
    In the Matter of the Petition of the President, Directors and Company of the Albany and Bethlehem Turnpike Road, Relator, for a Writ of Certiorari to the Assessors of the Town of Bethlehem, Respondents, to Review an Assessment.
    
      Too; on real estate of a turnpike company not owning the fee of its road—presumption that it built its road as required by law — the ditching and surfacing of said road held to constitute real property.
    
    When the owner of the fee of the land owns all buildings and other articles and structures, substructures and superstructures erected upon, under or above or affixed to the same, they are included in one assessment. When one person owns the fee of the real property and another person owns the articles and structures erected upon, under or above or affixéd to the same, the fee of the land can be assessed to one person and such articles and structures thereon can be separately assessed as real property to the person owning the same.
    The act incorporating the-Albany and Bethlehem Turnpike Road recited that it was incorporated for the purpose of making a good and sufficient road between certain points. The act provided that the corporation should cause said road to be opened and kept open “ four rods wide and which shall be thirty feet between the ditches on each side thereof twenty-eight feet whereof shall be faced with broken stone or gravel well compacted together of a depth not less than twelve inches; ” that the act should be void if the corporation did not commence operations within two years and complete them within five years; that upon the report of three disinterested freeholders to be appointed by the Governor showing that the road had been completed, the corporation should receive a license from the Governor under the privy seal of the State.
    
      He Id, that in view of the provisions of the act and the fact that since 1809 the corporation had been in sole possession and control of the road, had made all repairs to the same, and had collected toll thereon during that time, it might fairly be assumed that it had complied with the articles of incorporation and had erected and maintained tangible property upon such roadway;
    That, although it did not appear that the corporation owned the fee of the highway, it had an easement in the highway consisting of something more than a franchise;
    That such easement and the tangible property which it maintained on the highway constituted “ real property” upon which the corporation might lawfully be assessed upon the assessment roll of the town in which the highway was located.
    Certiorari issued out of the Supreme Court and attested on the 26th day of December, 1903, directed to William Selkirk and others, as assessors of the town of Bethlehem, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in assessing certain real estate in the town of Bethlehem.
    The President, Directors and Company pf the Albany and Bethlehem Turnpike Road is a turnpike corporation incorporated by and acting under chapter 90 of the Laws of 1804. Said act of incorporation was amended by chapter 77 of the Laws of 1805, chapter 164 of the Laws of 1818, chapter 46 of the Laws of 1830, chapter 41 of the Laws of 1843, chapter .63 of the Laws of 1859, and chapter 427 of the Laws of 1888.
    In the year 1903 said assessors placed upon the assessment roll of said town in the first column thereof, the words, “ Albany and Bethlehem Turnpike Co.,” and in the second column thereof and after said name the words “ From city line to Babcock’s corners, and a branch from Coming’s Hill to gate of Isaac Sander's on River road below Abbey Hotel — 5 miles of highway,” and in the third column thereof and opposite said description the figures “ $20,000.” This writ was issued to review the action of said assessors in making said assessment.
    The relator insists that the assessment should be wholly set aside for the reason that it does not own any real estate in the town of Bethlehem. No question is raised in this court as to the name by which the relator is assessed nor as- to the amount of the assessment,, nor as to there being five miles of highway within said town of Bethlehem maintained by the relator and from travelers upon which it takes toll.
    
      Frederick Townsend, James F. Traeey and James Fenimore Cooper, for the relator.
    
      Ffewton B. Van Berzee, for the respondents.
   Chase, J.:

The relator’s franchise is not subject to assessment, at least by the town assessors, and the respondents did not assume to assess it. The assessment was upon the five miles of highway as real property, and unless the assessment can be sustained as an assessment upon real' property, it must fall.

By the Tax Law (Laws of 1896, chap. 908, § 2, subd. 3, as amd. by Laws of 1899, chap. 712) it is provided: “ The terms 1 land,’ ‘real estate,’ and £ real property ’ as used in this chapter, include the land itself above and under water, all buildings arid other articles and structures, substructures and superstructures, erected upon, under or above, or affixed to the same; all wharves and piers, including the value of the right to collect wharfage, cranage or dockage thereon; all bridges * * * ”

The evidence before us is not sufficient to justify the conclusion that the relator owns the fee of said highway. An assessment upon real property includes as a part of the property assessed something more than the fee of the land. When the owner of the fee of the land owns all buildings and other articles and structures, substructures and superstructures erected upon, under or above or affixed to the same, they are included in the one assessment. When one person owns the fee of the real property and another person owns the articles and structures erected upon, under or above or affixed to the same, the fee of the land can be assessed to one person arid such articles and structures thereon can be separately assessed as real property to the person owning the same.

