This is an appeal by the plaintiffs from a tax assessed against them in 1910 upon certain real estate situated in the town of Walpole. It appears that prior to the conveyances and leases referred to in classes A and B, the plaintiffs were the owners of the reservoir created by the dam and flowage rights on the Connecticut river at Walpole, and that they were such at the date of the assessment of the tax in question, except to the extent that they had parted with certain rights or easements in the property by the above mentioned conveyances. It is because of the creation of these alleged rights or easements in the reservoir that the plaintiffs contend they should not be taxed for the full value of the reservoir, and that they are entitled to an abatement to the extent that the easements entered into the valuation which was made the basis of the tax.
If we assume for the purposes of this case that under the conveyances in class A the grantees acquired perpetual easements in the plaintiffs' reservoir, which upon request the selectmen could be required to appraise and assess separately to the respective owners (P. S., c. 58, s. 2), this would not establish that the tax was improperly assessed against the plaintiffs.
In this state real property is taxable to the "person claiming the same"; that is, to the resident owner, or to the resident "who is in the possession and actual occupancy thereof, if such person will consent to be taxed for the same." P. S., c. 56, s. 14. The burden of proof was upon the plaintiffs. Glidden v. Newport, 74 N.H. 207, 209. It was therefore incumbent upon them to show, not only that they had parted with certain rights or interests in the property, but also that they were not in the possession and occupation of the property and did not consent to be taxed for it. This they failed to do. In fact, their evidence and that offered by the *Page 387 defendants tended to prove that they were in the possession and occupation of the property and consented to be taxed for it. The record title was in them so far as the registry of deeds disclosed;. they returned an inventory of the property, without notifying the selectmen that they had parted with any interests in it; and the grantees made no claim of ownership so far as the selectmen knew, and filed no inventory with them as required by chapter 91, Laws of 1909. It also appears from the proposals, which are part and parcel of the conveyances, that the plaintiffs covenanted and agreed to construct and forever keep in repair and free from obstructions the principal canals leading from the dam, and to forever maintain the dam so as to turn the water into the canals, which obligations of necessity required the plaintiffs to retain the possession and occupation of the property.
In view of this situation and of the further fact that the grantees agreed with the plaintiffs to assume and pay all the taxes assessed upon the premises conveyed, in addition to the yearly rental that was reserved, and that the law gives the plaintiffs a lien upon the granted premises for the taxes assessed thereon against them, with a right of action to recover the same (P. S., c. 56, s. 30), we are of the opinion that justice does not require that the taxes in question should be abated. Granite State Land Co. v. Hampton, ante, 1, 7, 8; Morrison v. Manchester, 58 N.H. 538, 555; P. S., c. 59, s. 11.
The defendants' exception to the evidence offered by the plaintiffs is overruled; their exceptions to the refusal to receive the evidence offered by them and to the ruling of the court are sustained.
Case discharged.
All concurred *Page 388