The relator is a turnpike corporation, which was organized pursuant to an act of the legislature, passed in 1804, and which exists under the same and various amendatory acts. A part of its road, which was constructed over an old highway, is in the town of Bethlehem, in the county of Albany, and in 1903 the assessors of that town assessed its real estate for purposes of taxation. The assessment in the column of the assessment roll, required for the description of the property proposed to be taxed, was in this language: "From city limits to Babcock's Corners and a branch from Corning's Hill to gate of Isaac Sanders on River Road below Abbey hotel *Page 403 — 5 miles of highway" and the amount of the assessment upon the "full value of real property taxed" was $20,000. An application to cancel the assessment having been denied by the assessors, the relator obtained a writ of certiorari to review their action and, upon the matter coming on to be heard before the Appellate Division of the Supreme Court, in the third department, the assessment was there confirmed. It appears that the relator has its principal office in the city of Albany; where is, also, its toll house for the collection of tolls from travelers upon the road. Unless, therefore, it is shown that it owns real property for assessment within the town of Bethlehem, the taxing district, the assessment was invalid. The petition alleges that the turnpike road was an ancient highway and that the fee thereof was never acquired, whether by purchase, condemnation, or otherwise. The return to the writ alleges that the relator owns the fee of the lands; but qualifies the assertion by basing it upon certain facts, "which comprise all the evidence upon the subject." Those facts are stated to be the power and authority given to the corporation to "contract and agree" for the purchase of lands, for the purpose of making the road and for maintaining a toll house and other works pertaining to the road; that it has been in the sole possession of and control over the roadway to the exclusion of all persons, except travelers thereon, and has made all repairs to the surface of the road and to bridges and culverts throughout the same at its own expense; that upon certain occasions, instanced in the return, the company had granted the right to other corporations to cross, or to use, the road for a consideration and a portion thereof had been acquired for railroad uses in condemnation proceedings. But after enumerating the various facts, which they deemed to evidence an ownership in fee, the assessors admit the prior existence of a highway and that there is nothing which evidences the acquisition by the company of any property, whether by condemnation proceedings, or by conveyances of record; "nor are there any original conveyances to the petitioner in its possession." It is, therefore, the necessary *Page 404 inference, if not the actual admission, that the company does not own the fee of the land constituting the road, and the claim of the respondents cannot, now, be based upon any such fact. The Appellate Division, in an opinion, expressed, very plainly, the theory upon which the assessment is sought to be sustained and it is the only one, which, indeed, is at all arguable. The opinion, having admitted the insufficiency of the evidence to show the ownership of the fee, finds a basis for an assumption that the relator had structures, which, under the provisions of the Tax Law, (Subdiv. 3 of sec. 2 of chap. 908 of the Laws of 1896, as amended by chap. 712 of the Laws of 1899), can be separately assessed as real property. The opinion reads as follows: "It may fairly be assumed that the relator substantially complied with the articles of incorporation, and that it has erected and maintained tangible property 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. * * * Such easement and tangible property come within the statutory definition of `real property' for the purposes of the assessment and collection of taxes."
Doubtless any tangible property of the relator acquired, or constructed, and maintained within an exercise of its corporate powers and privileges, of which the learned court below makes mention in its opinion, may be subjected to assessment for taxation as real property, within the intendment of the Tax Law. There is, however, no evidence in the record of anything in the nature of property within the town limits, except it consist in the roadbed; which, presumably, the relator did construct according to the precise directions in the act of incorporation, as to width, depth and materials. I say presumably; because, under the act, the license from the governor to maintain the toll house was dependent upon the completion of the road according to the statutory requirements. *Page 405 If we assume that to be an "article," or "structure," or "superstructure," classified by the Tax Law as real property, and if we might, further, assume the construction, or addition, and the present existence, of other "articles and structures," which under the charter might be erected and maintained — an assumption which, as I have said, does not rest upon any allegation in the return showing that there were such — then the difficulty in the way of sustaining the assessment as made is that the description is insufficient. What the assessors undertook to assess is "5 miles of highway;" but that includes, if it does not, in the ordinary understanding, mean the fee of the land. As we have seen, that is not the fact, and all that the relator possessed was something in the nature of a public easement in the highway, which it acquired by the grant from the legislature. (People exrel. Dunkirk F.R.R. Co. v. Cassity, 46 N.Y. 46.) Undoubtedly, the assessors intended only the fee of the land and their present contention appears to have been rather in the nature of an afterthought. The assessment roll was misleading, if it meant more, and gave no notice to the relator that it was proposed to tax it upon something which, though not the fee, nevertheless, was deemed taxable as real property, within the Tax Law. Notice, or at least the means of knowledge, is an essential element of every just proceeding, which affects the rights of persons, or property, and the identity of the subject-matter of the duty of payment of taxes should be made known to him, who is to perform it, by name, or description. (Cooley on Taxation, p. 282.) "Five miles of highway" is but describing five miles of land held in the form of a road. It suggests nothing else to the ordinary mind, in the way of something besides an ownership, or an interest, in the soil. In the cases, to which we are referred by the respondents, as justifying their proceeding, the assessments, which were made, described structures upon, or additions to, the land; as will appear from an examination of the records. (People ex rel. Dunkirk F.R.R. Co. v. Cassity,supra; Hudson River Bridge Co. v. Patterson, 74 N.Y. 365;People ex rel. Van Nest v. Commissioners *Page 406 of Taxes, etc., 80 ib. 573; People ex rel. N.Y. Elev. R.R.Co. v. Commissioners of Taxes, etc., 82 ib. 459.) It is not, under our Tax Law, necessary that the corporation to be taxed in respect of its interest in real property, shall be the owner of the fee. If it owns that which, being upon, affixed to, or incidental to the land, is classified for taxation purposes by the statute with land, it is assessable for a real property tax; but it is entitled to be reasonably apprised of the subject-matter of the assessment.
There was no information, nor notice, given to the relator of the subject of the proposed tax to be laid upon it and that amounted to the denial of an opportunity to be heard upon the question of liability. In Stuart v. Palmer, (74 N.Y. 183), quoting from Matter of Trustees of N.Y.P. Epis. Pub. School, (31 N.Y. 574), it was said that "it is manifestly proper that the taxpayers should have notice of the imposition proposed to be laid upon them and an opportunity for making suggestions and explanations to the proper administrative board, or office." Both the information and the opportunity to be heard are necessary and must be furnished. That was not the case here.
I doubt that the relator was taxable at the hands of these local assessors upon the interest, which it had in the highway through the public grant; but if that should be regarded as taxable property, then it is my opinion that the assessment was fatally defective for not indicating in its description that it was laid upon something other than an ownership of the fee of the land and that structures, or superstructures, or something apart from the franchise which might be property, were intended to be taxed thereunder.
The order appealed from should be reversed and the determination of the assessors should be set aside, with costs in both courts to the appellant.