The plaintiff's list, as given in to the assessors in 1905, contained the same items of real estate which were contained in its lists of the two preceding years, — the same dwelling-houses with appurtenant lots, the same 460 acres of land, the same mills and manufactories. As the dams, canals, reservoirs and ponds creating the water-power by which the mills had been operated, are situated in the same town as the mills, the assessors, as had been done in the previous years, treated the water-power as connected with the mills, and assessed it as incidental to the machinery. This was correct, admittedly, under General Statutes, § 2344, had the mills been in operation; and it excluded any further taxation of the land occupied by such dams, canals and ponds, or the water-power connected therewith. If, however, the assessors were wrong in treating the water-power as incidental to the mills and machinery and in valuing it as a part thereof, then, in connection with the land whereon the works creating and reserving it are situated, it was liable to assessment as separate and distinct property. Quinebaug Reservoir Co. v. Union, 73 Conn. 294,297-299, 47 A. 328. The court refused to value it as connected with the mills and machinery, and neglected to assess it separately as distinct property. It would thus escape taxation entirely, and to avoid this result there must be a new trial.
Section 2344 provides that "when water-power, created or reserved in any manner by works wholly located in the same town in which it is appropriated and used, is used by its owner, the whole shall be assessed and set in the list as incidental to the machinery which is operated by it, and not separately as distinct property; and when such power, or any part thereof, is leased from its owner, it shall, to the extent to which it is so leased, be assessed and set in his list at its fair valuation, based upon its net rental." The ground upon which the court refused to assess the water-power *Page 489 as incidental to the machinery, was that, on October 1st, 1905, the date as of which the assessment was made, it was not used by its owner. It is true that it was not in use actually operating the mills and machinery, but it was not disconnected from them and was capable of such use by hoisting the gates. It was supplying the power for their operation as truly as though actually operating them, and thus was as much an incident of the mills and their machinery as when actually operating them. It added to the market value of the mills, the same as it would if they were in operation. It was thus as effectively appropriated by the plaintiff to its own use in connection with its mills as when they were in operation. If the assessment depended upon the actual use of the water-power in operating the machinery, then any temporary stoppage of the mills on the first day of October would render an assessment impossible. When the owner stops his mill, whether for a short time or with the intention of permanently discontinuing its work, there would seem to be no good reason for assessing the water-power and works by which it is created, as disconnected from the mill, and the mill as disconnected from its power. That the statute had no such purpose is reasonably clear from its language. The general purpose of §§ 2344 and 2345 is to provide the manner in which, and the place where, owners of water-power, under the different circumstances which may exist as to its creation and use, shall be assessed for it. Section 2345 applies to cases where the power is created and reserved in one town, and applied and used in another. Section 2344 applies to cases where the power is both created and used in the same town. The particular language now in question is used to designate an owner who appropriates and used the water-power in connection with his own mill and machinery, as distinguished from an owner who leases the water-power to others to be applied and used in connection with theirs, a different way of valuing the water-power being provided in the two cases. The language is apt for this purpose, and we think that an owner who has the *Page 490 water-power applied to his own mills, so that the same is available for immediate use in connection therewith, is using it, within the meaning of the statute, so that it should be assessed and set in his list as incident to the machinery, although the mills and machinery may at the date for assessing it stand idle, whether it be his intention that they shall remain permanently so or not.
After mills in such cases have gone to decay, or been dismantled so that they are no longer liable to assessment as "mills and manufactories," the water-power, not then being incident to any machinery, could only be assessed as incident to the lands and works by which it is created. In the present case the evidence, which is made part of the record, shows that nothing had been done toward dismantling the mills at the date of the assessment. The water-power should have been considered, therefore, as incident to the machinery in valuing the mills and manufactories.
The exceptions to rulings in the admission of evidence need not be considered. Those rulings were due to the principal one, that the water-power was not to be considered in valuing the plant. The questions are not likely to arise upon a retrial.
The defendant claimed that the plaintiff's appeal did not vacate the assessment, and one ground of the present appeal is that the court overruled that claim, and, without evidence, found that $20,000 for the item, "investment in mechanical and manufacturing operations," was an over-assessment. It does not appear from the record that the claim of law was overruled. It does appear that evidence bearing upon the amount of this investment was received upon the trial, apparently without objection. The record, therefore, discloses no action of the court as regards this item which was injurious to the defendant.
There is error and a new trial is ordered.
In this opinion BALDWIN, C. J., HALL and PRENTICE, Js., concurred.