CHAPTER 160 RAILROADS Taxation of Railroad Property SECTION 87. Land, outside the location of the railroad five rods in width, taken or purchased for railroad, depot or station purposes shall not be exempt from taxation. BEFORE any statute specifically regulated the taxation of railroad property, it was held that the location of a railroad, five rods in width, which it was authorized to acquire by eminent domain, was exempt from taxation,' as property devoted to the public use; but that property outside its location which a railroad company had lawfully acquired for car-houses and other buildings to be used exclusively for the purposes of the railroad was taxable. The statute recited above, first enacted in 1853, appears to be merely declaratory of the law as it previously existed, and although it does not specifically provide that the location of a railroad five rods in width shall be exempt from taxation, the inference is so plain that it has never been questioned. Although only an easement is taken for railroad purposes, the fee in a railroad location is not taxable to the owner." 'Worcester v. Western Railroad Corporation, 4 Met. 564 (1842). See supra, page 217. Boston & Maine Railroad v. Cambridge, 8 Cush. 237 (1851). In Charlestown v. Middlesex County Commissioners, 1 Allen 199 (1861), it was held that when a railroad was authorized by statute to file a new location, the new location was exempt. In Norwich & Worcester R. R Co. v. Worcester County Commissioners, 151 Mass. 69 (1890), it was held that when a railroad company had purchased a single parcel "for station purposes, and for tracks and yard room, to be used in connection therewith," the whole was taxable. Lancy v. Boston, 186 Mass. 128 (1904). 5 CHAPTER 161 STREET RAILWAYS Assessments on Street Railway Companies for Widening or Altering Public Ways SECTION 78. If application is made for a location in a public way where no street railway tracks are located, and such way is G. L. c. 164] widened under chapter eighty or eighty-two by an order declaring the widening to be necessary for public convenience for the purpose of granting such location of street railway tracks therein, a proportionate share of the expense of such widening may be assessed upon a company accepting a location in the way so widened; but the amount of such assessment, in addition to the amounts assessed on real estate, shall not exceed one half of the total cost of such widening. SECTION 79. If a public way where the tracks of a company have been located for a period of five years is altered, or if the grade thereof is changed under chapter eighty or eighty-two, the company shall pay such proportionate share of the expense thereof, including therein the necessary cost of changing its railway to conform to such alteration or change of grade, as may be assessed upon it, provided that, if betterments are assessed, no such assessment on the company shall exceed the aggregate amount of all the betterments assessed upon real estate, and that in no case shall such assessment exceed one quarter of the total cost of such alteration or change of grade. SECTION 80. The provisions of chapter eighty relative to the assessment of betterments on real estate, so far as applicable, shall apply to assessments made under the two preceding sections. CHAPTER 164 MANUFACTURE AND SALE OF GAS AND Assessment of Cost of Laying Pipes and Wires SECTION 61. A town acquiring a plant may provide by ordinance or by-law for the equitable assessment upon the owner or occupant of any premises of the cost, or any part thereof, of laying and maintaining pipes, conduits, conductors or other appliances thereon. Payment of such assessments shall not be compulsory, but it shall be a condition precedent to the supplying of gas or electricity to the occupants of such premises, and may be required before providing appliances therefor. [G. L. c. 175, c. 184 CHAPTER 175 INSURANCE Liability of Insurance Companies to Taxation SECTION 19. Every company shall be liable to taxation by any general law taxing insurance companies, and it shall by its proper officers make to the commissioner of corporations and taxation the returns and statements of its business and affairs required by law for the assessment of such taxes, and thereupon its officers and agents may be examined on oath by the officer to whom such returns are to be made. CHAPTER 184 GENERAL PROVISIONS RELATIVE TO REAL PROPERTY Covenants against Encumbrances SECTION 22. Whoever conveys real property by a deed or mortgage which contains a covenant that it is free from all encumbrances shall, if it appears by a public record that an actual or apparent encumbrance, known or unknown to him, exists thereon, be liable in an action of contract to the grantee, his heirs, executors, administrators, successors or assigns, for all damages sustained in removing the same. THE foregoing statute was first enacted in 1855. Its effect was two-fold. (1) It created the right to sue for removing an encumbrance which appeared of record to be valid although for some reason not apparent on the record it was invalid. (2) It made the right to sue for removing an encumbrance appearing of record a right that ran with the land. Recovery could not be had under the statute however, even