valued for taxation at 55 to 60 per cent. of its value, held insufficient to show that other property was assessed at less percentage than petitioner's. might aid in construing that which ink and paper were made to say. But mere erroneous recognition of the location of a town's boundary line, in spite of universal but mistaken supposition that the accepted place Report from Supreme Judicial Court, Ken- was the right one, cannot be superior and nebec County, at Law. paramount in dignity and importance to the This, however, does not affect the case in hand one way or the other, since no ambiguity lies concealed on its page. Proceeding by the Shawmut Manufac-authority of the act incorporating the town. turing Company against the Inhabitants of Benton, on an appeal from denial for abatement of taxes. Reported for final judgment by the Law Court. Appeal dismissed. Argued before CORNISH, c. J., and SPEAR, HANSON, DUNN, MORRILL, and DEASY, JJ. Weeks & Weeks, of Fairfield, for appellant. Harvey D. Eaton, of Waterville, for respondent. DUNN, J. An appeal under Revised Statutes, c. 10, §§ 79 and 80, first, to the commissioners of Kennebec county, and from the adverse decision of that board to this court at nisi prius, from the denial by local assessors of a petition for an abatement of taxes assessed in 1920. The justice below reserved the case, both of fact and law, for final judgment by the Law Court. Commissioners, appointed in appropriate judicial proceedings, can ascertain and fix lines in dispute between towns, "and such lines shall be deemed in every court and for every purpose the dividing lines between such towns." R. S. c. 4, § 136; Winthrop v. Readfield, 90 Me. 235, 38 Atl. 93. That was done in 1896 as regards the line for a part of the way between Benton and the town of Fairfield on the opposite side of the river; but the report of the commissioners depends so much upon localities that it is not easy to make it intelligible without reference to a plan which is not in evidence; nor is it necessary to do so, because the line so determined is not involved. [4, 5] If Massachusetts delimited Clinton's bound at the river's bank, it does not necessarily follow that Sebasticook's line was drawn there too. Whether it was or not de corporation, for the Legislature may establish and change the boundaries of towns at will. The descriptive part of the act or charter in question is thus: All of Clinton lying south and east of a dividing line, “beginning on the Kennebec river, in the center line between L 2 and K 1," thence to and up the Sebasticook river, "in the center thereof," to the east line of Clinton, shall be the new town. A punctuation point, a comma inserted after the word "line" and before the The issue was broadened, by mutual consent of the parties, beyond the allegations of the petition and the reasons of the appends upon a construction of the act of inpeals, to include the inquiry of whether all the assessed property was within the territorial limits of the town of Benton. The case being here on report, with technical pleading no longer a matter of concern, this new question has been considered. A study of the evidence fails to sustain the assertion that the assessors mistook the true and legal position of Benton's western boundary line. If in passing there be granted, what it is not necessary at present to decide, and that is that the river boundary of the original town-word "between" would have made it readily ship of Clinton, from which Sebasticook, now called Benton, was set off into a separate town, was laid down by Massachusetts at the bank, and not in the middle of the river, then any dominion over the land between the bank and the river's thread was never placed elsewhere by that commonwealth, except that eventually the title thereto was vested in our own state of Maine. The act incorporating Clinton is numbered 62 in the Massachusetts Laws of 1794-95: that incorporating Sebasticook, Chapter 40, Maine Priv. & Sp. L. 1842; and that changing the name to Benton, chapter 311, Maine Priv. & Sp. L. 1850. possible for the reader's eye to ken, at a single glance, where distinctive meaning came into play: "Beginning on the Kennebec river, in the center line (,) between L 2 and K 1." L 2 and K 1 are inferred to refer to a dividing line between lots delineated on a plan which mention made a part of the description, and a lot-dividing line scarcely could be perceived to have a center. [6, 7] Ordinarily, where a stream of water, above the tide, and therefore not technically navigable, constitutes the boundary line of an incorporated territory, the thread of the stream is the true boundary line. Perkins v. Oxford, 66 Me. 545. There is nothing to take this case out of the general rule. By implication of law, in the absence of negativing words, the side lines of a riparian proprietor, whose estate is bounded by an innavigable river, are extended from the termini on the margin, at right