The certiorari in this case was issued to review the determination of the respondent, the state board of tax commissioners, in the assessment of the special franchises of the relator in the city of Niagara Falls. We are of opinion that the order appealed from should be *Page 428 affirmed. One of the findings made by the trial court is: "X. The valuation of the relator's special franchise fixed and determined by the State Board of Tax Commissioners for the year 1908 at the sum of $185,400 was less than the actual value of said franchise." This finding of fact having been unanimously affirmed by the Appellate Division is conclusive on us, unless it appears from the other findings that in reaching the finding quoted the trial court adopted a principle prejudicial to the relator. The relator has constructed and maintained a hydraulic canal on its own property from a point above the falls to a point below the falls. The value of this water power the court found to be in excess of twenty-three millions of dollars, and treating the power as being appurtenant to the canal it held that the proportionate part of that value appurtenant to so much of the canal as was included in the street crossings exceeded seven hundred thousand dollars. The value of the tangible and intangible property, as fixed by the respondent, was $185,000. If the court was right in regarding the proportionate part of the water power as part of the tangible property in the streets the assessment fixed by the respondent was far too low. We think, however, that the trial court erred in the view entertained by it. The water power was neither a part of the tangible property within the lines of the street, to wit, the canal, nor was it any part of the special franchise. Nevertheless, we think the relator is not entitled to have the orders below reversed. It was incumbent on the relator to affirmatively show that the assessment imposed by the respondent was excessive (People exrel. Jamaica Water Supply Co. v. State Board of TaxCommissioners, 196 N.Y. 39), and though the trial court erred in considering the water power as an element of the special franchise, we think the relator is equally in error in the claim that the facts it established, and which were found by the trial court, entitled it to a reduction of the assessment. In consideration of the privilege given *Page 429 to construct and subsequently to widen the canal across streets in the village, now city, of Niagara Falls, the relator agreed to construct and forever maintain bridges across the canal at the intersection of several streets or highways. The trial court found that the value of the canal itself or the land on which it was built was $98,986.77, and the value of certain bridges which the relator was bound to construct and maintain was $50,163.57, making the total value of the tangible property in the street $149,150.34, or about $36,000 less than the assessed value. The relator's first claim is that these bridges, though constructed by the relator, were not its property but the property of the public, and, therefore, their value should have been deducted from the assessment. It is not at all necessary to determine in whom the title to the bridges vested. What the relator was to be assessed for was not only the value of the tangible property belonging to it but the value of the privilege of crossing and severing the streets of the city.
Assuming for the discussion that the bridges became the property of the municipality, the only effect of that assumption is to increase the value of the special franchise or right to cross the streets. For this privilege the relator agreed to pay the cost not only of the construction of the bridges to be built by it but also their subsequent maintenance, and we may assume that the privilege was worth what the relator agreed to pay and did pay for it. The only finding the relator has is of the present value of the bridges, which may have deteriorated since their erection, and there is no finding as to the cost of maintenance. We think, therefore, that despite of the erroneous view of the trial court to which we have alluded, the relator did not show itself entitled to relief.
The order appealed from should be affirmed, with costs.
GRAY, HAIGHT, WERNER, WILLARD BARTLETT, CHASE and COLLIN, JJ., concur.
Order affirmed. *Page 430