
    People ex rel. Delaware, L. & W. R. Co. v. Reed.
    
      (Supreme Court, General Term, Fifth Department.
    
    June, 1892.)
    j. Railroad Companies—Taxation—Liability of Lessee.
    A railroad owned by a domestic corporation, but operated by a corporation organ ized under the laws of another state under a lease for the full term of the lessors' corporate existence, should be assessed to the lessee, which, for such purpose, is a resident of the state.
    2. Same—Valuation of Portion of Road within Town.
    In assessing a portion of a railroad within a town it should be appraised at it? value as a part of the entire system, a proper method being, where the road is leased to put its value at an amount ascertained by capitalizing at 6 per cent, the rental value of such portion, less proper deductions for the cost of equipping the road, etc.
    Appeal from special term, Livingston county.
    
      Certiorari on the relation of the Delaware, Lackawanna & Western Railroad Company against Alexander Reed. From a judgment dissmissing the writ, and from certain interlocutory orders, relator appeals.
    Affirmed.
    Argued before Dwight, P. J„ and Macomber and Lewis, JJ.
    
      Charles J, Bissell, for appellant. J. B. Adams, for respondent.
   Lewis, J.

This is a proceeding by the relator to review an assessment of so much of the railroad known as the “Delaware, Lackawanna & Western Railroad Company” as is situated in the town of York, Livingston county. The assessment sought to be reviewed was for the year 1890, the assessed valuation being $174,960. It was duly referred to a referee to take evidence, and report to the court with his opinion—First, as to the actual value of the real property assessed to the relator in the town of York; and, second, as to whether the relator’s property was assessed at a higher proportionate valuation than the other real and personal property in the town of York, and, if so, whether the relator has sustained injury by reason of such unequal assessment. Upon the report of the referee the issues were brought to trial at a special term of the supreme court in the city of Rochester, and, the court having thereafter duly made and filed its written decision thereon, dated June 29,1891, wherein it was found as facts that the actual value of the real property which was occupied by the relator in town of York in the months of June and July, 1890, was the sum of $624,482, and that such property was not assessed at a higher proportionate valuation than the other real and personal property in the town for that year, it was adjudged that the writ of certiorari be dismissed.

The relator appealed to this court, and alleges as the grounds of error

First, that the assessment directly and personally to the relator was without jurisdiction and the assessment is void. The New York, Lackawanna & Western Railway Company, is a corporation organized under the laws of the' state of New York. It constructed and equipped the railroad in question, which extends from the city of Binghamton to the city of Buffalo, and, when constructed and equipped, the entire road, including the real estate, superstructures, locomotives, rolling stock, franchises, and, in short, everything pertaining to a fully equipped and furnished railroad, was leased by said corporation to the relator by a written lease dated October 2, 1882, for the full term of the corporate existence of the lessor, and during the full term of any and all renewals of the corporate franchise that might at any time thereafter be made. The relator agreed to operate and manage the road during the life of the lease, and pay to the lessor certain rentals therein provided for, and, in addition thereto, the relator agreed to pay and discharge during the life of the lease all taxes and assessments levied or imposed upon the leased property. The relator took possession of the leased property, and it thereupon became a part of its great system of railroads, and at the date of the assessment complained of the relator was in full possession of the entire road, including the portion thereof in the town of York. The Yew York, Lackawanna & Western Railroad was evidently organized for the purpose of constructing and equipping the road, with the expectation and intention, when that was accomplished, of executing the lease mentioned. The relator contends that, as the Yew York, Lackawanna & Western Railroad is a domestic corporation organized under the laws of this state, and the owner of the road, the assessment should have been made against that company, and not against the relator, a corporation organized under the laws of the state of Pennsylvania, and operating the railroad solely by virtue of a lease thereof; and contends that the relator was in no sense a resident either of the town of York or the state of Yew York, and that the assessors had no jurisdiction to assess this property directly to it, and thereby create and charge it with a personal liability for the payment of the tax. If both companies were residents of the town of York at the time the assessment was made, it was proper to assess either; if the owner did not reside in the town, and the occupant did, the assessment should have been to the occupant; if neither of them resided in the town, the property should have been assessed as nonresident lands. Stewart v. Crysler, 100 N. Y. 382, 3 N. E. Rep, 471. The relator contends that the Yew York, Lackawanna & Western Railroad, being the owner of the road in question, was, for the purposes of taxation, a resident of each town and county through pvhicli its road passes; and we are referred to the case of Buffalo & S. L. R. Co. v. Supervisors of Erie Co., 48 N. Y. 93, as an authority holding that doctrine. That rule, however, applies only in eases where the corporation is by its agents occupying and operating the road. As stated by Earl, Commissioner, in 48 N. Y. 101: “Á corporation, for many purposes, lives, moves, and has its being in its agents, and wherever they are in possession of its real estate, carrying on its corporate business, it may be supposed to exist and reside without departing from legal precedents or violating the spirit or letter of the law. ” The Yew York, Lackawanna & Western Railroad Company’s principal place of business was in the year 1890, and still is, in the city of Binghamton, N. Y. It was not at that time operating the road; had no agents in the town of York; and, therefore, under the rule above referred to, was not a resident of that town. The relator was, through its servants and agents, at the time the assessment was made, carrying on its corporate business in that town, and was in the possession of the property assessed. If its being a foreign corporation precludes it from being a resident of the town of York, then the property should have been assessed as nonresident lands. While it is true the relator was incorporated under the laws of the state of Pennsylvania, it was operating the railroad in question, located in this state. While a natural person can reside in but one place at a time, it is, as we have seen, different with a corporation. It may. for some purposes, exist and be a resident in different places at the same time. As stated by Earl, C., in 48 N. Y. supra: “While corporations, in their general aspect, are mere ideal existences, without body or soul, yet they will be considered inhabitants, residents, citizens, when the general spirit and purpose of the law require it.” The relator, to all intents and purposes, so far as the management and control of the property and franchises of the railroad, was a resident, owner, and occupant of the property assessed. It was in the same sense and for the same reasons a resident of the town of York that the Yew York company would have been a resident of that town, had it been then operating the road. When the owner does not reside in the county in which the land assessed is situated, the same mode of assesment is pursued, without regard to whether he be a resident of this or some other state. We think the relator should be held, for the purposes of taxation, to have been a resident of the town of York, and that the assessment was properly made. To hold otherwise would lead to great embarrassments in the collection of taxes for the support of the government. If, under the circumstances, the property of the company in the town of York must be assessed as nonresident property, at would practically result in the authorities being unable to collect the taxes, diving the construction we have to the statute works no injustice to the relator, for, whether the property be assessed to it or to the New York, Lackawanna & Western Railroad, the relator must ultimately pay any and ¡all taxes lawfully assessed upon the property in question.

