The opinion of the court was delivered, at the circuit session in September, 1856, by
Isham, J.
This action is brought to recover the money which was paid by the plaintiffs in discharge of taxes assessed upon their property by the selectmen of the town of Burlington. The money was paid under protest; and, if the taxes were laid in whole or in part on property exempt from such assessments, the plaintiffs are entitled to recover. The 17th section of the charter of this company provides that, “ The stock, property and effects of the com- “ pany shall be exempt from all taxes levied by, or under the au- “ thority of this state.” If full effect is given to that language, it would seem to create an exemption co-extensive with their right to hold property in their corporate capacity. That provision, however, should be construed so as to carry into effect the intention of [197]*197the legislature. The plaintiffs, by their charter, aré made a body corporate, with power to construct a railroad for the transportation of persons and property, and are authorised to make the necessary surveys, and to lay out their road, not exceeding six rods in width, through the whole length of the line. By the 7th section, the company are authorised “ to take possession and use all such lands and real estate as may be necessary for the construction of the road and the accommodation requisite and appertaining to the same” and, in case of a disagreement as to the price of the land, the matter is to be determined by commissioners. They may also take and hold such real estate as may be granted or given to them to aid in the construction, maintenance and accommodation of the road. The 17th section, after exempting the property of the company from taxation, provides that the legislature, after the expiration of twenty years from the opening of the road, may purchase of the company the road, and all franchises, property, rights and privileges thereto belonging, on payment of the amount expended in making the same, the expenses of repairs, with all other expenses incurred about the same, and ten per cent interest thereon; deducting therefrom the sums received from tolls and other sources of profit.
In relation to charters of this character, and the roads constructed under them, we have had occasion heretofore to observe that, though the capital and the income belongs to individuals themselves, and are used for private gain, yet the construction of these roads is regarded as a public work, established not only by public authority, but for public use and benefit. The title of the property is vested in the corporation, but for public use. The property, so far at least as they are authorised to take it by proceedings in invitum, and the franchises granted to them, can be used in no other way, and for no other purposes. It was probably this consideration, as well as the additional one, that the amount paid in taxes would increase the sum to be paid by the state in case they should become the purchasers of the road, that induced the legislature to exempt the property from these charges. We are not to understand by this, that all the property of which the company may become the owners, and which they may hold under their charter, will fall within that exemption. There must be some [198]*198limit to its operation. It should be confined to that which the company were authorised to take without the consent of the owner, and to which the state would be entitled, on becoming the purchasers of the road. While the company may hold property of that character exempt from taxation, they may at the same time hold, by gift or grant, wood land for fuel, or land on which to erect tenements for those under their employment, and for various other purposes connected with the use of the road, and to which that exemption does not apply. Property of that character is not held in trust for public use. The company are at liberty to dispose of it for other purposes than the use of the road; nor would the state be entitled to become its purchasers on paying its cost. That right would extend only to that property which they were authorised to take in the exercise of the right of eminent domain; and that is the extent to which that exemption should apply. The cases which have been decided on this subject lead to this conclusion. In the case, State v. Commissioners of Mansfield, 3 Zabriskie 510, it appeared that in the charter of the Camden & Amboy Bailroad Company it was provided that “ No other tax or impost shall be levied or assessed upon the said company.” It was held that the exemption applied only to property which was necessary to effect the purposes of their organization; — Potts, J., observing that, “ the legislature, in exempting the company from all other taxes, only intended to include so much property as was necessary and essential to a railroad and transportation business, such as the corporation was' created to construct and carry on; and, that the limitation of that exempting clause must be fixed, where the necessity ends, and the mere convenience begins.” In the case, Railroad v. Berks County, 6 Barr 70, it was held that, as the railroad was exempt from taxation, that property only which was necessary and indispensable to the construction and use of the road was within the exemption. In the case of Inhabitants of Worcester v. The Western R. Corporation, 4 Met. 564, an assessment was made on the passenger depot, and the freight, car and engine houses in Worcester, standing partly within and partly without the line of the railroad location. The commissioners abated the tax upon all buildings lying within the limits of the road, and confirmed the tax upon all buildings without the limits of the location. Ch. J. Shaw, after [199]*199observing that the road was a public work; intended for public use, and that, as such, it was exempt, with all its necessary incidents, from taxation, remarked that “ the limit of that exemption is to be ascertained by considering the extent of the public easement intended to be acquired, and the franchises granted to the proprietors, to enable them to accomplish the proposed end.” It was also held that, the extent to which the company are authorised to talce land without the consent of the owiier, is the extent to which the law regards the land as appropriated to public use. In relation to property acquired by purchase, lying without the limits of the location of the road, the court observed that “such buildings, or other real estate will not be considered as necessarily incident to the railroad and its objects, and therefore will not be exempted from taxation.” We think that view of the subject is satisfactory, and carries into effect the intention of the legislature in making that provision. When, therefore, in the charter of this company, the legislature exempted the stock, property and effects of the company from taxation, reference was had, so far as real estate was concerned, to that which they were authorised to talce by proceedings in invitum, and does not extend to other land, which they may take by grant, and which may or may not be a matter of convenience, or a source of profit.
It appears from this case, that the selectmen in making up the list, and in the assessment of the tax against this company, appraised various lots of land belonging to the company, most of which were without the limits of the six rods which they were authorised to take for the construction of their road.
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The opinion of the court was delivered, at the circuit session in September, 1856, by
Isham, J.
