Bowles v. Clough , 1875 N.H. LEXIS 93 ( 1875 )

Taxes — Real estate of non-residents. Chapter 55 of the General Statutes provides, in broad and unqualified terms, for the assessment and collection of taxes on all real estate of persons not resident in the town; and it has been held that such taxes are a charge upon the land: taxed only, and not a personal charge against the owner. Dewey v. Stratford, 42 N.H. 286; Cocheco Manf. Co. v. Strafford,51 N.H. 471.

Could the plaintiff's land in Lyman be legally taxed in any other way than as non-resident, upon the facts stated in the case? I think not. The defendant says it might be legally taxed to the owner, under sec. 17, ch. 50, Gen. Stats., and that being occupied it could not have been legally taxed as non-resident. Section 17 is as follows: "If no person is in possession or occupation of any building deemed by the selectmen to be tenantable, or of any other real estate improved as pasture, mowing, arable, or otherwise, the same shall be taxed, as non-resident, by such description as it may be readily known by, with the name of the owner, if known." The contention is, that the converse follows, namely, that if any person is in the possession or occupation of such property it shall not be taxed as non-resident. If that be so, what possible meaning can be given to the condition found in section 11 of the same chapter, where it is provided that real and personal property shall be taxed to the person claiming the same, or to the person who is in the possession and actual occupancy thereof, if such person will consent to be taxed for the same? Applying the defendant's construction, the two sections embrace land in the same situation, that is, improved and occupied. What sense in saying in one section it shall be taxed to the person in possession provided, he will consent, if it is said (by inference or implication) that it shall be taxed to such person whether he consent or not in the other? Besides, if the defendant's construction be the true one, and the section in question does forbid the taxing as non-resident of improved land in the possession of the owner when he does not reside in town, why are not improved lands occupied in that way excepted from the broad and sweeping terms of sec. 1, ch. 55, respecting the taxation of real estate of non-residents?

I think no such prohibition is to be found in that section, or anywhere else in the statute, and I have been unable to find anything which authorizes the assessment of the tax upon this land against the plaintiff as a resident, when in fact he was not a resident, and did not consent that it should be so taxed, so as to bring it within the provision of section 11, quoted above. Upon the facts stated, I think the plaintiff is entitled to recover.