for nominal damages, unless money had been actually paid to remove the encumbrance, and it did not apply to encumbrances which were neither real nor apparent, so that a purchaser could not recover the expense incurred for obtaining releases from the holder of a tax title to 1 G. L. c. 184, § 22] the property which was void on its face. It was held in 1885 that the statute had no application to encumbrances appearing of record in any other place than the registry of deeds and consequently did not include tax liens unless they had been enforced by sale. In the Revised Laws the wording was changed from "appears of record" to " appears by a public record" upon the recommendation of the commissioners who prepared the revision, for the express purpose of including tax liens, and there can be no doubt that the statute now applies to liens for unpaid taxes.3 The lien for a tax goes into effect and becomes an encumbrance upon the first moment of April first in each year, although it is not actually assessed until later, and if a deed containing a covenant against encumbrances is given on or after April first and contains no exception in favor of taxes of the current year, the vendor is liable on the covenant, although the tax had not been actually assessed at the time of conveyance; but the purchaser can recover only nominal damages if his possession has not been disturbed and he has not paid the tax at the time of the trial. If he has paid the tax he is entitled to recover the full amount of it, without apportionment and with such other necessary expenses as he has been put to in removing the encumbrance. If the vendee has given a note secured by mortgage of the property sold as part payment he may recoup what he paid to relieve the land from the encumbrance in an action by the vendor on the note, or the amount so paid by him should be deducted by the court in determining how much is due on the mortgage in a writ of entry to foreclose.8 5 Of course if the taxes of the previous years have not been paid, even if not assessed to the vendor, and the lien has not 1 Tibbets v. Leeson, 148 Mass. 102 (1888). 2 Carter v. Peak, 138 Mass. 439 (1885). The valuation and assessment lists of the assessors are public records. Commonwealth v. Segee, 218 Mass. 501 (1914). Cochran v. Guild, 106 Mass. 29 (1870); Hill v. Bacon, 110 Mass. 387 (1872); Davis v. Bean, 114 Mass. 358 (1874. In Hill v. Bacon, supra, the conveyance was made on the day the lien went into effect. Bradshaw v. Crosby, 151 Mass. 237 (1890). See also Tibbets v. Leeson, 148 Mass. 102 (1888). 6 * Coburn v. Litchfield, 132 Mass. 449 (1882); Bradshaw v. Crosby, 151 Mass. 237 (1890); Richmond v. Ames, 164 Mass. 467, 475 (1895); Smith v. Abington Savings Bank, 171 Mass. 178 (1898). 'Davis v. Bean, 114 Mass. 358 (1874). "Davis v. Bean, 114 Mass. 360 (1874). [G. L. c 184, § 22 expired by the lapse of two years from the first day of October in the year for which they are assessed, and a fortiori if the land has been sold for non-payment of such taxes, the covenant against encumbrances is broken. It is incumbent upon the purchaser in an action for breach of the covenant to show that there was a real encumbrance, and if it appears that a tax had been improperly assessed upon the property, or that the lien had been lost by invalid proceedings for its enforcement there is no encumbrance and consequently no liability.10 A mere error in the assessment which though it invalidates the tax may be corrected by re-assessment is a defense to an action on a covenant against encumbrances, for there is no lien on the land if there is an alienation before re-assessment."1 When, notwithstanding a covenant against encumbrances, there is an oral agreement that the purchaser pay the tax for the current year, such an agreement is binding and may be enforced against the purchaser; 12 but an agreement to pay taxes applies only to taxes legally assessed.13 45 The collector, if he sees fit, may maintain an action at law against the person assessed to recover a tax on real estate, although the person assessed has disposed of the property," but if under such circumstances the purchaser has agreed to pay the tax, the vendor by equitable proceedings may be subrogated to the rights of the collector against the land and may thus reimburse himself for the money he has wrongfully been compelled to pay. One who has sold land without covenant against encumbrances is not bound to reimburse the purchaser for any part of the taxes which the latter is obliged to pay to save the land from sale.16 When there is no covenant against encumbrances in a conveyance of land and no agreement or understanding between the parties in regard to the payment of the current tax, the collector may thus impose the ultimate liability to the tax upon either of the parties that he may for any reason 'Charland v. Home for Aged Women, 204 Mass. 563 (1910). 10 Tibbets v. Leeson, 148 Mass. 102 (1888). "G. L. c. 59, §77, supra, page 306. 12 Preble v. Baldwin, 6 Cush. 549 (1850). 13 Massachusetts General Hospital v. Boston, 212 Mass. 20 (1912). "Richardson v. Boston, 148 Mass. 508 (1889); Webber Lumber Co. v. Shaw, 189 Mass. 366 (1905). 15 Webber Lumber Co. v. Shaw, 189 Mass. 366 (1905). 16 Swan v. Emerson, 129 Mass. 289 (1880). |