angles from the stream to include one half of the bed of [1-3] Towns are without power to alter boundary lines. They cannot enlarge their extents or taxing jurisdictions by prescription, however extended in time. Eden v. Pineo, 108 Me. 73, 78 Atl. 1126, Ann. Cas. 1913A, 1340. If uncertainty attach to a charter's meaning, contemporaneous and sub (122 A.) carries likewise. Lowell v. Robinson, 16] Me. 357, 33 Am. Dec. 671; Pike v. Munroe, 36 Me. 309, 58 Am. Dec. 751; Wilson v. Harrisburg, 107 Me. 207, 77 Atl. 787. Township boundaries are construed in like manner. Perkins v. Oxford, supra. Not only was Sebasticook's line begun "on" the river, but it was begun "in the center line between L 2 and K 1" I the very center line which marked the easterly boundary of the domain of the adjoining municipality of Fairfield, at which the Legislature was free to begin. The line was run to another river's center and up that river to the old town's easterly exterior. All the territory south and east of that line, and by necessary conclusion west and north of other lines, became Sebasticook. The central line of the Kennebec River was made that town's western limit. To pursue this phase a step further: Thirty-one years afterward Bunker's Island was taken from Sebasticook, or Benton as it had come to be known, and made a part of FairNote, in chapter 390, Priv. & Sp. L. 1873, this language: field. "All that part of the town of Benton lying westerly of (a line) beginning in the west line of Benton in the middle of the Kennebec river," etc. In the knowledge of this evidence any doubt as to the situation of the river boundary of Benton is set at rest. The reverse of the contention that the bank is the confine is conformable to fact. Changed only by the set-off of the island, a thing inconsequential in these proceedings, the line remains as it was established. [8] So thus far, an abatement, if it is to be had, must be posited upon a showing that the petitioner, being liable to assessment, is over rated in the sense of an overestimation; of a rating of its property above its true value, Penobscot, etc., Co. v. Bradley, 99 Me. 263, 59 Atl. 83, of being valued too highly, Webster's Dict.; "Sir, you o'errate my poor kindness," Shak., Cymbeline, 1, IV, 40. The appellant owns a dam across the Kennebec river, between the towns of Benton and Fairfield, together with the bed of the river on which it is erected, and the land at either end against which it abuts. This dam, built of concrete in 1912-13, creates a head, in an average flow of 20 feet; throwing back the water for a distance of 10 miles, and draining a watershed 4,250 square miles in area. The banks of the river are high and steep some of the way, though "in places they are a little shoal," "but usually higher than the ordinary water level," consequently the flooding is comparatively little. The development, when the river is neither appreciably shrunken by droughts nor swollen by freshets, approximates 6,000 horse power. The energy finds application in generating electricity on the western or Fairfield side, none being used in Benton. The Benton assessors set the valuation at $75,000, on "that part of (appellant's) privilege water right and dam in Benton bounded as follows: On the north, east and south by land of the company; * * on the west by the Fairfield town line." [9] The obligation of showing adequate reason for changing the existing order of things rests upon the appellant. It must prove enough at least to make a prima facie case before it can be entitled to have its appeal sustained. There is not, in the record, any evidence showing that the property stands of valuation on the assessment book for more than its actual worth. There is evidence that the cost of building the Benton part was, in round numbers, $50,000, without the worth of the land on which it is built, and the water-covered land behind it, and the bank next it. Witnesses say that, since its building, the structure has appreciated rather than depreciated in value, due to the hardening and strengthening of the cement, the attendant element of indefinite life, and the actual demonstration of the dam's capacity to hold in check the mighty waters of the severest floods ever known to fall upon the basin supplying its reserve of stored force. And there is evidence that increase for labor and materials would make the cost of reproduction double that originally incurred. [10] It appears, too, that heretofore the official valuation was of lesser amount. But, being inadmissible, this must be allowed to flow by, like surplus water through the dam's wasteweir and over its crown. Boards of assessors come into existence annually in the several towns in virtue of a delegation of choosing power by the Legislature. These boards go on in the discharge of duty as each sees it to do amid changing conditions. And valuations, in resemblance to values, are chameleon-like things, varying from time to time, with