(dissenting). The commissioners of assessment of the city of Hoboken imposed an assessment on what is called the lower ferry property in that city, containing a frontage of approximately three hundred and fifty feet on the Hudson river, upon which is erected the ferry buildings and slips, from which the ferry-boats of the Delaware, Lackawanna and Western Bailioad Company ply between Hoboken and the city of New York. This ferry was operated by Col. John Stevens for the use of the general public before the advent of steam as a motive power, and thereafter under contract arrangement between its owners and the Morris and Essex railroad, ferried the passengers of the railroad in con*788junction with the general public oí the state at large between the two cities. Through mesne conveyances the Delaware,. Lackawanna and Western railroad took the property over in 1903. Some time thereafter the railroad returned the property, with its other buildings, to the state board of assessors, by which board it was assessed as railroad property. The city board of assessors continuing to assess it locally, the question of jurisdiction thus raised was presented to the county board of taxation, and thereafter to the state board of equalization of taxes, which latter board found as to the buildings-that “it clearly appeared that this use'is three-fourths local and onefourtli railroad use,” and canceled the local assessment of $440,000, and substituted upon the ratio aforesaid an assessment of $85,000. Upon review that adjudication was sustained by the Supreme Court. This judgment of affirmation is upon writ of error before us. It is unnecessary for the purpose of this review to consider the question raised by the city as to the right of the Morris and Essex Railroad Company, the lessor of the present owner, to operate a ferry under the provisions of its charter. If it'be conceded that it possesses no such power, the argument still remains that the Delaware, Lackawanna and Western Railroad Company possesses the power under the nineteenth section of tire General Railroad act. Pampb. L. 1903, p. 656.
And since the latter railroad company is undeniably the owner and operator of the ferries, the question of the charter powers of the former company is entirely beside the question at issue. We are relegated, therefore, to the question of the logical soundness, and legal correctness of the view of the state board of assessors in formulating this assessment, and that of the Supreme Court in affirming it. Railroad and canal property was segregated as a class from the general ratables of the state for taxation purposes solely upon the theory that there was a differentiation in use which warranted the segregation as a legislative state policy. State Board of Assessors v. Central Railroad, 19 Vroom 147.
The federal Supreme Court also held under similar circumstances that such a differentiation does not militate *789against the constitutional requirement that property he assessed at true value under general laws and by uniform rules. State Railroad Tax Cases, 92 U. S. 575; Kentucky Railroad Tax Case, 115 Id. 321; Pittsburg Railroad v. Backus, 154 Id. 421.
The ratio decidendi in these adjudications was the peculiar use to which the property was put, for upon that theory alone could the segregation and differentiation in method of assessment be justified under the constitutional inhibition.
The Supremo Court in determining the locus of an assessment in controversies such as that sub judice has frequently emphasized this distinction.
In the case of Camden and Atlantic Railroad Co. v. Atlantic City, 29 Vroom 316, where the Supreme Court had under consideration the character of two distinct properties owned by the railroad company, one admittedly property impressed with a railroad use, and as such assessable by the state board, and the other a street trolley railroad assessable by the local authority, Mr. Justice Garrison said: “The electric system * * * has no such history (i. e., steam railroad úse), and must he judged in the light of its admitted character, irrespective of its ownership. The application of any practical test discloses the independent character of this class of property. Thus supposing the steam railroad company should sell the disputed property to a street railway company, what railroad purpose would thereupon cease to be subserved?” and it was determined that the electric plant, although owned and operated by the steam railroad, was locally assessable.
The case of Lehigh Valley Railroad Co. v. Jersey City, 51 Vroom 298, is clearly distinguishable from the case at bar, and serves to emphasize the rationale which should govern .in the determination of these cases. The learned Chief Justice, who had previously in his opinion recognized the distinction of use as the determining factor (In re United Railroad and Canal Co., 46 Id. 324), again emphasizes it, in the Lehigh Yallev ease, by stating “the test is use' for railroad purposes.” Keeping in mind the distinction drawn by the Supreme Court in the Camden and Atlantic Railroad case *790and the. United New Jersey Railroad and Canal case, in applying this test of railroad nse, can it be rationally claimed that mere ownership regardless of the extent or percentage of use shall determine tire question? Is ownership in the construction of the Railroad Taxation act to be deemed the equivalent of use regardless of the extent of the use ? If so, the adjudications of the Supreme Court recognizing an equálity of use in the locality as a basis for local assessment are not in conformity with this principle of construction.
It is entirely conceivable that the actual railroad use may he but nominal, and the local use the substantial factor of valué in the operation of a ferry plant, as in the case at bar, still under this test of mere ownership the right to assess and tax is denied to the locality, and transferred to a hoard organized by statute for dealing with the assessment of property 'assumed 'to he impressed with a distinct railroad nse, and for that reason segregated from the other ratables of the state. Such a construction of the Railroad Tax act, in .my judgment, militates against the legislative intent and the underlying philosophy of the theory upon which such legislation is based.
In the United New Jersey Railroad and Canal Company case (46 Vroom 324) the question presented was essentially similar to that involved in the case at bar, and tire assessment was ordered to be .divided between the assessors of Jersey City and the state hoard according to what that court found from the facts to be the percentage of nse as between the patrons of the railroad and the general public using the ferry buildings, by way of the city streets.
In the case at bar the state board presumably followed that adjudication and made the division based upon nse at 'the ratio of three-fourths to local nse, and one-fourth to railroad, use, but limited the application of the principle to the ferry buildings. The Supreme Court, in affirming this division and assessment, declared that under tire phraseology of the act for the taxation of railroad and canal property, “the principles enunciated should not be extended any further.”
*791This limitation in the application of the principle presents the obstacle which calls for my dissent. 1 am unable to perceive upon principle any reason for conceding the right of assessment of the superstructure, to the extent of three-fourths its value to the locality, and denying the right to the local board to assess the land upon which the structure stands upon the same basis of value. The concession in this case by the state board that the local use of the buildings is the major use, is essentially a concession that it is the main use. If: that be the conceded fact as to the superstructure, l am unable to perceive upon what principle the use thus defined stops with the buildings, and is held not to extend to the land upon which they stand.
The method of assessment thus adopted is, in the inverse order of assessment, contrary to the usual. practice, and opposed to legal principles, in that it begins with the structures and excludes Hie land upon which- they si and, although vested in the same ownership, and devoted to the same use. The land being the principal element in the use, the assessment should be levied upon it as the fundamental factor, and carry with it as a necessary result the Structures upon it to the extent of the assessment, upon the familiar principle inherent in the maxim Quicquid plantahir solo solo cedit. In my opinion, therefore, the cito is legally entitled upon the principle of use by the locality as determined by the state board to assess the land upon which the buildings and other superstructures stand, to the extent of three-fourths in value of its area.
I am requested by Judges Bogert, Treacy and White to say that they concur in this view.
For affirmance — The Chancellor, Garrison, Swayze, Trencharu, Vredenburgh, Congdon, JJ. 6.
For reversal — Mintijrx, Bogert, White, Treaoy, JJ. 4.