, 1886-11-23

Under section ., chapter 81, laws of
1856, the land acquired from the United
States for station purposes, having been
obtained after April /, are clearly not
taxable.
The rights of way obtained from in
dividuals are interests in lands which
were in existence and taxable April /. 1t
has been contcnded in argument that
section s. chapter SO, laws of 1884, which
provides that lands transferred before
May |, shall be taxable to the grantee
and afterward to the grantol, makes the
taxes a personal charge upon the grantor
most May |, and that the grantee, after
May |, by implication takes the title free
from a charge for taxes. The court cannot
concede that this position is Il correct one.
Taxes are a charge upon the real estate
and are by statute made u lien thereon.
In the absence Of statutory provision
there can be no question, | think, that it
would be impossible legally to sell one
piece of properly for the payment Of the
taxes upon another. II o., S. 3l5l. 1t
would be. rcpugnant to the broad
principles Of law. The state can
only make a reasonable charge upon
property. 1t cannot absorb the property
in taxes. 1t is not only a fair presump-
ton, therefore, but a conclusive presump-
ton, that the value of the property is
greater than the taxes assessed against it.
This being the case. the state is secured
all the principles of equity that the state
could, without some special provision Of
law, extend its lien so as to interfere with
rights of other persons in other property.
| repeat, the taxes are Il lien upon the
real estate, and such lien is not subject to
defend by an alienation of the title. \
purchase of property against which X
are charged takes the same subject to the
lien of those taxes, and the only force the
court can give such statute is to construe
it as creating a contract liability between
the grantee and grantor, where the parties
have made no express provision in the
contract upon the subject. Now, the fee of
these lands obtained from individuals is
subject to taxation, and there is no show
ing how such property was assessed
whether it was assessed against the indi-
viduals-whcther the different interests
were chopped out and taxed separately,
OF as in whole in the fee, or whether they
are assessed in both ways. But the fact
remains, it the taxes were not paid upon
the land it is subject to tax rate, and this
court will not e%njoin.
1t becomes necessary, in order to answer
the third, fourth and fifth questions salts
factorily, to briefly review the statutory
provisions governing taxation. Section
"a, chapter 100, laws of 1876, provides
that the assessor shall list and assess all
property, real and personal, in his county
on or before the third Monday in June.
Section Is. chapter 100, laws of 1876,
as amended by section &, chapter 81. laws
of 1856, provides that on the fourth Mon
day in June the county commissioners
shall sit as Il board of equalization to raise
S mJ 1u"
erty which may have been omitted by
him. In this case the assessor failed to
h. -I:.,;n ~ .t-1N-,|e".r
at,amn,o1 - H. H. -,
III. DIT .L;....;I Ill
IL -
r e.
Tom;nm.,a.n,a4 $500 Laa,.c ,.r..
14Io-o 80 .~~s:I,
..Tbo, tho oEoors ofanr roIuor oornor
alton within the TERRITORY shall return To
the auditor OF the territory an inventory
OF the property OF the railroad IN the ter
ino'9 sIon 's tls"e u way Sule's'luue.
shah he reviewed. bv rho terr;tor;al hoard
of equalization
The question in the mind of the court
is, whether the hight of way owned by
plaintiff is such property as section / i'm
plies. In the opinion q. the court it is
not. Such section manifcstly could not
be held to apply to anything but Il com
plcted railroad. Other persons may W
rights of way besides railroad companies.
and it would be an anomaly to say that a
principle of law is to be governed by the
question of fact as to who is the owner of
a particular piece Of property. The c