The second point made by the appellant is that the finding of the court ¡upon the question of the value of the relator’s real property in the town of York was based upon erroneous considerations, and that the finding does not o-epresent the true value of the relator’s real property. The hearing before the referee took a very wide range. The testimony taken was very volumimous. It was derived almost entirely from witnesses called by the relator. After being put into narrative form, and evidently much condensed, it ■covered more than 400 printed pages. With a view of establishing that the assessment was unequal, the relator called witnesses to testify as to the value of a very large proportion of the farms in the town of York. The quality of their soil, the kind and condition of the improvements, were in great detail investigated. Many citizens were called and subjected to searching examinations as to their personal property, including their securities, their household furniture, etc., with a view of showing what proportion of personal 'property in the town had been assessed. The taking of the testimony before the referee extended over a period of 17 months. After taking this large mass of testimony, the referee adopted a very simple and obviously correct method of arriving at the value of the property in question. The property ¿assessed formed a part of a great railroad. To assess the portion of it passing through the town of York, consisting of a narrow strip of land, with its ¡ties, rails, bridges, depots, etc., ignoring the fact that it formed a part and portion, of the entire system of a greal railroad, would have been very absurd. Had the assessments through the entire length of the road been made upon that theory, the assessed valuations of the property would aggregate but a ¡nominal sum, and would result in the road, which, as a whole, is worth many millions of dollars, practically escaping taxation. Inquiries as to the value of the land for farming purposes afford very little, if any, assistance 'in the inquiry. There are many embarrassments and difficulties in applying the usual and familiar rules of assessing property to railroads. Railroad property is of a somewhat anomalous character. The courts have approved an assessing railroad property of resorting to the method of estimating its value by its earning capacity, and the situation of the road in question is «exceedingly favorable for the adoption of this rule. The road is owned by the New York, Lackawanna & Western Railroad Company. It is occupied by the relator, the owner receiving rents for the use of the property. The lease ¡secured to it a permanent rental, without any probability of any decrease in the rent in the future, but a strong probability of an increase. Under such ■conditions, the rentals would seem to furnish a satisfactory criterion for •fixing the values. The referee ascertained from the reports to the board of ¡railroad commissioners the rentals the owner had been receiving for the ¡period of four years next preceding the year 1890, and found that they •amounted, during that period, annually to the sum of $1,470,000, and from the same source learned that for the year ending June 30, 1890, it received -$1,487,333.33. By dividing that sum by the length of the leased road, he found the average rental represented by each mile, which sum he capitalized •at 6 per cent., and, after making proper deductions for the cost of equipping ¡the road, the value of wharfage, cattle, and coal yards, coal trestles, and the •amount Of bonds and mortgages for terminal improvements, he reported •that, in his opinion, the portion of the road in the town of York, was worth $624,482. The special term adopted his conclusions as the most' feasible and satisfactory means of arriving at the value of the property. There was much more testimony taken, bearing, as we think, very remotely upon the questions under investigation. There was sufficient evidence to sustain the findings. If, as contended by the relator, the referee was not required to make special findings of fact, that he did so does not concern the -relator. The very onerous and important duties performed by the referee were for the purpose of aiding the court in deciding the questions before it. The court was not bound to adopt the findings of fact made by the referee. AVe have examined the exceptions to the admission and rejection of evidence argued in the appellant’s brief. Had a jury been the tribunal passing upon the questions, the exceptions might be worthy of some consideration. But, considering the nature of the inquiry, and that the evidence was taken for the information of the trial court, and not finding that any evidence was rejected which was material to the subject under investigation, we find nothing in the exceptions calling for a rehearing of the matter. The judgment and orders appealed from should be affirmed, with costs. All concur.  