regard to the objects about them, in the estimation of different officials. Once a board has fixed its valuation, its saying is as a story that is told, a chapter that is closed; if not unsaid after the manner of the statute. [11] Water power, as has been argued, in and of itself, is not taxable. The reason why is that the riparian proprietor has no property in the water which runs by his land. He has, as incident to his ownership, the right of interrupting and using the water, for needed and useful industries and otherwise, while it passes along; and of taking thereby all the profit, utility, and advantage which it may produce, without prejudice to the rights of other owners, above or below, unless he has acquired a superior right. In a word, he has the correlative rights and duties of a usufructuary. [12] Insistence that the words "water right" in the record of the assessment are a substitute expression for "water power" [14] The principle of equality, as courts and economists have observed, is cardinal in taxation. It requires a fair and equitable does not find assent in the mind addressed., spect by them for the Constitutions, else they Difficulty is continually experienced in so would have a government of law run riot. expressing an idea that the language implies no more and no less than just what is intended. Unstudied or colloquial speech, the intention of which the man in the street | distribution so that each taxpayer shall conknows, often suggests meaning in more vividness and force than literal statements could. The effectiveness of such expressions is the aptness of the relations between things which they mark. That which the assessors wrote is interpretable: We are levying, not simply a tax on a dam by a dam site, but, additionally, a tax on the site by the dam, the "privilege water right," unoccupied at the present time, but with potential possibilities, attributable to advantageous position, affecting just and assessable value, in the view of sovereignty's taxing power. So is the law of the ruling cases. Saco, etc., Co. v. Buxton, 98 Me. 295, 56 Atl. 914; Penobscot, etc., Co. v. Bradley, cited before. Plain common sense. tribute in proportion to his property. "Uniformity in taxing implies equality in the burden of taxation, and this equality of burden cannot exist without uniformity in the mode of the assessment, as well as in the rate of taxation." Cummings v. National Bank, 101 U. S. 153, 25 L. Ed. 903, a case holding that equity will interfere to restrain the operation of an unconstitutional exercise of power. Our own court has said that fraudulent action by assessors may be so corrected. Bath v. Whitmore, 79 Me. 182, 186, 9 Atl. 119. [15] There are two ways, it is the consensus of judicially sanctioned view, in which a taxpayer may be wronged in the levying of taxes: He may be assessed on an excessive valuation, or he may be taxed on the basis [13] But the appellant argues further. It of the just value of his property, while, by advances that, not as a result of mere error scheme of the taxing officers, the other propof judgment, but deliberately, a system oferty, in like situation, in the same jurisdicvaluation was adopted, by those whose duty tion is assessed at less than the just value it was to make the assessment, which was thereof. When this is done, the central prindesigned to operate unequally and to violate the fundamental principle of uniformity. The charge is grave. Were it proved it would distinctly spell unworthiness and wrong; it would disclose an intentional ignoring by the local officers of the constitutional provisions which they swore that they would uphold; it would tend to dim that justice which is the end of government. to "Every person elected office under this state, shall, before he enter on the discharge of the duties of his place or office, take and subscribe the following oath or affirmation: 'I do swear, that I will support the Constitution of the United States, and of this State, so long as I shall continue a citizen thereof. So help me God.' 'I do swear, that I will faithfully discharge, to the best of my abilities, the duties incumbent on me as -, according to the Constitution and laws of the state. So help me God.'" Const. of Maine, art. 9, § 1. "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U. S. Const. Amend. 