
    The People of the State of New York ex rel. Retsof Mining Company, Appellant, v. George E. Priest and Others, Tax Commissioners, Composing the State Board of Tax Commissioners, Respondents.
    
      Special franchise tax — the right to lay pipes in a town highway, granted by the owners of the fee, is not a franchise.
    
    A corporation which lays a line of pipe in a town highway, the fee of which is owned by the abutting owners, with the consent and grant of such abutting owners, but without any express grant from the State or other public body, does not enjoy a special franchise as that term is defined in subdivision 3 of section 2 of the Tax Law (Laws of 1896, chap. 908, as amd. by Laws of 1899, chap. 712.)
    
      The “franchise, right, authprity or permission” mentioned in subdivision 3 of section.2 of 'the Tax Law, providing ‘‘ a franchise, right, authority or permission specified in this subdivision shall for the purpose of taxation be known as a ‘special franchise,’ ” means some special privilege derived from some governmental body dr some political body having authority to grant the property rights sought to be taxed.-
    Smith, J., dissented.
    Appeal by the relator, the Retsof Mining Company,' from an order of the Supreme Court, made at the Albany Special Term and entered ill the office of the clerk -of the county of Albany on- the 21st day of February, 1902, denying its motion to set aside and vacate an assessment of the special franchise tax of the relator for the year 1900, and appointing a referee to take evidence upon the issues raised by the petition, writ and return.
    The relator is owner of a line of pipes in the . town of Livonia, which was placed upon or-under the surface'of the soil with the Consent and grant of the owners of the fee thereof, and this pipe line is how within the bounds of a highway. The question is one of law and was presented to the court below, and is presented here upon the following stipulated facts:
    ' “ Concede that there has been 'no express grant, legislative or municipal, of any right to run a pipe line. The fee of the highway through which the pipe line runs is in the adjoining owners and the public has only the public easements of a highway, and the pipe line was laid in the street by the consent and grant of' the adjacent owners.”
    The Board of Tax Commissioners assessed this as a special franchise at a valuation of $2,500. The relator contends that it was -not assessable as a special franchise as defined by subdivision 3, section 2 of the Tax Law (Laws of 1896, chap. 908, as amd. by Laws of 1899, chap. 112).
    
      William B. Putney and Henry B. Twombly, for the appellant.
    
      John C. Davies, Attorney-General, and louis M. Martin, Deputy Attorney-General, for the respondents.
   Kellogg, J.

The Tax Law referi’ed to declares that “ a franchise, right, authority or permission specified in this subdivision shall for the. purpose of taxation be known as a £ special franchise.’ ” It is this species of property which the Board of Tax Commissioners has the right to assess, and in making its assessment it must include the value of tangible property in any highway, etc., connected with the ££ special franchise.” It is plain that if the franchise does not exist the right to assess does not exist. The ££ franchise ” here does not mean the right to exercise corporate functions, but the right to use the public streets, highways or public places, either as an individual or corporation. The right to so use the public streets, highways or public places is a property right, and it is because such property has value that the right exists to assess it. The “ franchise, right,, authority or permission ” here mentioned must mean some special privilege derived from some governmental body or some political body having authority to grant the property rights sought to be taxed. It is this species of property, intangible in its nature, which the law was enacted to reach. All tangible property, real and personal, was assessed before the passage of this law. The tangible property which by this law is added to the intangible was presumably before assessed, and there was no apparent difficulty' in reaching its value under the general provisions governing local taxation. The purpose of the law I think is obvious. Its purpose was .to reach and assess those rights in streets, highways and public places which once belonged to the public at large or to political divisions of the State and which had been granted for a term or in perpetuity to individuals or corporate bodies, and if this is the obvious purpose of the law it follows that where nothing has been granted there is nothing for the Board of Tax Commissioners to assess.

In the case, before us it is conceded that the relator has no grant from the State or other public body. It has only a grant from the owners of the soil. All its property rights consist in that grant and in no other. It has no other right, authority or permission. This property right and the pipe line therewith connected is assessable locally. It has no intangible property such as this law makes assessable as a “ special franchise.” It does not clearly appear that the relator has interfered with the highway rights of the public. If it has done so it is a trespasser and has acquired no assessable franchise or property right by its unauthorized invasion. It has rio protective grant from the public and hence no property rights to be considered by the Tax Commissioners under this law. The fact .is here conceded that the relator has -no'express, permission from any municipality. This precludes the inference that it has the permission of any one authorized to grant any rights belonging to any body politic, and also any inference that the highway commissioner has given any permission, for he is an officer of the municipality and authorized to grant only a municipal right. A tacit acquiescence on the part of a municipal officer in the obstruction :of a public highway does not create a property right and can never ripen into a right. • Such an unauthorized invasion is not a subject for valuation and assessment. It is not property. The invasion is unlawful. The official duty is not to assess it as a property right, but to put an end to the unauthorized invasion, and this duty is mandatory.

It is unnecessary to discuss the subject as to the rights of the owner of the fee of the highway and to what extent he may enjoy the use and profits of the land within the bounds of the highway so long as he does nothing to obstruct or interfere with any of the rights of the public, for all those reserved rights of the owner of the fee are locally assessable and do not fall under the jurisdiction of the Tax Commissioners. All such reserved rights as' the owner may have conveyed by grant are also locally assessable and none of them can come under the jurisdiction of the Tax Commissioners except through some protective grant touching their use emanating from governmental authority,

This leads to the conclusion that the relator has no special franchise and is not assessable otherwise than locally.

The order of the Special Term denying the motion to set aside and vacate the assessment of the relator herein should be reversed, with ten dollars costs and disbursements to appellant, and the motion granted, with costs.

All concurred, except Smith, J., dissenting.

Order 'denying motion to set aside and vacate the assessment of relator reversed, with ten- dollars costs and disbursements to appellant, and motion granted, with ten dollars costs.  