
    People of the State of New York ex rel. Eugene Van Rensselaer et al., App’lt, v. William J. Weaver et al., the city of Albany, Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed June, 1886.)
    
    Taxes and assessments—*' Farming lands ” m the city of Albany under Laws 1870, chap. 139, as amended by laws 1877, chap. 402.
    Prior to 1870 the lands in question were situated in that portion of the town of Watervliet Albany Co. which were, by chapter 139 of the Laws-of 1870, annexed to the city of Albany. By said act, as amended by chapter 403 of the Laws of 1877, it is provided that the said lands annexed “shall not be liable for any taxes, assessments and charges heretofore assessed, levied or imposed upon the city of Albany, * * * nor shall the farming lands lying within said district, and used exclusively as such, be assessed at a valuation greater than the assessed valuation of similar farming lands in the town adjoining.*’ The relators herein have owned the lands in question since prior to 1870, and hy all their leases of said land they have required the demised premises “to he used for farming purposes, and for no other use or purpose whatever,” and the land has been so used by the lessee. He has never sold, or attempted to sell, any portion of the property as city lots. The city, hy means of legal proceedings instituted under the provisions of its charter, has acquired title to the land lyingin those portions of certain streets which run through relator’s land. Held, that by no act of the relator’s has the character of the land been changed, and the city did not change it by acquiring title for highway purposes to some portion of it by which a separation of parcels resulted. That the assessors erred in assessing the land in question as city lots.
    Appeal from an order made at the Albany special term, which order affirmed the action of the respondents in assessing the lands of the relators.
    The matter was brought up on certiorari to review the-action of the board of assessors under Laws 1880, chap. 269.
    The lands upon which the assessment was levied was part of the town of Watervliet, which was annexed to the city of Albany by Laws 1810, chap. 139.
    The city had acquired the title to that portion of the land included in certain streets by legal proceedings, and, since the city acquired the title, some of these streets have been opened to and used by the public as streets. No portion of said streets which adjoined relator’s lands have been paved, graded, flagged or sewered. It is thickly and well built up to the relator’s land.
    The annexed district received the general benefits of the city’s arrangements and measures, such as police,. fire-department, etc.
    
      Leonard G. Hun and W. B. Van Rensselaer, for relator; D. Cady Herrick, for resp’ts.
   Parker, J.

This is an appeal from an order of the special term, confirming and approving an assessment of certain real estate belonging to the relators and situate in the city of Albany, as made by the assessors of said city in the year 1885.

Prior to April 6, 1810. the lands in question were situate in that portion of the town of Watervhet, Albany county, which was, by chapter 139 of the Laws of 1810, annexed to the city of Albany.

By said act, as amended by chapter 402 of the Laws of 1811, it is provided that £<the districts of country now comprising parts of the towns of Bethlehem and Watervliet, and mentioned m section 1 of this act, and the inhabitants residing therein, shall not be liable for any taxes, assessments and charges heretofore assessed, levied or imposed upon the city of Albany, nor shall such districts or its inhabitants be liable to assessment or taxation for the reimbursement of any debt heretofore contracted by the city of Albany; nor shall the farming lands lying within said district, and used exclusively as such, be assessed at a valuation greater than the assessed valuation of similar farming lands in the town adjoining. ”

The relators contend that their lands are farming lands, and used exclusively as such and must, therefore, be assessed not upon the basis of their actual value, but at a valuation no greater than the valuation of similar farming lands in the town adjoining. The defendants admit that the property has been assessed by them as city lots, and claim that it must be so regarded and treated by them and the courts. It is not claimed that the assessment is greater than the. actual value of the property, but that the property has not received the benefit and protection which the legislature intended it should receive as one of the conditions of annexation.

The power of the legislature to impose upon the city of Albany, when it applied for this increase of territory, as a condition precedent, that it should not impose upon the property annexed, while its character remained unchanged, any greater burden of taxation than it was compelled to bear in the town, cannot be questioned. Upon such terms as the legislature imposed the city sought to, and did, obtain the territory, including the lands in controversy. With those conditions, however unjust and inequitable they may now appear, it must comply.

The language of the statute is plain and the intent clear. The farming lands embraced in the annexed district, while they remained such and were so used exclusively, should bear no greater burden of taxation than as if they were not included in the city limits. No increased assessment was to be permitted, based upon a prospective value of the lands as lots for building purposes.