14, § 1. "All taxes upon real sessed by authority of this state, portioned and assessed equally, the just value thereof. Maine, art. 9, § 8. estate, asshall be apaccording to Const. of Constitutional provisions are not selfexecuting; they have to be accomplished through human agency, imperfect as the means may be. But, fallible and finite ciple of equality, both in respect to the subject-matter and the ratio of taxation, is disregarded. If property is assessed excessively, the wrong may be righted easily. Where assessors knowingly and meaningly assess one property at its just value and the other property of the same class at less than its just value, there is a wrong. And if the wrong were not redressed there would be a denial of justice. Cases holding that a taxpayer so circumstanced cannot be relieved may be found quickly. But the other way around is best. Under the topic of assessments at full value when valuations generally are less, an editor in L. R. A. well wrote, in volume 60, at page 368: "It is true in a sense that a taxpayer whose property is assessed for taxation at no more than it is fairly worth suffers no wrong. Yet, if his neighbors are habitually and continually assessed upon their property at less than it is worth, it is plain that he pays more than his proportion of taxes, and that the rule of equality and uniformity of taxation is violated. * Whenever it can be established indisputably by competent and sufficient evidence that a given assessment upon an aggrieved taxpayer's property has been laid upon a distinctly higher valuation than the assessments upon the property of taxpayers in general, * the courts will intervene to reduce or annul the tax to the extent necessary to place the complaining taxpayer upon a plane of equality with others in his class." In the case of Sunday Lake Iron Co. v. Wakefield, 247 U. S. 350, 38 Sup. Ct. 495, 62 L. Ed. 1154, quoted approvingly and stif more-something which in effect amounts to an intentional violation of the essential principle of practical uniformity." Sioux City Bridge Co. v. Dakota County (U. S.) supra. "The purpose of the equal protection clause of the Fourteenth Amendment is to secure [17] As tending to show such premeditated every person within the state's jurisdiction transgressions the appellant offers the testiagainst intentional and arbitrary discrimination, mony of two witnesses. The statement of whether occasioned by express terms of a stat- one of them is so general and indefinite as to ute or by its improper execution through duly be without any convincing weight. The othconstituted agents. And it must be regarded er, the register of deeds in the county, a as settled that intentional systematic under-resident and taxpayer of the town of Benton, valuation by state officials of other taxable some time an assessor there, and more or property in the same class contravenes the constitutional right of one taxed upon the full less frequently buying and selling real estate value of his property." therein, is more specific. From a registry search he selected, not all the transfers of Benton real estate by deed in 1920, but 14 different lots. One of these he himself In Nebraska (105 Neb. 843, 182 N. W. 485, the Sioux City Bridge Case below), the Supreme Court of that State held that, assum-bought; he knew the selling price of another; ing the proof of discrimination, the sole remedy of the complaining taxpayer was "to have the property assessed below its true value raised, rather than to have property assessed at its true value reduced." Said Chief Justice Taft, oppositely, in delivering the opinion of his court, on certiorari to the Nebraska court: "Such a result is to deny the injured taxpayer any remedy at all because it is utterly impossible for him by any judicial proceeding to secure an increase in the assessment of the great mass of underassessed property in the taxing district. This court holds that the right of the taxpayer whose property alone is taxed at 100 per cent. of its true value is to have his assessment reduced to the percentage of that value at which others are taxed even though this is a departure from the requirement of the statute. The conclusion is based on the principle that where it is impossible to secure both the standard of the true value, and the uniformity and equality required by law, the latter requirement is to be preferred as the just and ultimate purpose of the law." "There is no doubt," remarks the Chief Justice earlier, "of the view taken * ✶✶ by the federal courts in the enforcement of the uniformity clauses of state statutes and constitutions and of the equal protection clause of the Fourteenth Amendment." [16] The law is settled. Now for the facts: The advantage, in the beginning, is with the taxing authorities. They are public officers, and what they say, oath-guided, is much set by. Their task is beset by difficulties at best. The system of taxation which it is for them to apply, like every other taxing method yet devised, is incapable of complete and perfect administration. Exact proportion or equality is impossible. There is no iron rule by which the public burden may be apportioned and imposed in equal exactitude. Burdens sometimes are made to rest unevenly, careful purpose otherwise notwithstanding. The proving of a mere error of human judgment, as has been indicated, will not support a claim of overrating; "there must be some It does both apparently above the assessment. Re- "Q. Have you looked over the valuation book "Q. In your opinion what is the percentage used in assessing