Parker v. Redfield , 10 Conn. 490 ( 1835 )

Bissell, J.

This is an action for money had and received ; and the question raised upon the case stated, and brought here for our advice, is, whether the dwelling-house of the plaintiff is, by law, subject to taxation.

Two questions have been discussed at the bar : 1. Whether the lands, upon which the house stands, are within the provisions of the act of 1702, and so not liable to be taxed 1 and if they are not so liable, 2. Whether the dwelling-house is also exempted 1

1. It has been contended, that admitting the grant of 1765 to have been within the provisions of the act of 1702, the land is not therefore exempted, inasmuch as that statute was repealed in 1821.

This point has been so recently and so fully considered in the cases of Atwater v. Woodbridge, 6 Conn. Rep. 233. and Osborne v. Humphrey, 7 Conn. Rep. 335. that it ought not to be drawn again into discussion. Were this now an open question, we might well doubt, whether it be in the power of one legislature, by a general law, to tie up the hands of succeeding legislatures ; and whether a statute, exempting a particular species of property from taxation, is in the nature of a contract, of perpetual obligation. But these decisions are imperative upon us ; and we yield to their authority.

Were, then the lands in question, conveyed to charitable or pious uses, within the meaning of the act of 1702 ? We are all of opinion that they were so granted, and are thus within the provisions of that statute.

But the view that is taken of the case, by a majority of the Court, renders it unnecessary to decide that point: — Because, admitting that the lands are exempted, by virtue of that act, a majority of us are of opinion, upon the facts stated in the case, that the dwelling-house is not thus exempted.

This opinion proceeds upon the ground, that, by the terms of the agreement between the Episcopal society and their lessees, the buildings erected upon the land, are not a part of the land ; but that there is an ownership in the buildings, separate and distinct from the ownership in the land.

It is readily conceded, that had the Episcopal society improved the lands granted to them, by erecting buildings thereon, or in any other manner, the improvements so put on, would not, either in their hands, or in the hands of their lessees, have been liable to taxation. They would have constituted a part of the land ; and would, therefore, have been exempted, within the provisions of the statute.

So also, had they leased the lands for a term of 999 years, and buildings had been erected thereon, by their lessees, the case'would have fallen within the principle of Osborne v. Humphrey; and the buildings, as well as the land, would have been exempted ; and for the same reason, viz. that they were a part of the land.

• This was the ground of the decision in that case, so far, at least, as the buildings were concerned. But, it is apprehended, that the case under consideration, differs materially from that; and that the two cases are clearly distinguishable in principle.

Here, by the agreement between the parties, the buildings are not considered as a part of the land, or as belonging to it, The society derive their revenue from the ground rent alone. They permit their lessees to put on what buildings they please; and by the terms of the lease, they have the power of removing them at the end of the term. Thus, an interest in the buildings is created entirely distinct from an interest in the lands. The title to the one remains in the society, while the ownership of the other is vested in their lessees. It is, indeed, said, that the case is not varied, by that clause in the lease, which gives to the tenant the power of removing the buildings at the end of the term; for that he would have had such power, by the mere operation of law.

If by this, nothing more is meant, than that a license to erect buildings implies, in itself, the power of removing them, the position is, perhaps, correct. Prince v. Case, 10 Conn. Rep. 375. And the same result is obtained, viz. that the building in question is personal property, and is to be treated as such, by the express agreement of the parties.

But, if by this, it be intended, that buildings erected by a lessee, on the land of the lessor, without license, are personal property, removeable at the pleasure of the tenant, the position may well be questioned. Elwes v. Maw, 3 East, 38.

The lease before us gives a license to the tenant, to erect whatever buildings he pleases, and also the power of removing them. The buildings erected in pursuance of the license, are treated as personal property, and are placed as completely under the controul of the lessee, as any other personal property which he might put upon the demised premises.

In this view of the case, it is difficult to see why this building, any more than other personal estate of the lessee, should be exempted from taxation. And it is equally difficult to see what contract exists, the obligation of which is impaired, by taxing this property. It is in vain to say, that any contract with the Episcopal society is thus either violated or impaired. The contract between them and the government was, that the land, granted by the conveyance of 1765, should be forever exempted from taxation. And it has been exempted. Does this exemption extend to personal property, placed upon the premises by another; which the society do not own, from which they derive no rent, and over which they have no controul ? Has the plaintiff any ground of complaint ? He derives no title to this building from the Episcopal society. As to that, he is not their lessee. The case finds, that he is the owner, having purchased it of a former owner; and that it has always been subject to taxation.

Unless, therefore, there be some inflexible rule of law, requiring that buildings erected upon the land of another, under whatever circumstances, and whatever may be the stipulations of the parties, shall be considered as a part of the land itself; it is believed, that the taxes in question were well laid; and that judgment must be entered for the defendant.

Is there any such unbending rule 1 This will hardly be contended, when it is recollected, that erections made by the lessee for the benefit of his trade or manufacture, and which enable him to carry it on with more advantage, have, by modern decisions, been considered as personal chattels, removeable at the pleasure of the tenant; and that without any agreement between him and his landlord. Dean v. Allalley, 3 Esp. 11. Penton v. Robart, 2 East, 88. Elwes v. Maw, 3 East, 38.

The case of Osborne v. Humphrey, already cited, has been-pressed upon us, as decisive of the present. It has already been remarked, that that case is believed to be clearly distinguishable from this, in principle. At the same time, it should be observed, that the great and leading question in that case was, whether the lund was exempt from taxation, in View of the acts of 1702 and 1821.

A mere passing remark was made, by the defendant’s counsel, in reference to the buildings ; and the subject is as briefly disposed of, in the reported opinion of the court. It is said, they were not taxable, because they were attached to the land.They were erected, evidently, with a view to their permanent continuance; and there is no intimation of an ownership in them separate and distinct from the ownership in the land. They were, in fact, a part of the land, as much as fences or any other improvements, which might have been put upon it> by the tenant. But such, we have seen, is not the case here. It is believed, that this case is not governed by that; and that' the decision now made, does not conflict with the decision in that case. We would not deny its authority. But it may be remarked, that no rule of public policy requires, that the principles of that, and the other cases on this subject, should be extended.

The cases of Williams v. Pritchard, 4 Term Rep. 2, and Eddington v. Borman, 4 Term Rep. 4. have also been relied on, by the plaintiff’s counsel.

In these cases, the plaintiff’s houses, upon which the assessments were laid, were erected on grounds which were formerly parts of the soil and bed of the river Thames ; and which had been inclosed and embanked, by the proprietors of the adjoining wharves, in pursuance of the stat. 7 Geo. 3. c. 37. by which the lands so enclosed and embanked were declared “ free from all taxes and assessments whatsoever.” In the former case, the assessment was laid on the house occupied by the plaintiff; and it was held, that it was not liable to taxation. The case does not state, that the plaintiff either erected or owned the house : on the contrary, it is clearly inferable from the case, that the house was owned by the owner of the land ; for it is stated, that the plaintiff occupied it as tenant only. This case governed that of Eddington v. Borman, which immediately followed.

Neither of these cases, therefore, has a direct bearing on the question now before us.

From the best consideration we have been enabled to bestow on the case, a majority of the court have come to the conclusion, that the plaintiff’s house, under all the circumstances, is not exempted from taxation. And the superior court is to be advised, that judgment be rendered in favour of the defendant.