim that the judgment conclusively established the value of the property for taxation in 1890, 1891, and 1892, and that evidence of an intervening sale of the property was therefore inadmissible. If experience showed that the market value of real estate never changed, there would be ground for this contention; but it is well known that it does change, sometimes to a considerable extent in a brief space of time.

Atlantic St. Lawrence Railroad v. State, 60 N.H. 133, was an appeal from the assessment of taxes upon the company's railroad in this state for the year 1879. The company leased their railroad to the Grand Trunk Railway in 1853 for 999 years, reserving a certain rental. It was held that the rental was evidence of the market value of the road at the date of the lease, although not conclusive. In the opinion it is said (p. 142),- "If the value of the leased road increased from the date of the lease to the present times the less value of 1853 cannot be taken as its present value on which its present share of the public expense is to be computed; and if its value diminished during that period, its greater value in 1853 is not the test of its present share of the common burden. For the purpose of taxation in 1853, it should have been appraised at the highest price it could have been fairly sold for on the first day of April of that year. For the purpose of taxation this year, it should be appraised at the highest price it could have been fairly sold for on the first day of April of this year, and not at the greater or less price for which it could have been sold or leased at some former time. The price at which it was sold or leased at any former time is evidence only so far as its proof of a former value tends to show the price for which it could have been sold on the first day of April, 1879. If on that day it could not have been leased by an owner of the entire title at the price of 1853, it would be as wrong to make that price the test of the value of 1879 as to appraise it now at less than its present value because it was once sold or leased for less than it is now worth." The judgment in the prior action between these parties as to the value of the property in 1881 differs from evidence of a sale or lease of the property at that time only in its weight and binding effect. In the judgment, all uncertainty resulting from considering and weighing conflicting evidence bearing on the question of value is eliminated: the judgment established the value of the property at the time to which it referred. If, instead of a judgment, the evidence had related to a sale or lease, it would have been necessary to find the value at that time from a consideration of the sale or lease, the circumstances surrounding the making of it, and all other evidence relevant to the question of value.

It was proper to consider, in connection with the judgment, other evidence as to the value of the property in 1890 and subsequent years. The evidence of the sale of their stock by the plaintiffs' stockholders to Daniell, July 17, 1889, was properly received. The question of its competency by reason of remoteness was one of fact. Its decision at the trial term is not reviewable here. It is found, as a fact, that the sale was in every respect what the law requires in a sale to give it weight as evidence of market value, with the single qualification that the stock might not have brought as much if the corporation's water rights had been understood to be limited, according to the views taken of them at the trial term. This qualification did not injure the defendants. The sale transferred the equitable ownership, and was practically a sale of all the property and franchises of the corporation. The price received for the stock was, in effect, the price which the property and franchises of the corporation brought, if the corporation was not indebted; and it is not suggested that it was. There was no error in admitting this testimony. Atlantic St. Lawrence Railroad v. State, 60 N.H. 133, 141.

The plaintiffs leased to the P. C. Cheney Company, July 1, 1886, for a term extending to 1995, a mill privilege at East Tilton, and stipulated that "the total flow of water at the said dam of said lessors shall not, by any act of said lessors, be reduced below 250 cubic feet of water for each second of time, except when the same may be shut off for necessary repairs." They made contracts of the same character with other parties, but none that required them to allow a larger quantity of water to flow in the river. The defendants claim that these contracts rendered it impossible for the stockholders to sell the entire beneficial interest in the control of the lake, and that the price obtained for the stock was a price for an encumbered title of the property. It is found that the flow stipulated for in these contracts was no more than a performance of the plaintiffs' duty to equalize the stream by a reasonable use of the lake, and that the stockholders' "sale vested in the purchasers all the control of the lake the plaintiffs ever had." The owners of mill privileges upon the Winnipiseogee and Merrimack rivers have a right to the natural flow of the rivers without unreasonable diminution or alteration. Cowles v. Kidder,24 N.H. 364; Tillotson v. Smith, 32 N.H. 90, 94; Holden v. Lake Co.,53 N.H. 552, 560; Concord Mfg. Co. v. Robertson, 66 N.H. 1, 29. But the natural flow might be controlled to a reasonable extent by arresting the excess in times of high water and releasing it in times of low water, and so equalizing the flow throughout the year. Cochecho Mfg. Co. v. Strafford,51 N.H. 455, 477, 480; Thompson v. Androscoggin Co., 54 N.H. 545, 558. This control of the lake as a reservoir is limited within the bounds of reasonableness, having reference to the rights of riparian owners upon the rivers forming its outlet. It is found that such limitation requires the plaintiffs to release at least 250 cubic feet of water each second, independently of any express contract on the subject, and consequently that the contracts do not increase the duties which the law otherwise puts upon the plaintiffs, nor create an incumbrance upon their title. Such being the fact, there is no ground of objection to the ruling that the price received for the stock was the price received for an unencumbered title to the plaintiffs' property.

There should be judgment for abatements in accordance with the finding at the trial term.

Case discharged.

DOE, C. J., and CLARK, J., did not sit: the others concurred.