the property in relation to its value? "A. Between 55 and 60 per cent., that would be my judgment. "The Court: Have you told the assessors about it? "A. I have not told anybody, only as I have testified before the commissioner. I was asked to go over the list on the books and also go over the assessor's books." If it be that he meant his testimony to relate to the 14 lots alone, it is enough to say in dismission that, were the testimony otherwise sufficient, which is far from being suggested, the witness at no times differentiates the valuation of the appellant's property; he leaves it with a valuation comparable with that of all the other real estate, and bearing no more tax than it ought. The remedy of the overvalued property owner is a broad and comprehensive inquiry which is not to be restricted by arbitrary and immutable rules inconsistent with substantial justness. But a petitioner for an abatement must make his case; he must show that his property is overrated; that the valu ation, having reference to just value, is manifestly wrong, or that an unjust discrimination, denying the equal protection of the laws, exists; he must establish indisputably that he is aggrieved. This appellant's case does not so attain. gent and careless operation of the automobile by the defendant it collided with the plaintiff and injured him. The defendant filed a general demurrer, which was overruled, and the case is before this court on defendant's exceptions. The The appeal is dismissed. Costs must fol- defendant contends that a general allegation low. R. S. supra. Such is the order. COUTURE v. GAUTHIER. of negligence is insufficient, and relies upon Aldrich v. Boothby, 114 Me. 318, 96 Atl. 227; McGraw v. Paper Co., 97 Me. 343, 54 Atl. 762; and Boardman v. Creighton, 93 Me. 17, 44 Atl. 121. The last two cases related to defective machinery, and it did not appear certain in either case in what particular the machine was defective, nor was there any sufficient allega (Supreme Judicial Court of Maine. Sept. 7, tion that the injuries alleged to have been re 1923.) Highways≈184(1) O General allegation of negligence in operation of automobile sufficient against general demurrer. ceived were in fact due to the defective part or parts. In the case of Boardman v. Creighton, it did not appear from the facts alleged what, if any, duty the defendant owed to the plaintiff. In an action on the case for negligent operation of an automobile, a general allegation In actions for the negligent driving of that defendant negligently and carelessly oper- teams upon the highway it has never been ated the automobile on and along a certain deemed necessary to specify in what particuhighway, causing it to collide with plaintiff and injure him, is merely defective in form, and not substance, and is sufficient as against a general demurrer. lar the defendant was negligent. Chitty on Pl. vol. II (16th Ed.) p. 574; Oliver's Precedents, pp. 397-400. There may be more reason in actions for Exceptions from Supreme Judicial Court, alleged negligence in the operation of autoOxford County, at law. Action by Joseph Couture against John Gauthier. From an order overruling a general demurrer, defendant excepts. Excep tions overruled. mobiles than in the case of horse-drawn vehicles why the plaintiff should set forth in what respect the defendant was negligent— whether for operating his automobile on the wrong side of the road, or for failing to give warning of his approach, or for operating it at Argued before Cornish, C. J., and Hanson, an excessive speed-in order that the defendPhilbrook, Wilson, and Deasy, JJ. Alton C. Wheeler, of South Paris, and Frank P. Blairs, of Berlin, N. H., for plaintiff. ant may be apprised of what he has to meet, and we think it the better form of pleading so to do; but we deem a lack of certainty in this respect a matter of form, and not of sub Aretas E. Stearns, of Rumford, for defend- stance, and hold that, at least in this class ant. WILSON, J. An action on the case to recover damages alleged to have been caused by the negligent operation of the defendant's automobile. The declaration alleges, and in general terms only, that the defendant negligently and carelessly operated an automobile upon and along a certain highway; that the plaintiff was then and there a lawful traveler thereon and in the exercise of due care on his part; that in consequence of the negli of cases, a general allegation of negligence must be held good upon general demurrer. Lack of certainty and definiteness in this respect must be taken advantage of by special demurrer or by motion to make more definite and certain. 14 Ency. of Pl. & Pr. 334, 340, par. 13; 6 Ency. Pl. & Pr. 272; 20 R. C. L. p. 176, § 145; 59 L. R. A. 209, note; 21 R. C. L. p. 526, § 88; page 600, § 146. The defendant having filed a general demurrer in the case at bar, the entry will be: Exceptions overruled. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |