The deeds to the town of Whitefield purport to convey certain rights as to the future use of the grantors' lands. They are more than mere releases of claims for damages caused by past acts. The conveyance of the right "to forever operate and conduct a tannery," even though it be "hereafter enlarged or rebuilt," so plainly covers future action that argument of the question is unnecessary. So too as to the deposit of sewage "as it is now or may hereafter be conducted," there is the use of apt language to create an easement. The attempt was to convey to Whitefield all the right the grantors would have to use the Johns River or their adjacent lands for these purposes. There being a dispute as to the lawfulness of the upper proprietor's acts as they affected owners lower down the stream, the upper owner undertook to buy from the lower ones a part of the use of their farms. This would ordinarily transfer the right to deposit waste to the extent that it could lawfully be done by one who owned the fee. It is not a license to intentionally or negligently spread disease germs; but (if otherwise valid) it confers the right to act toward the land, in these matters, as though it were the actor's own property as distinguished from the property of his neighbor. Such a right is taxable property. Winnipiseogee Lake, c. Co. v. Gilford, 64 N.H. 337; Amoskeag Mfg. Co. v. Concord, 66 N.H. 562.
It is also urged as an objection to the tax that the act of Whitefield in making such a purchase was ultra vires and void. Towns have only such powers as have been conferred upon them by the state. Wooster v. Plymouth,62 N.H. 193. It is not claimed that any authority exists for Whitefield to embark in the tanning business, or to erect and lease to others a building designed for such use. All its acts in this behalf are beyond the powers granted to it. As to the question of sewage, it does not appear that Whitefield ever adopted the provisions of chapter 79 of the Public Statutes. If it has not, it *Page 95 has no power to build or maintain a sewer system. Granite State Land Co. v. Hampton, 76 N.H. 1.
In answer to this situation it is said that Whitefield cannot claim the benefit of its unauthorized attempt to purchase rights in real estate in Dalton, and at the same time escape the payment of taxes upon such rights under the plea that the purchase was ultra vires. So far as appears, Whitefield has never attempted to exercise the rights described in the deeds. In the argument here it disclaims ever making any contract to purchase such rights, and it asks for leave to take appropriate proceedings to correct the deeds so that they will be merely releases for damage caused by past acts.
The right to tax is determined by the facts as they existed when the tax was laid. At that time Whitefield was holding the title in question, and cannot escape the ordinary incidents attaching to such action upon the plea that it was ultra rites. Manchester Street Railway v. Williams,71 N.H. 312, 321, and cases cited.
Whether, if Whitefield takes the proceedings it has suggested and hereafter divests itself of the record title, it will have a lien upon the property or a claim against the owners for the tax assessed against while holding the title (P.S., c. 56, a. 30; Bellows Falls, c Co. v. Walpole,76 N.H. 384), is a question not now presented.
Even if the real estate lawfully held by a town for a public use were non-taxable though located in another town, the principle involved would not apply to extra-territorial estate the title to which was held town in excess of its corporate powers. As to such property the town cannot claim through its municipal rights, for the reason that it does not hold title under such rights. Being the mere holder of the title it is subject to taxation. The statutory provision that "Real estate . . . is liable to be taxed, except . . . real estate of the . . . town used for public purposes" (P.S., c. 55, s. 2), does not admit a construction which would include the rights conveyed to Whitefield in the excepted class. It is only real estate that is "used for public purposes" that is non-taxable. New London v. Colby Academy, 69 N.H. 443, 446. Not holding the title by virtue of any municipal or public function, the town cannot claim an exemption, or status of non-taxability, which exists (if at all) solely as an incident to the exercise of such function. It is therefore unnecessary to re-examine the question discussed in Newport v. Unity, 68 N.H. 587, and Canaan v. District, 74 N.H. 517. If the deeds convey to the town sewage rights disconnected from the tannery business, the town is not now exercising such right. Upon the case as it stands, the *Page 96 town does not appear to have the power to maintain sewers; and it is not necessary to consider whether such a right is public or private within the meaning of the exemption statute.
The rights conveyed to Whitefield were taxable. In accordance with the terms of the transfer to this court, the case will stand for trial upon the facts as to such other questions as the appeal presents.
Case discharged.
PARSONS, C.J., and PLUMMER, J., concurred.