Providence Gas Co. v. Isaac Thurber , 2 R.I. 15 ( 1851 )

The Board of Aldermen in August, 1848, voted: "That consent be given to the laying of the pipes of said company, they in all cases complying with the provisions of "An ordinance in relation to streets and highways," provided, that nothing in this consent be construed to prevent the city from building culverts or otherwise improving any highway, but in all cases when said pipes are in the way of constructing any culverts or other improvement, they shall be removed by the Gas Company."

By the 10th section of the charter, the corporation is made subject to the provisions of "An act in relation to Manufacturing Corporations," passed at the June session of the General Assembly, A.D. 1847. The opinion of the court was delivered by It is agreed that the defendants, as assessors of taxes for the city of Providence, assessed the plaintiffs for their gas pipes, laid in the streets of the city. The ground upon which the assessment has been made is, that these pipes are fixtures, and, therefore, real estate in the sense of the act regulating the assessing and collecting of taxes. The sixth section of that act provides as follows: "The assessors of taxes in the several towns, in assessing taxes for real estate, may assess the same either upon the owners of the real estate, or upon the person who hold or occupy the same."

If the pipes in question are real estate, the assessment has been rightly made. If on the other hand they are personal estate, it is conceded by the counsel for the defendants that the assessment was illegal, and the plaintiffs entitled to judgment.

The only question in the case, then, is whether these pipes are fixtures.

In Farrar v. Stackpole, 6 Greenleaf, 157, it was held that where machinery was essential to the purposes for which a building is employed, it must be considered as a fixture, although only attached to other machinery and not to the premises themselves, and capable of being removed without immediate or physical injury of any sort.

In Voorhies v. Freeman, and Pyle v. Pennock, 2 Watts Sergeant, 115, 390, the Supreme Court of Pennsylvania adopted the same rule.

The Supreme Court in Massachusetts, in Gale v. Ward, 14 Massachusetts, 352, decided, that the annexation of the fixtures must be such as to render removal impossible without physical injury to the freehold.

In Smith v. Thompson, 9 Conn. 67, the Supreme Court of Connecticut held, that a simple annexation to the freehold was not sufficient; that the annexation must be such that an injury would result from the mere act of removal independently of the subsequent want of the chattel removed.

In Walker v. Sherman, 20 Wendell, 638, the Supreme Court of New York held annexation to be necessary, although the chattel may be adapted to the uses for which the freehold was employed.

There is some conflict in the decisions of courts and in the opinions of jurists upon this subject.

We think the true rule is, that a personal chattel does not become a fixture so as to be a part of the real estate, unless it be so affixed to the freehold as to be incapable of severance from it without violence and injury to the freehold; and, if it be so annexed, it is a fixture, whether the annexation be for use, for ornament or from mere caprice.

In the present case, the pipes are sunk in the soil of the streets, to the depth of several feet under the surface, and cannot be removed without digging up the earth, and, if the Gas Co. owned the land in which the pipes were laid, we should have no doubt they would be fixtures.

But being laid in the public streets, by consent of the Board of Aldermen, under power granted to the corporation by the second section of their charter, the question is whether such annexation gives them the character of fixtures.

The charter of the corporation is liable to be repealed by an act of the General Assembly, whenever that body shall think proper to pass such an act.

This arises from the tenth section of the charter, which by this section is made subject to the provisions of "an act in relation to Manufacturing Corporations," passed at the June session, 1847.

On the part of the plaintiffs, it is contended that the power was a mere license, revocable at the will of the General Assembly, and the pipes, being laid under this license, cannot thereby become fixtures, and the case was likened to a class of cases, in which it has been held that if A erect a building on the land of B by parole license from B, such building is a personal chattel. Ashmun et al. v. Williams, 8 Pick. 402;Marcey v. Darling, 8 Pick. 283: Aldrich v. Parsons Latham, 6 N.H. Rep. 555.

If these pipes had been laid in the land of an individual by parole license, they would not become fixtures thereby. But if the owner had granted by deed the right in fee to lay the pipes through his land, they would be fixtures, because the annexation would be under legal title.

So if A built his house in B's land, under a grant by deed of a right in fee so to do, the house would become real estate.

