A mere difference of opinion in respect to the precise sum representing the value of real estate, such as occurs of necessity in all valuations of this nature, cannot give to a taxpayer the right to apply to the Superior Court for the equitable relief provided for in this action. Still less can this court set up its opinion as to valuation against that of the Superior Court, nor can it for that purpose speculate as to the degree of weight that may have been given by the Superior Court to one or another element of value proper to be considered in arriving at a valuation which must be reached as a whole in view of elements of value that are incapable of separate valuation.
In the present case the difference of opinion between the taxpayer and the assessors represents a sum nearly equal to two thirds of the assessors' valuation. It is manifest that this difference represents not only the ordinary wide range of judgment, but also a radical error as to fact or law, or both; and such is concededly the case.
The subject of valuation is a manufacturing plant run by water-power, to be valued as a whole, including land, buildings, machinery, driving-wheel, water supply, dams, canals, and so forth. The taxpayer contends that on October 1st, 1905, the manufacture of gunpowder (for which purpose the plant had been constructed with features of construction peculiar to and valuable only for that purpose) had been substantially and permanently abandoned; the assessors deny this, and contend that on that date the plant was still a going concern. This was the controlling issue before the Superior Court. If the taxpayer was right in this, the assessors' valuation was manifestly excessive and illegal, and the taxpayer was entitled to the equitable relief asked. The Superior Court has found this fact as claimed by the taxpayer, and this finding is conclusive.
Upon the trial the defendant claimed that this fact of abandonment being found, it was the duty of the court to determine the amount of water-power used by the plaintiff prior to the abandonment, and the entire amount of water-power *Page 492 that the plant was capable of creating, and to determine, apart from and independent of the works and structures of the plant, the value of water-power or motive force as a marketable commodity which had been created and which was capable of being created at the plant, and to consider these values thus ascertained as material elements to be included in the valuation of the plant. This claim the court properly overruled. Such a method of valuing the plant as a whole is obviously impracticable and contrary to the true intent and meaning of the law. As I read the record, this question of law, stated in paragraph 10 of the finding, is the only substantial question of law presented in the appeal which the court appears to have decided adversely to the defendant. My associates, however, think that it sufficiently appears from the record that the court further held and ruled as a matter of law that the plant not being in operation on October 1st, 1905, and no water-power being in fact then used, the statute forbids, in the valuation of the plant as a whole, any consideration whatever of the fact that the plant is so constructed as to be capable of creating water-power, and that the court accordingly not only considered the fact that the manufacturing business for which the plant was constructed had been abandoned, but excluded entirely as an element of value the fact that the plant was adapted to and capable of creating water-power. I cannot so read the record, and fail to find justification for imputing such a ruling to the court. On the contrary, the record (notwithstanding some want of clearness in the finding as framed) seems to me to indicate that the court did value the plant as one capable of creating water-power, and weighed this element of value in determining its valuation of the plant as a whole. For this reason I cannot concur in granting a new trial. *Page 493