Smith v. . the Mayor , 68 N.Y. 552 ( 1877 )

It is difficult to perceive how, upon any theory, the plaintiff can maintain this action. He seeks to have certain assessments and taxes declared illegal and void on the ground that they are a cloud upon his title. Our attention has been called to no case where such an action has been maintained to remove a cloud upon any title except that to real estate, and yet he claims that his pier is not real estate. If it is real estate, it is conceded that the taxes have been legally imposed. If it is not real estate, then there is no precedent in this State for the maintenance of the action. (Ward v. Demey, 16 N.Y., 519.) But there may be some property or rights not real estate, over which a cloud may be cast which a court of equity will remove, and therefore, we will proceed further.

The law provides that all lands in this State, except such as are exempted, shall be liable to taxation; and that the term "land" as used in the chapter as to "property liable to taxation," shall be construed "to include the land itself, including land under water, all buildings and other articles erected upon or affixed to the same, all trees and underwood growing thereon, and all mines, minerals, quarries and fossils in and under the same," and real estate is defined in the same way. (1 R.S., 387, §§ 1 and 2.) Under the definition of land thus given, one may be taxed as owner of the fee of land, and another for the trees, buildings and other structures thereon, and the minerals and quarries therein.

Upon the assumption, therefore, that the fee to the land under water upon which the pier was constructed, was reserved to and remains in the city, yet plaintiff's structure, called a pier, is real estate for the purpose of taxation. It is not a franchise and he is not taxed upon a mere franchise. A franchise is defined to be a special privilege conferred by government on individuals or corporations, and which does not belong to citizens of the country generally by common right (2 Wn. on Real Prop., 267;Bank of Augusta v. Earle, 13 Pet., 519, 595), and it may be an incorporeal hereditament.

Under the laws of our State a mere franchise or incorporeal hereditament of any kind is not taxable, except by special statute. The plaintiff has a franchise to construct and maintain this pier and take wharfage for its use. The pier itself is a structure built under his franchise. It is tangible, bulky property, and in no sense incorporeal. (2 Black. Com., 191.) It is not like a mere right or privilege which has no physical existence. A person may have a franchise to build and maintain a bridge and take toll for its use. The bridge, as a structure, is not a franchise. He may not be taxed on his franchise, but he can be taxed upon the structure or real estate. A railroad company has a franchise to construct and maintain a railroad. Its franchise cannot be taxed, but its road and other structures can be taxed as real estate. The bridge and railroad may not be of any use to their owners without the franchise pertaining or incident to them, and yet they may be taxed, and for the purpose of fixing their value, the uses to which they may be subjected must be considered. (The People v. Barker, 48 N.Y., 70.)

A pier is a large, bulky structure; it may cost many thousand dollars. If it is not real estate, what is it? It is not personal estate. If it is not real estate, it is because it is placed upon land belonging to another. Practically the plaintiff has every benefit from the land upon which the pier is placed which he could have if he owned the fee therein. His right is perpetual to him, his heirs and assigns forever. That such an interest in land is real estate for the purpose of taxation cannot be doubted since the decision of the case of The People v. Cassidy (46 N Y, 46). There, the track of a street railway was placed in a street. All the right the railway company had was the right to lay its track in the street and maintain it there and operate its road thereon. Its track on the street was assessed and taxed as real estate. The ground was there taken, as here, that it was not real estate, but it was held to be taxable as real estate. FOLGER, J., writing the opinion of the court, said: "The statute means, for its purpose, to make two general divisions of property, one, all lands, another, all personal estate; and then, to be more definite, it declares that by land is meant the earth itself and also all buildings and other articles erected upon or affixed to the same. We do not think that when buildings or other articles are erected upon or affixed to the earth, they are not, in the view of the statute, land, unless held and owned in connection with the ownership of a fee in the soil. We are of opinion that the statute means that such an interest in real estate as will protect the erection or affixing thereon and the possession of buildings and fixtures, will bring those buildings and fixtures within the term "lands," and hold them to assessment as the land of whomsoever has that interest in the real estate and owns and possesses the buildings and fixtures."

It matters not that the public have a right also to use this pier as a street. (Taylor v. Atlantic Mutual Ins. Co.,37 N Y, 275.) That does not essentially interfere with or impair its usefulness as a pier.

It is not needful to inquire what rights a purchaser of the pier at a tax sale would acquire. It is believed that the franchise would pass as incident to the pier. But whether that be so or not, as the taxes are personal taxes against the plaintiff as owner of the real estate, the condition and value of the pier as property while he owns it need only be considered.

Some things are said in the case of Boreel v. The City ofNew York (2 Sandford, 552), which are apparently in conflict with the views above expressed. But the only points there decided are, that a right to wharfage could not be taxed and that the purchaser of a bulk-head at a tax sale did not obtain the right of wharfage as part of or incident to his purchase. It is doubted whether the case was properly decided. One who purchases land at a tax sale must take all the easements and incidents attached or pertaining to the land. If he purchases a mill he obtains with his purchase the water and right to flow, and other incidents pertaining to the mill. If he purchases a farm he obtains the easements and incidents connected therewith and pertaining thereto. Plaintiff's right of wharfage can only be exercised upon the pier; and when he has lost his pier he has lost all right and power to collect wharfage. The right of wharfage is incident to the pier and is a compensation for the use thereof. A sale of the pier by the plaintiff, with no mention of the right of wharfage, would carry with it the latter right. Whatever the plaintiff could sell would pass by a legal and valid sale of the pier for a tax. In such case this franchise has not been taxed, but it passed as unalterably attached to the land sold and as incident thereto.

It follows, from these views, that the judgment must be affirmed, with costs.

All concur.

Judgment affirmed.