Is the grant of power contained in the charter when executed, of no more effect than the parole license of an individual, revocable at his will? Are the corporation to be considered as tenants of their charter and of all the rights and property they hold under it, at the will of the General Assembly? Nearly all the charters which have been granted in Rhode Island for many years past are subject to repeal, especially Banking and Manufacturing corporations. A deed of land to such corporation and their successors conveys a fee, just as much as if they were not subject to repeal. And so corporate rights and franchises generally, under a repealable charter, are the same until the charter is repealed, as if not subject to repeal, and such is the case with the rights and franchises of the plaintiffs. It was further objected by the plaintiffs, that the grant was void because no compensation was provided for the owners of the land; but however valid this objection might be if made by the owners of the land, we do not think it competent for the plaintiffs to urge it, they being the grantees of the power and having exercised it under the grant. So far as the present question is concerned, we consider the case the same as if compensation had been provided.

What then is the nature of the right which the plaintiffs take under their charter? We think when exercised it is an easement — an incorporeal hereditament, like the right of a railroad company to build an occupy their road, or a canal company their canal, under the provisions in their charter which grant the power to take the land, upon rendering compensation to the owners.

In Binney's case, (2 Bland's Ch. Rep. 145,) the Chancellor held, that the whole estate of the Chesapeake and Ohio Canal Company, at least so far as it consisted of the canal itself, and its necessary buildings and the fixtures attached to the same, must according to the common law be regarded as realty.

In the case of the Boston Water Power Company v The Cityof Boston, 9 Met. 202, the grant to the Water Power Company was of a right to use a portion of the public land covered with navigable water for the use of their mills, in other words, a perpetual easement for the use of their mills. This easement was held to be taxable as real estate.

The counsel for the Water Power Co. did not deny that the easement was real estate, but claimed to be exempt from the tax upon other grounds.

In Drybutter v. Bartholomew, 2 Piere Williams, 127, it was held, that the wife could not be barred of a share in NewRiver water, of which the husband was seized in right of the wife, without a fine.

In Buckeridge v. Ingram, 2 Vesey, Jr. 652, it was held that shares in the navigation of the river Avon, under the statute 10th Ann, were real estate and subject to dower. The Master of the Rolls, in giving his opinion, said, the act of Parliament could not be construed to have taken out of the proprietors and given to this corporation the soil, but it gave them a right in and over the soil and certain real rights arising in and out of the soil.

To the same effect is the opinion of Lord Coke. He says, Every hereditament, which in any degree arises out of land, affects the same or is exercisable within the same, has all the properties that belong to real estate. Co, Lit. 19.

In the case of the Queen v. Cambridge Gas Co. 35 Eng. Com. Law. Rep. 333, the court decided that the company were ratable, as occupiers of the land, in the different parishes, by their apparatus, pipes, c., under the statute of 43 Eliz. ch. 2.

The same rule was applied to a Railway Company in the case of the Queen v. London, Brighton and South Coast Railway Co. 3 English Reports, 329.

The statute of Elizabeth subjects every occupier of lands, houses, c., to be rated, and the Gas Co. by their pipes, apparatus, c., and the Railway Co. by their road, were considered as occupiers of the land in which the pipes were laid and on which the road was built.

The statute of Rhode Island bears some resemblance in this respect to the act of Elizabeth. It subjects the owners of the real estate, or the persons who hold or occupy the same.

But the tax has not been assessed on the plaintiffs as occupants of the land by their pipes, c., but upon their pipes as real estate. And these pipes, being annexed to the freehold, and the Gas Co. having an easement in fee, or right so to annex them and to use them, we think they are fixtures, and rightfully assessed as real estate.

The case of Chelsea Waterworks Co. v. Bowley, reported in the Law Times for August, 1851, is relied upon by the counsel for the plaintiffs. That case arose under the land tax act, 38 Geo. 3, ch. 5. The words of this act are, "bodies corporate having or holding any land or hereditament." The 17th section of the act authorizes the tenant who has paid the tax, to deduct it out of the rent. Lord Campbell, in giving the opinion of the court, inferred from this provision, that no other lands and tenements were intended to be assessed by the act, than such as might be let by landlord to tenant. This provision, he thought, entirely inapplicable to the case at bar, and the decision mainly turns upon this point. He says the company are not the owners of the land where the pipes lie, nor are they tenants of the land, and there is no rent from which they could deduct the amount of the assessment, when they had paid it. He considered the right of the company, when exercised, in the nature of an easement, and not in the nature of the possession or occupation of land or hereditaments.

And yet in the cases which we have cited under the statute, the Gas Company and the Railway Company had been held liable under that statute to assessment as occupants of the land.

However that may be, our statute contains no provision like the 17th section of the act of Geo. III, but, in the important particular already adverted to, does bear a strong resemblance to the 43 Elizabeth. It subjects real estate and makes the owner, tenant or occupant liable for the tax.

Judgment for the defendants.