In a case where a railroad company maintained its track, consisting of stringers, ties and rails laid in a public highway where it had no interest in the land of the highway save a right to use the same for the passage of its teams and vehicles to and fro over its track, but which right was constant and exclusive and for the extent of its chartered existence, the Court of Appeals held that such company had an easement in the land over which such right was en joyed and that such easement was for the purposes of assessment and taxation real property. (People ex rel. Dunkirk & Fredonia R. R. Co. v. Cassity, 46 N. Y. 46.)

The court, referring to the statute then existing, say: ££ We do not think that, when buildings or other articles are erected upon or affixed to the earth, they are not, in the view of the statute, land, unless held and owned in connection with the ownership of a fee in the soil. We are of the opinion that the statute means that such an interest in real estate, as will protect the erection, or affixing thereon, and the possession of buildings and fixtures, will bring those buildings and fixtures within the term £ lands,’ and hold them to assessment as the lands of whomsoever has that interest in the real estate, and-owns and possesses the buildings and fixtures. The defendants- were right then, in considering the track of the relators as land, and liable to assessment as such.”

In an action brought to .set aside an assessment on a certain pier where the owner of the pier did not own the fee of the land upon which it was built, the Court of Appeals in Smith v. Mayor (68 N. Y. 552) say : “Under the laws of our State a mere franchise or incorporeal hereditament of any kind is not taxable, except' by special statute. The plaintiff has a franchise to construct and maintain this pier ,and take wharfage for its use. The pier itself is a structure built under his franchise. It is tangible, bulky property, and in no sense incorporeal. * * * . It is not like a. mere right or privilege which has no physical existence. A person may have a franchise to build and maintain a bridge and take toll for its use. The bridge, as a structure, is not a franchise. He may not be taxed on his franchise,-but he c.an be taxed upon the structure or real estate. A railroad company has a franchise to construct and maintain a railroad. Its franchise cannot be taxed, but its road and other structures can be taxed as real estate. The bridge and railroad may not be of any use to their owners without the franchise pertaining or incident to them, and yet they may be taxed, and for the purpose of fixing their value, the uses to which they may be subjected must be considered.”

The return of the respondents does not give us a very clear view of the relator’s road, nor describe the articles and structures, substructures and superstructures erected upon, under or above or affixed to the same. The act under which the relator was incorporated and the acts amendatory thereof are before us. By the act of incorporation it appears that the relator was incorporated “ for the purpose of making a good and sufficient road from the corporation line of the city of Albany to the Norman’s-kill bridge, including the same, thence running westerly on the Bethlehem road to the house of Joshua Babcock, junior, then from- the Norman’s-kill bridge southerly to a small bridge: south of James Van Rensselaer’s, including the same.” (Laws of 1804, chap. 90, § 1.)

Said act (§ 7) also provided that the relator should cause said road to be opened and kept open “ four rods wide and which shall be thirty feet between the ditches on each side thereof twenty-eight feet whereof shall be faced with broken stone or gravel well compacted together of a depth not less than twelve inches in such a manner as to secure a firm' and as near as the materials will admit an even surface rising to the middle by a gradual arch.”

Said act (§ 20) also provided “ that if the said corporation shall not commence their operations within two years and shall not within five years thereafter complete the same according to the intent and meaning of this act, then and in either case this act shall cease and be void and of no effect.”

The license of the relator from the Governor under his hand and the privy seal of the State provided for by section 8 of the act of incorporation was conditioned upon a report of three disinterested freeholders, to be appointed by the Governor, showing that said road had been completed in a workmanlike manner according to the true intent and meaning of the act.

Since, at least, 1809 the relator has been in the sole possession and control of said roadway within said town and has made all repairs to the same. In view of the provisions of said act, and the fact that the relator commenced taking toll thereon and has continued the same for about a century, it may fairly be assumed that the relator substantially complied with the articles of incorporation and that it has erected and maintained tangible propérty on said roadway. All bridges, culverts, ditches and prepared roadbed constitute articles and structures upon the soil, of which the relator has the exclusive and continued possession and control and every beneficial use and enjoyment as fully as if it were the owner of the fee of the land upon which such property is used. The relator has an easement in said land consisting of something more than a franchise. Such easement and tangible property come within the statutory definition of “real property” for the purposes of the assessment and collection of taxes.

The determination of the assessors should be confirmed.

Determination of the assessors unanimously confirmed, without costs  