Lamprey v. Batchelder , 40 N.H. 522 ( 1860 )

Bellows, J.

This is an action on the case, for an illegal assessment of the plaintiffs lands in North-Hampton, and the action must turn upon the question whether the la of the provincial legislature, passed, in 1742, providing for the taxation of such lands in Hampton, was in force in 1859, when this assessment was made.

At the time this law was passed, the tract of land now North-Iiampton was severed from Hampton and made a new town, and, in the 'act of division, a provision was made for taxing lands to the owners in the town where they lived, if in either of the two, whether th e lands were situate in the same town or not, and enacting that, on which side soever of the dividing line any person shall live, there he and his estate on both sides shall be rated, and further providing, that if a stranger should purchase land in either town, it should be taxed to him in the town where it was situate. The act also further provided that, for convenience in assessing the taxes in this manner, the selectmen of each town shall join in making the province taxes, and that both towns shall join in the choice of representatives until further orders.

Taking all these provisions together, it is quite apparent that the provincial legislature had no purpose to trench so far upon the established rules of taxation as to provide for a permanent taxation of lands in the town where the owner might live, but rather to adapt the provision of the dividing act, so far as it might be, to the convenience of the present land-owners, some of whom, doubtless, owned land in both towns, and probably on each side and adjoining the division line.

In respect to strangers — and by that term may probably be understood those who were not then land-owners in either town — they were not to be included within these peculiar provisions, but to be taxed under the general law for such lands as they might purchase in either town.

"Whether the plaintiff is to be regarded as a stranger, purchasing land in the new town since the division, in the sense of the act, is the question. It may be safely assumed that he did not own the land at the time of the division, but he may, nevertheless, have acquired it by descent and not by purchase, and therefore, strictly speaking, in the sense of the act, not a stranger who purchased since the division. If the plaintiff’s title did not come to him by an unbroken line of descent, from one who was owner at the time the new town was made, we should be inclined to hold that, by a fair construction of the law, his lands should be taxed in North-IIampton, and we are not prepared to say that such unbroken descent would affect the result, if shown to exist.

The anomalous and inconvenient character of the provision, calling for the joint action of the selectmen of both towns, and the fact that it was so great a departure from the established policy of the then provincial legislature, would incline the court to avoid a construction that would extend its operation beyond the temporary purpose which was designed, unless such a construction was imperatively required. But as the case does not set forth such unbroken line of descent, it is not necessary to decide that question at this time.

Taking the language of the whole act into consideration, we are satisfied that the object of this provision was temporary, and intended for the convenience of the existing land-owners, at whose instance the division was effected; and as the plaintiff, in the case befo're us, stands as a stranger within the meaning of the act, there must be

Judgment for the defendants.