The opinion of the court was delivered by
Redfield, J.This action is replevin for a quantity of lumber seized by defendant as constable and collector of the town of Westmore, in satisfaction of a tax. The agreed case concedes that the assessment of the tax was regular and legal, and the *92defendant’s proceedings regular, provided the lumber which was the subject of the tax was not exempt from taxation under the provisions of the statute.
On the first of April, 1872, the lumber was owned by the plaintiff and was in the log, cut and drawn, floating’ in Long Pond, so called, in said Westmore. The plaintiff intended to manufacture and market this lumber, and on the 19th March, 1872, had entered into a written contract with John H. Jacobs to erect a steam mill on plaintiff’s land, free of rent, wherein said Jacobs agreed to erect a steam mill, and manufacture and deliver at the railroad station a certain quantity of lumber at a stated price; and the plaintiff agreed to furnish such quantity of lumber annually, for five years, and pay the stipulated price. At this time Jacobs had.drawn a steam boiler on to the premises, but had not begun the construction of a mill. The mill was afterwards constructed by Jacobs under said contract.
I. The mill and machinery, when constructed, was the property of Jacobs. He was at liberty to construct a mill of such capacity as to manufacture all the lumber which his patrons in Westmore and its vicinity could furnish. The plaintiff had no control of the mill or its movement, save the contract-obligation of Jacobs to cut a stipulated quantity of the plaintiff’s lumber annually. The mill and machinery were subject to attachment upon Jacobs’s debts, and to be listed to him as the basis of taxation.
The statute of 1870 exempts from taxation “all manufacturing establishments hereafter erected; and all the machinery and capital used in operating the same * * for the term of five years from the time such establishment shall be put in operation.” At the time this property was listed to the plaintiff, this “-manufacturing establishment ” had not been built, and of course had not “ been put in operation.” The five years term of exemption had not begun on the first day of April, 1872. There existed no state of facts upon which the listers could lawfully predicate exemption from taxation under the statute. The listers, in the performance of their duty, finding this lumber belonging to the *93plaintiff, were bound to place the property in the grand list as the subject of taxation.
It is made the duty of the listers to appraise the property claimed to be exempted and place it in the list, and note the time when such exemption would terminate. But on the first of April, 1872, the prospective exemption was uncertain, dependent upon future contingencies that might or might not occur ; and assuming that the property would at some period of time in the future become exempt, it was entirely uncertain when it would begin or terminate.
We think that at the time the grand list was taken, on the first of April, 1872, it could not be justly claimed that this property was exempt under the statute from taxation.
II. The statute exempted the “ manufacturing establishment ” in the list of Jacobs for the term of five years from the time it went into operation, and was intended to operate upon the list of the owner of the “ establishment.” But when one owns the timber-land and furnishes the lumber; another furnishes the team to draw the manufactured article to the railway station; and the railroad corporation carries it to market; all have an agency, and, measurably, contribute “capital for operating” the establishment ; yet the statute was not intended to exempt the property of all these contributing agencies in operating the establishment.
The fact that the plaintiff was to furnish the entire supply of lumber for Jacobs to manufacture at this “ establishment,” does not differ, in principle, from a case whore two or twenty furnished the material for manufacture, under similar limitations. And if the exemption would attach to such, it would to all the patrons of such a mill, however numerous, and however diverse their residence.
III. We do not deem ourselves called upon in this case to determine the scope and limit of the terms “ capital used for operating manufacturing establishments,” as used in the statute. But we think it quite certain the statute does not exempt 'the patrons of grist-mills and saw-mills doing general custom-work for the community in which they are located. Whether it should *94include the raw material and the manufactured article of the proprietors of such mills, we do not decide. By this disposition of the case, the motion to dismiss becomes unimportant.
Judgment affirmed.