I dissent. It is admittedly true: That the plaintiff, a private corporation, is the beneficial owner of the entire Edison Building; that the portion of the building leased to the Edison Company on a 15-year lease from 1918 to 1933, constitutes but 43.27 per cent of the whole building; that for three tax years (1927, 1928 and 1929) the holder of the legal title returned the entire building to the assessor for assessment to itself as the owner; that for the year 1930 no such return was made, and the assessor assessed the building to the private owner as theretofore; that for the year 1927 the utility company made no mention of the property in its return of operative property to the state board of equalization; that for the years 1928, 1929 and 1930 the only mention of the property in the return to the state board was included in an item designated "General *Page 667 Offices (leased property)", following a list of other property classed as operative and particularly described by lot and block number, and that the reason the assessor did not notify the state board of equalization that he regarded the Edison Building as nonoperative or as partially operative and partially nonoperative was because he understood and believed that the Edison Company had not claimed and did not intend to claim that said leased property was operative property.
That the property occupied as leased premises was subject to assessment cannot be questioned. It was assessable to the private owner unless removed from the local tax-roll as operative property in the manner provided by law. Whether it should be so removed depended upon a question of fact. That fact is ascertained in two ways: First, by the report of the utility company to the state board of equalization without objection by the local assessor and, secondly, by the state board of equalization upon objections by the assessor. If the property is not claimed by the utility company as operative in its report to the board it goes on the local roll as a matter of course and is taxed accordingly. In the case of a dispute, and there is none unless the utility company claims it as operative, the controversy is settled in the first instance by the state board, subject thereafter to review by the courts. (Great Western PowerCo. v. City of Oakland, 189 Cal. 649, 655 [209 P. 553].)
The procedure for the determination of whether property is operative or nonoperative is laid down in sections 3665c and 3666 of the Political Code, and the proceeding is in the nature of a proceeding in rem. As stated, if the property is not included as operative by the utility company it is not taxed by the substituted method. This was unquestionably the case as to the 1927 tax. But it is contended that the lessor-owner is not subject to the laws providing how public utility property shall be classified for the purposes of taxation. But the property was leased to the utility company subject to those laws and the lessor-owner is subject to the local tax unless the property is classed as operative in accordance therewith, just as in such a case the utility company would be locally taxed therefor. It cannot be said that the owner-lessor is without means of protection. In the first instance it is incumbent on him to see that his property is *Page 668 classed by the lessee as operative, if it be such. In the event of a refusal by the lessee to do so, the law would undoubtedly afford a remedy either by compelling its inclusion or in damages for an unwarranted refusal. With respect to the tax years 1928, 1929 and 1930, the report of the utility company to the state board was plainly insufficient to classify these particular leased premises as operative property. As to all other property, real and personal, claimed in those years to be operative, a description thereof, by lot and block or location, with the assessed valuation, was specifically set forth. Included therein was a claim of operative property for office furniture and equipment, of a specific valuation, and located in the Fay Building, the Laughlin Building, the Edison Building and Second and Boylston. Notwithstanding these facts the trial court determined as a matter of law that the item "General Offices (leased property)", was a claim of exclusion from local taxation of the property held under lease in the plaintiff's building. I am satisfied that there was every reason for the conclusion on the part of the assessor, as admitted by the pleadings, that there was no intention on the part of the Edison Company in its report to the state board to claim the space occupied by it as operative property. Also, there would seem to be a plain case of estoppel on the part of the owner-lessor because of its return of this building to the assessor for the years 1927, 1928 and 1929 as property for which it should be taxed. The amount of the refund is large and if the leased property be declared improperly on the local tax-roll the county will have been seriously crippled in its fiscal arrangements. This is not the case of an erroneous assessment as matter of law. It may or may not be erroneous depending on the facts as they exist or in this case as represented by the owner to be while the assessor still had power to act. The owner has led the assessor, as to said three years, to believe that certain facts were true, and should not in this litigation be permitted to contend otherwise. (Sec. 1962, subd. 3, Code Civ. Proc.)
Rehearing denied.
*Page 669Shenk, J., and Spence, J., pro tem., dissented.