Winnipiseogee Lake Cotton and Woolen Mfg. Co. v. Gilford, 64 N.H. 337 (N.H.)

Carpenter, J.

Real estate must be taxed in the town where it is situated. G. L., c. 53, s. 2; c. 54, s. 11. “The words ‘land,’ ‘lands,’ or ‘real estate’ shall include lands, tenements, and hereditaments, and all rights thereto and interests therein.” G. L., c. 1, s. 20. Easements are taxable: if appurtenant, they are in general taxed with and as a part of the land to which they belong. Easements in gross must necessarily be valued and taxed separately from the land out of which they are granted.

Water-power, or rights in a reservoir of water, are an interest in the land upon and by which they are created, and by the express terms of the statute must be taxed in the town where the land of which they are a part is situated. Although they may be so far severed from that land and annexed to land situated in another town as to pass without special mention in a conveyance of the latter, their geographical location is not thereby changed. The title to and occupancy of the land creating w'ater-power or reservoir rights may be in one person, and of the power and rights in another. In such case each must be separately assessed. The plaintiffs own both the reservoir rights, and the dam, gates, land, and flowage out of which they issue. Their water rights have not been severed from their lands in Gilford and annexed to their mills and other real estate situated elsewhere. By a conveyance of the former they would pass, and by a conveyance of the latter they would not pass, without special mention. If the reverse were true, they would be none tbe less real estate situated in Gilford. They were properly valued and taxed with the lands in Gilford. Cocheco Co. v. Strafford, 51 N. H. 455.

In the appraisal of a water-power, as of other property, all the facts and Circumstances affecting its value are competent evidence. The- assessors may consider the original cost of the entire property, the quantity of land flowed ■ and its value for other purposes, the magnitude of the power, its location and the place where it is or may be utilized, the uses to which it is or may be applied, together with the limitations, if any, either of the manner in which or of the purposes for which it may be employed, the income derived from it by way of rents or from its use by the owners, the expense of maintaining and managing it, the cost of equal power derived from other sources (that is, its comparative economy), the effect which the appropriation of the land for the purpose and the use of the power have to increase or to diminish the value of the owner’s other lands, and their like effect upon the property of others, — in short, anything which might justly affect the judgment of a person desiring to purchase in determining what price he would offer. Cocheco Co. v. Strafford, 51 N. H. 455, 476-478; Low v. Railroad, 63 N. H. 558, 562. If a soap factory tends to depreciate

the value of adjacent lands, it may be less valuable than it would be if it enhanced their value. A cotton factory, which increases the value of neighboring real estate, may be worth more than it would be if it had a contrary effect. The entire value of a parcel of land may consist in its capacity to render other lands valuable, as if in a desert a single acre were found whereon artesian wells could be sunlc producing sufficient water to irrigate and make fertile the whole desert. The acre would be of great value because by means of it lands otherwise worthless could be made valuable. It could not be justly appraised without considering its effect upon them; but the increased value of the irrigated lands would not be the measure, or form any part of, its value. A fair appraisal of the acre would not include any part of the increased value of other land; nor would an appraisal of the irrigated lands at their full value include any part of the acre's value. It does not appear that any part of the enhanced value of the plaintiffs’ mills and other estate situated elsewhere was comprised in the valuation of their reservoir rights. The referees committed no error of law in considering that the value of the property is increased because it can be controlled and profitably used by the plaintiffs in Gilford for the benefit of their mills situated elsewhere, and because by its control and use in Gilford the value of their mills and other estate situated elsewhere is increased. I low much its value is augmented by these considerations is a question of fact, in the determination of which by the referees no error appears.

The additional facts which the plaintiffs desire to have reported are not material. The authorities of Massachusetts cannot lawfully tax real estate situated in New Hampshire. If they do tax it, such taxation is immaterial on the question whether it shall be taxed here. The plaintiffs’ reservoir rights are a part of tbeir real estate in Gilford, from which, except by their destruction, they can never, in point of fact, be severed. There may be for certain purposes a constructive severance; but it cannot change their actual" location, or make them any the less a part of the land in Gilford.

It is immaterial where the property benefited by the use of the reservoir rights is situated. The rights are not less a parcel of the Gilford lands, in case their exercise is beneficial to mills in Massachusetts, than they would be if they were used and controlled for the sole benefit of mills in Gilford. It may be that the value of the mills in Massachusetts is increased by reason of the existence of the reservoir rights, and that of the rights by reason of the existence of the mills. If so, and if each property is appraised for taxation at its full value, it does not follow that any portion of either property is included in the valuation of the other. The assumption that the plaintiffs’ reservoir rights are taxed with the Lowell and Lawrence mills to the extent that the value of the mills is increased by reason of the rights, has no foundation. If by excavation on elevated land near a city pure spring-water were

found sufficient to supply, by means of an aqueduct, all tbe inhabitants, tbe effect might be not only to increase largely the value of the tract upon which the water is obtained, but also the value to some extent of every house and lot in the city. A taxation of the city lots and buildings at their full increased value, as the law requires them to be taxed (G. L., c. 56, s. 1), would not be a taxation of any part of the aqueduct company’s rights or land; nor would a taxation of the latter at their full value be a taxation of the city property, although but for the city's proximity they might be substantially worthless.

The value of the plaintiffs’ property is not affected by the fact that the benefited mills in Lowell and Lawrence are owned, not by the plaintiffs’ corporation, but by the stockholders, who in place of money dividends take as their portion of the income the benefits accruing to their respective mills. The value of the aqueduct company’s property would be neither more nor less if all the householders and lot-owners in the city were its stockholders, and instead of dividends in money received water each in proportion to the amount of his stock

If the plaintiffs should sell and convey all their property in Gil-ford, upon condition that the purchaser regulate the flow of water as it is now regulated, the right to the stipulated flow of water would be an interest in land situated in Gilford,, and taxable. If the owner sells his dam and mill-privilege, reserving a right to draw a specified quantity of water, the reserved right is real estate, and taxable. If the owner of a mill and a reservoir water-right in Gilford, worth $21,000, sells all his real estate in Gilford for $10,000, its full value, reserving all water-rights except power sufficient for the use of the Gilford mill, his reserved rights are worth $11,000, and are taxable at that sum in Gilford. An owner of a valuable water-power cannot escape taxation by putting in another the title to the soil, which is generally of little comparative value in the absence of the power, and of no value for other purposes so long as it is used to create the power.

Bingham, J., did not sit: the others concurred.