To secure an absolute compliance with this provision, the act further fixed the standard of comparison to be made by the assessors. They were not authorized to appraise it, to determine its actual value or to use their individual judgment in determining its value as farming lands, but they were commanded to fix a valuation not “greater than the assessed valuation of similar farming lands in the town adjoining,” i. e., the town of Watervliet. The question then is, were the lands in controversy, at the time of the making of the_ assessment under review, farming lands and used exclusively as such? If they were the relators are entitled to the relief asked for, if not, the assessment must stand.

It is admitted that prior to and including April 6,. 1870, the whole of the land in question had been treated, used and rented as a farm, and for no other purpose. It was rented to one tenant who used the land as a farm, hying in the brick house which then stood and still stands upon the portion of the land which lies north of Livingston avenue.

The number of acres was about nineteen. Beyond dispute or cavil, therefore, the relators, in the year 1870, were entitled to have the premises in question assessed as farming lands, and at a valuation not greater “than the assessed valuation of farming lands in the town adjoining.” The relators were then, as now, the owners of such lands. They had control over them. Had the right to determine whether or not any use should be made of them. If any, what use. If it were determined that the lands should be, and remain farming lands, and be used exclusively as such, there did not exist, outside of the relators, the right or the power to gainsay it.

In 1870, one Leopold Krug was in the possession of the entire premises, and so continued until 1881, since which time he has occupied between eight and nine acres. Since 1883 his lease has required the demised premises “to be used for farming purposes and for no other use or purpose whatever,” and from 1870 to the present he has worked the land and raised and gathered crops, in the same manner and of the same character as is usual among small farmers.

In 1881, between three and four acres were leased to Blackburn, and he is now in possession under a lease containing the same restriction as the lease to Krug, and he has used the land to raise potatoes and oats on and for pasture, and for no other purpose whatever. Ryan went into possession of about two acres of the land in 1881, and now holds under a lease containing the same restriction as the Krug lease.- He has used the land for pasture, and for sowing and planting corn, and for no other purpose.

It appears, therefore, that so far as the use of the land is concerned, there has been no act on the part of the, relators or their lessees to change its character since 1810, when it was confessedly a farm and used for farming purposes exclusively, and the terms of- the lease show a determination on the part of the relators to avoid every possibility of' a change in its character and use. This precaution may have, and doubtless was taken, for the purpose of avoiding an increase in the tax. levy against their property, but it was a privilege which the law afforded, and their perfect right to take advantage of it cannot be questioned.

The relators. have n,ever_ sold or attempted to sell any portion of the property as city lots, neither have they made or caused to be made any maps showing its separation by streets or division into lots. True, the city has acquired title to the land lying in those portions of Second and Third streets and Livingston and New York Central avenues, which run through the relators’ lands, but the title was acquired by means of legal proceedings, instituted under the provisions of its charter, and not by grant or voluntary conveyance from the relators. It is clear, therefore, that by no act of the relators has the character of the lands been changed, and the city did not change it by acquiring title for highway purposes to some portion of it, by which a separation of parcels resulted. Saunders v. Springsteen, 4 Wend., 429; Commonwealth v. Carmalt, 2 Binney, 235.

In Gillette v. City of Hartford (31 Conn., 351) the statute of annexation, construed by the court, provided that, no city tax exceeding a certain rate should be assessed so long as “said land is or shall be used exclusively for farming purposes or is vacant or unoccupied land.” In the statement of facts it appears that streets had been made and laid out through the land, and some building lots sold, and that all of the pieces of land assessed border on streets made or projected. That the land was used by the plaintiff Gillette, a farmer, to raise farm crops until sold as lots, and. the court held that the lands were to be regarded- as “used exclusively for farming purposes,” or as “vacant and unoccupied lands ” within the meaning of the statute.

The assessors erred in assessing the lands in question as city lots. The order of the special.term must, therefore, be reversed, with costs and printing disbursements, and case remitted to special term for reassessment and correction, as provided for by chapter 269 of Laws of 1880, with liberty to take or direct further proof as may be deemed necesary.

Order of reversal to be settled by Parker, J.

Bocees, P. J., and Landon, J., concur.  