The New York herald., 1879-03-11
THE Il" ROADS.
Judge Barrett Decides that They Are
Subject to Taxation.
WHAT THE AUTHORITIES SAY
All Superstructures Erected on the Land
Held To Be Realty.


in Supreme Court. Special Term. to the taxation
Of the real estate and personally OF elevated rail-
road companies In this particular he called
upon decide the extent which such taxes may
be legally imposed upon the New York Elevated Rail-
road Company, which company had taken exception
to the tax levied by the Tax Commissioners In its tax
schedule for last year the Commissioners OF Taxes i'm
posed tax on the personal property of $4,000 900
| and upon the real estate tax of S20i,OO0
The railroad company entered its protest against
any such taxation. Finally the tax on per-
| sonal property was reduced to s150,000 but
| the Commissioners refused to make any reduction
on the tax real property. having imposed such
tax valuation the real estate of the company.
given in the report to the State Engineer and Sur
veyor, in which the value was stated to be
! $2,673,G90 IT, The matter came before Judge Bar
rett writ Of certiorari to review the action Of
the Tax Commissioners. There was very lengthy
argument Corporation Counsel Whitney appearing
on behalf Of the Tax Commissioners and Mr.. Dudley
Field for the railroad company. The principal
point raised on behalf Of the company that If
the ground taken by the road is technically real
estate its taxable value is nothing. the founda-
tions below ground and do not interfere
with the streets. 1t claimed that the taxation
in view of the actual square feet of land taken
at the rate of $4,000 city lot. Large stress
was laid the five per cent net profits part of the
franchise which. it claimed, should exempt the
company from any other payment to the city. All
of these points were, of course. strongly combated
by Mr.. Whiting and they are reviewed at length in
the opinion of Judge Barrett given in full below, in
which, as will. be seen he confirms the tax on the
real estate Of the company but vacates that upon the
personal property
JUDGE BHRRETrs OPINION.
With respect to the foundations and superstruc-
turc the is directly within the principle Of the
Railroad Company vs. Cossity. 46 n x, AZ. and tho
People VS.. Bcardscy, So Bart, los. The track of
railway company there held 80 be taxable
"and" under tho statutory definition Of that item.
It matters not that the easement Is unaccompanied
by the fee, that the fee Is vested in the
taxing authority (same cssesl SO far as this ques
ton is concerned there distinction in principle
between elevated and surface railways One is as
much within the statutory phrase all buildings and
other articles erected upon affixed the land
the other. The columns of the elevated railway
'artcles' erected upon and affixed 10 the land; SO
is the roadbed which rests upon the columns The
depot houses and stairways leading and attached
thereto buildings" True they do not rest di-
recty the surface but they are erected thereon
and affixed thereto, IN that particular differing only
in degree from houses built upon spiles or other
made fixture
CONTINUOUS RAILROAD BRIDGE.
But even if such an elevated structure should
| be treated i'll the nature OF bridge-that
is, continuous railroad bridge-it is .still tax.
| Company Patterson. Court OF Appeals Mss.) As
to the foundatiops standing alone they are clearly
walker vs. Sherman 20 wend G55 Bishopvs Bishop.
il n. Y. l23 Snedeker Warning. - n. y, 100.
In tho case last cited statue, which was not even
| fastened to the base which it rested and which
| could have been removed without fracture
treatod, as between mortsagor and mortgagee as
part of the realty 1t is urged, however, that tho
foundations do not rise above the surface, they
not within the statute The only authority to which
have been rcforred in support of this proposition
is The People the Board of ASSESSORS 80 N. Y,
81. 1t was there held that tho mains OF Gas COM
pany under the streets OF the city cannot be
| regarded az real estate within the statute for
purposes Of taxation. But there is plain
| distinction between pipes which arc to remain
| permanently under ground and the open foundation
| OF an above ground structure. In the one case
the article RUNS in through, in the other it rests
upon the earth. The land does not end at the sur
face. Afxing thing to the bottom of m artificial
land as though It had been placed upon the original
surface. And upon what do these, foundations rest
If not upon the land? And to what are they affixed?
Further, they to form part OF the contemplated
structure. The latter will rest primarily upon its
foundation yet in its entirety foundation and ALL it
will clearly be "erectcd upon and affixed" to the
| land 1t would though the part should be
| treated having the same characteristics as the
| whole.
THE FIVE PER CENT NET INCOME PAID THE CITY,
The next consideration is whether the reator has.
by special statute been exempted from taxation upon
it's real estate. Such exemption is claimed under
chapter s55 of the Laws of 1863 The second section
OF that act provides for tho payment by the com.
income for the purpose of being expended in the Inn
| provcmont OF the condition appearance OF the
| streets parts Of streets or avenues or places
through which said railway shall be constructed by
preserving or transpanting shade trees by other
| improvements
sidewalk structures which may tend to render
the general condition and appearance OF the streets
aforesaid satisfactory to the citizens dwelling In or
frequcnting the same. The third section declares
that tho payment OF the five per cent ''sha be- the
legal compensation III full for the occupancy
of the streets by said railway US provided by law,
and shall constitute agreement IN the nature of
compact between the city and constructing company,
iicges and rates OF faro heretofore or hereinafter
| iegaized, which shall not be changed without the
mutual consent of the parties thereto aforesaid"
1 rrt thrr M = III.
Gated in the fourth section, which reads Us follows-
| "The compensation mentioned in the preceding
section shall be considered as covering all claims for
| the removal OF distractions or structures found
upon tho street line OF said railway owned by COM
cent is not bo mingled with the general corporate
funds, is 1t to be expended by the regular officers
subject only to the approval of the Mayor The Ian.
gago OF the act on this head IL as follqYs:To this
end the commissioners aforesaid shall have powerto
expend revenues received from the specified per-
centage in such manner as they shall deem best to
promote the object aforesaid, subject to the official
Comptroller OF said city is hereby directed to keep
said distinct and apart from all other funds.
| aud to pay out OF 1t warrants when signed by the
commissioners and accompanied by vouchers for the
| expenditure indorscd as approved by the Mayor;
missioncrs. when approved by the Governor. shall
also be paid from the same fund In Ike manner"
| PRINCIPLE OF EXEMPTION FRoM TAXATION.
These provisions must be considered In the light
Of the general principle that exemption from taxa
ticn win not be rightly presumed. The intention to
exempt must In every case. be expressed in clear and
was said in The Mayor vs.. The Baltimore aud Ohio
hallway Company, Gill. 2ss that ..The right OF
taxation Is presumed to be surrendered by the
sovereign power and such surrender Is made,
unless It be the result Of express necessary
inference (sce Hilliard Taxation III Gorstons
| Tho Appeal Tax Court How, section III, IA; Del
aware Kilroad tax, IL Wall, 224) Now, In the pres
| cnt instance II will bc observed that the i've per
cent Is to be kept distinct and apart from all other
funds and IL 10 be especially applied to the improve
mcnt of the streets occupied by the railway. to
compensation OF the commissioners and to certain
| also be noted that the Ave per cent is not only
| for the use and occupancy of tho streets,
but for the privilege of charging certain
general These provisions are but apparently In the
interest OF tina city Closely scrutinzcd, their real
character Is evident. They are, the main, the
interest Of the relator At all events their advan-