The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1878-12-11
THE COURTS.
Are Elevated Railroads Taxable
as Real Estate
CONFLICT OF FEDERAL AND STATE COURTS
Dr. Bradford Convicted of Malpractice
on Vicky Corners.

The Commissioners of Taxes and Assessments in
January last assessed the real estate Of the New York
Elevated Railroad Company at 81 204 500 and its per-
sonal property at $4,000 000 In April the company
asked to have the assessment corrected stating as
the basis Of such application that their capital stock
actually paid in 000 that they had real
estate, and that there surplus earnings The
Commissioners reduced tho personal property liable
to taxation from $l0,000,0O0 to $150.0O0, but re-
fused to make any reduction as to the real
estate. To settle the question an appeal
was made to the court and the motion
came yesterday before Judge Barrett. holding Su-
preme Court Special Term. upon writ of ceriorari
to review the action of the Commissioners of Taxes
aud Assessments. The company has been obliged by
law to pay the city Ave per cent upon its net in
for the of the streets. which ground
Of objection to the assessment in question In its
statement asking correction Of the assessment, the
company added that most of its columns then in use
were upon the curb on line with lamp and awning
posts, and did not interfere with the use of the
curb or street; that the rest of them were so
placed that they did not interpose any serious
Of the Streets that the foundations were below the
surface Of the streets and in no way interfered with
traffic, and that the whole of the company movable
property exclusive of the foundations, columns and
superstructure, is not worth more than $500
The Commissioners thereupon, as stated above, re-
duced the assessment upon personal property TO
S15OOOO but retained the original assessment upon
real estate, which, they say does not exceed the t
value as the company reported the cost in their
port to the state Engineer at s2673 500 H. In the
petition upon which the writ of certiorar granted
the company that the average size of the founda
tons at the bottom on the old portion of
the road the west side is feet square, and the
new portion the west side and on the east side
feet equal to about thirty-fonr City lots s5xioo
making the valuation at the rate of 1854 city
lot. The company claim that the amount assessed is
exravagant, whether assessed upon the surface
or the area below ground of the space occupied by
their structure. and many hundreds Of times above
the value of the property used even 1t were taken
absolutely in fee and aege that the superficial
covered by the bases Of the posts would not exceed
1865 square feet which, at tho valuation assessed,
would be at the rate OF above 81 600 city lot.
Mr.. Dudley Field. who appeared on behalf OF the
company. argued that the payment by, the company
of five cent of it's net income to tho city under
the law of 1867 was legal compensation in full for
the and occupancy Of the streets; that the land
to the city and that the company lessee only of
the city under the contract made for the city by the
Legsiaura ne urged fnrsner taat Inc CITY paia us
paid taxes upon leased property unless it was other
wise stipulated in the contract He also contended
that the foundations and pillars Of the road were not
real estate.
Mr.. Hugh L Cole in reply. on behalf of the city.
argued first that If the Commissioners were right in
treating the foundations and superstructure Of the
Elevated Road real estate the amount of ASSESS
ment was not too high There was no pertinency, he
commended. in the calculations based upon the superb
cial area covered by the foundations 1t not
merely the land itself that subject to taxation.
affixed to it. He supposed however that the
troversy really rested upon the point whether the
Commissioners right in assessing the founda-
tons and superstructure real estate. The Revised
Statutes under which the tax levied defined the
term land to include not only the land itself, but
all buildings and other articles erected upon
or affixed to it, and all mines Gin and under the
same" The railroad did not own the land, and it's
structure in fact continuous bridge with the
uprghts supporting it affixed firmly to the soil
Slch foundations and stperstructure were q fixture
even according to the common law definition and
such would be taxable land. They were real
tate under the definition of the statute and assessabe
to the railroad company for taxes. whether or not
they owned the fee in tho lands in which the founda
tons fixed over which the superstructure
erected. He cited great number OF authorities
in support of his propositions and commended that
there nothing i'll the statutes under which the
railroad constructed to vary the rule. The pay
mcnt Of five per cent for the franchise and did
not release the company from the obligation to pay
taxes its real estate.
Mr.. David Dudley Field, who closed the argument
said that the Commissioners had before at
tempted to tax any such property that they had
tried to tax the surface railroad companies for
their tracks and that the gas companies had been
empt from having their mains taxed He urged that
the allowance of this taxation would be prece
dent and would introduce radical change in the sys
TEN OF taxation which would be wholly in violation
of existing laws.
At the close of the argument Judge Barrett took the
Dapers reseryiup his decision.