#### EX PARTE MAKEPEACE & AL.

Spinning machinery, used in a factory, constitutes a part of the improvements of real estate required to be assessed for taxation under our revenue laws.

Appeal from the'Superior Court of Law of Montgomery County, at Spring Term, 1848, his Honor Judge Bailey presiding.

This was an application to reduce the valuation of a piece of land, assessed for taxation in Montgomery County, for the year 1847. The casé appears to be this: Samuel H. Christian was seised in fee of a tract of land on the Pee Dee river, and in the year 1845, entered into a contract of copartnership with George Makepeace to erect and work thereon a mill or factory for spinning cotton, to be driven by the water or river, on the following terms : Christian was to erect a suitable house, and attach to it the machinery necessary to work the mill, such as a large water wheel, and other wheels, &c.; and Makepeace was to furnish the spinning machinery, and fix it in the house so as to answer the purpose. The co-partnership was to continue ten years under the firm of *92“The Swift Island Manufacturing Company.” A certain sum was to be paid annually by the firm to Christian for the use of the ground and house, and, then, the profits be divided between them ; and at the end of the term, Make-peace was to remove the machinery furnished by him. In 1846, the house was built and the large wheels, and the spinning machinery fixed in it, and the Factory put into operation ; and it so continued until the period for taking the tax list for 1847. The land was then given in by the firm, stating, the Factory to be an improvement thereon; and the Board of Valuation valued the land with improvements thereon at $6000, including therein the value of the machinery for spinning, as well as the. values of the land itself and of the mill house and of the] other wheels and machinery, besides that more particularly called the spinning machinery.

Upon the return of the list to the next County Court, Makepeace and Christian moved the Court to reduce the valuation, upon Jthe ground, that the spinning machinery was not a part of the improvements on the land, and that, thereforeTtoo high a valuation had been put on the ore-mises. GrTEearing the motion, it was established, that the spinning machinery itself was affixed to the floors of the building by iron bolts and screws, and that by removing the screws and bolts, the machinery could be detached from the house and taken away without injury to the said machinery or the house. The Court refused *to*reduce the valuation.

Makepeace and Christian then took up the case by *certiorari*to the Superior Court; and it was there held, that the machinery for spinning was not subject to taxation ; and the order of the County Court was quashed and a *procedendo*awarded to that Court to reduce the valuation of the land and improvements, by deducting therefrom. the value of that part of the machinery. From the *93decision an appeal was allowed to the Solicitor on behalf of the State and County.

*Winston,*for Makepeace.

*Iredell,*for the County.

Ruffin, C. J.

The question is, whether the machinery for the spinning of the cotton, separate from the wheels which set it in motion, is no part of the_ “impxov.ement”-on the land, and, so, exempt from taxation ; or whether the house, tEFmaTiTlyateFwheel and other wheels. .and. the spinning machinery, constituting together the_Fac_-tory, be not, as~a~whbTe, such an improvement on the land as to be liable to assessment, within the meaning of the. revenue laws. The opinion of the Court is, that it is thus liable.

Formerly land was not taxed *ad valorem*in this State, with the exception of town Jots. But since 1814, the land tax has been laid according ‘‘to_its_value, including im. provements thereon.” *Rev. Code, Ch.*872. The term “improvements” had been before applied to town lots as subject to taxation according to their value. *Ired. Rev. * **1784, *C/¿.*1 ; and it must have meant the buildings on them. Under various Acts since 1814, the owners of land gave in their lists, describing the situation and number of tracts and the quantity, and affixing also the value of the land and the improvements. Butin 1836, it was enacted, that the value should not be given in by the owner; but that a board of valuation, constituted of a justice of the peace and two freeholders, should upon oath ascertain the cash value thereof and return it to the County Court, subject to correction there, at the instance of persons aggrieved by too high a valuation. By the first section of the Act, the tax is laid on the land with improvements thereon. Probably different views were 'taken on the point, what constituted “improvements” in *94different parts of the State, to the prejudice of the revenue, so as to give occasion for the Act to provide for the reassessment of land in 1840, ch. 75. That enacts that the board of valuation for 1847, should ascertain on their own view or the oath of witnesses, as accurately as practicable, the cash value of land with improvements, and that they should annex to their return an affidavit, that the valuations of the land with improvements thereon are, in their judgment and belief, the actual value thereof in cash. Although the Legislature has in no one of the Aets / defined what are the improvements on land, which are to be taken into consideration in setting a value upon it, either by the owner or the board of valuation, yet it seems manifest that the term was used in all the Aets with the *I*intent to embrace all such buildings and erections as add to the value of the estate and would pass as a part of it under a sale and conveyance. Hence dwelling houses, barns, granaries, stables and other farm buildings, houses / of business and trades, such as shops, warehouses, tanneries, vats, mills and the like, must certainly come with* [jn the description of improvements on land. With respect to mills, the Court is quite clear in holding, that •whatever is parcel of one of any kind, whether a saw or grist mill, a carding, spinning, or weaving mill, forms a part of that improvement on the land, and for the time being is to be taken into the estimate of its value for the purposes of taxation. The rules respecting the ¡right to fixtures of the character of this machinery, as between landlord and tenant, or between the owners of a particular estate and the remainder men, can have, it is conceived, but little application to the point in this ease. Our en-quiry is, how are these fixtures to be regarded, as to their nature, when the premises and fixtures are in *the*possession and enjoyment of the legal owner *oí*the land itself. If Mr. Christian were the sole and absolute owner of the Factory and occupied it, then, undoubtedly, every part of *95tbe machinery, whether that more especially called the spinning machinery, or the large water wheel or other wheels by which the works are moved, would form a part of the realty. Trespass *quare clausum fregit*would lie for an injury to any part of it, and no one would think of bringing trespass *cle bonis asportatis*in such a case. A constable could *not*enter the mill with a *ji. fa.*and detach the frames and other parts of the spinning apparatus from the house by taking out the bolts and screws which confine them, and sell them as personal chattels. This machinery seems for many purposes of the same character with the skreens, bolting chests, mill stones, and the other apparatus in the grist mill; and precisely of that character for the purposes of this case. It forms parcel of the cotton mill or factory as the others do of the grain mills, and, without some reservation, would pass by a conveyance of the mill; and, consequently, ought to form parts of the mill for taxation. It is of no consequence, that the contract between the parties authorises one of them at a future period to sever the machinery from the house and carry it away. When thus severed, or, perhaps, when the time of severance shall have come it may be regarded as exclusively the property of him who has the right *to*remove it, and consequently would then be reckoned personalty. But at present the land,! with the house on it and the machinery attached to it, is\ occupied by these two persons as the temporary owners of the whole, who are to give in the land with the improvements for taxation; and while they thus occupy it, they ought to give it in precisely as the sole owner in fee would.

The Court is, therefore, of opinion, that the order of the Superior Court was erroneous and must be reversed; and that the original order of the County Court should stand; which must he certified *to*the Superior Court, to the end that a writ of *procedendo*may thence issue to *96the County Court, where the tax books remain, in order that those books may be duly and finally settled in this respect.

Per Curiam. Ordered accordingly.