This action is brought to recover the money which was paid by the plaintiffs in discharge of taxes assessed upon their property by the selectmen of the town of Burlington. The money was paid under protest; and, if the taxes were laid in whole or in part on property exempt from such assessments, the plaintiffs are entitled to recover. The 17th section of the charter of this company provides that, “ The stock, property and effects of the com- “ pany shall be exempt from all taxes levied by, or under the au- “ thority of this state.” If full effect is given to that language, it would seem to create an exemption co-extensive with their right to hold property in their corporate capacity. That provision, however, should be construed so as to carry into effect the intention of [197]*197the legislature. The plaintiffs, by their charter, aré made a body corporate, with power to construct a railroad for the transportation of persons and property, and are authorised to make the necessary surveys, and to lay out their road, not exceeding six rods in width, through the whole length of the line. By the 7th section, the company are authorised “ to take possession and use all such lands and real estate as may be necessary for the construction of the road and the accommodation requisite and appertaining to the same” and, in case of a disagreement as to the price of the land, the matter is to be determined by commissioners. They may also take and hold such real estate as may be granted or given to them to aid in the construction, maintenance and accommodation of the road. The 17th section, after exempting the property of the company from taxation, provides that the legislature, after the expiration of twenty years from the opening of the road, may purchase of the company the road, and all franchises, property, rights and privileges thereto belonging, on payment of the amount expended in making the same, the expenses of repairs, with all other expenses incurred about the same, and ten per cent interest thereon; deducting therefrom the sums received from tolls and other sources of profit.
In relation to charters of this character, and the roads constructed under them, we have had occasion heretofore to observe that, though the capital and the income belongs to individuals themselves, and are used for private gain, yet the construction of these roads is regarded as a public work, established not only by public authority, but for public use and benefit. The title of the property is vested in the corporation, but for public use. The property, so far at least as they are authorised to take it by proceedings in invitum, and the franchises granted to them, can be used in no other way, and for no other purposes. It was probably this consideration, as well as the additional one, that the amount paid in taxes would increase the sum to be paid by the state in case they should become the purchasers of the road, that induced the legislature to exempt the property from these charges. We are not to understand by this, that all the property of which the company may become the owners, and which they may hold under their charter, will fall within that exemption. There must be some [198]*198limit to its operation. It should be confined to that which the company were authorised to take without the consent of the owner, and to which the state would be entitled, on becoming the purchasers of the road. While the company may hold property of that character exempt from taxation, they may at the same time hold, by gift or grant, wood land for fuel, or land on which to erect tenements for those under their employment, and for various other purposes connected with the use of the road, and to which that exemption does not apply. Property of that character is not held in trust for public use. The company are at liberty to dispose of it for other purposes than the use of the road; nor would the state be entitled to become its purchasers on paying its cost. That right would extend only to that property which they were authorised to take in the exercise of the right of eminent domain; and that is the extent to which that exemption should apply. The cases which have been decided on this subject lead to this conclusion. In the case, State v. Commissioners of Mansfield, 3 Zabriskie 510, it appeared that in the charter of the Camden & Amboy Bailroad Company it was provided that “ No other tax or impost shall be levied or assessed upon the said company.” It was held that the exemption applied only to property which was necessary to effect the purposes of their organization; — Potts, J., observing that, “ the legislature, in exempting the company from all other taxes, only intended to include so much property as was necessary and essential to a railroad and transportation business, such as the corporation was' created to construct and carry on; and, that the limitation of that exempting clause must be fixed, where the necessity ends, and the mere convenience begins.” In the case, Railroad v. Berks County, 6 Barr 70, it was held that, as the railroad was exempt from taxation, that property only which was necessary and indispensable to the construction and use of the road was within the exemption. In the case of Inhabitants of Worcester v. The Western R. Corporation, 4 Met. 564, an assessment was made on the passenger depot, and the freight, car and engine houses in Worcester, standing partly within and partly without the line of the railroad location. The commissioners abated the tax upon all buildings lying within the limits of the road, and confirmed the tax upon all buildings without the limits of the location. Ch. J. Shaw, after [199]*199observing that the road was a public work; intended for public use, and that, as such, it was exempt, with all its necessary incidents, from taxation, remarked that “ the limit of that exemption is to be ascertained by considering the extent of the public easement intended to be acquired, and the franchises granted to the proprietors, to enable them to accomplish the proposed end.” It was also held that, the extent to which the company are authorised to talce land without the consent of the owiier, is the extent to which the law regards the land as appropriated to public use. In relation to property acquired by purchase, lying without the limits of the location of the road, the court observed that “such buildings, or other real estate will not be considered as necessarily incident to the railroad and its objects, and therefore will not be exempted from taxation.” We think that view of the subject is satisfactory, and carries into effect the intention of the legislature in making that provision. When, therefore, in the charter of this company, the legislature exempted the stock, property and effects of the company from taxation, reference was had, so far as real estate was concerned, to that which they were authorised to talce by proceedings in invitum, and does not extend to other land, which they may take by grant, and which may or may not be a matter of convenience, or a source of profit.
It appears from this case, that the selectmen in making up the list, and in the assessment of the tax against this company, appraised various lots of land belonging to the company, most of which were without the limits of the six rods which they were authorised to take for the construction of their road. In relation to that property, it is expressly stated in the case that the land was not necessary for the proper use or accommodation of the road, except the town lot, which it was conceded was necessary for a depot. We think, upon the principles which have been stated, the taxes were properly assessed upon that property. It also appears that, in that appraisal, the selectmen included a considerable portion of the six rods included within the line of the railroad location. For that land, as also the town lot, which it is agreed was necessary for a depot, the corporation are not liable to be assessed, nor for any buildings or structures erected thereon, if necessary for the support or convenient^use of the road. Whether it would be [200]*200liable to taxation if any part of the land included within the six rods were actually used and appropriated to purposes otter than the construction, maintenance and accommodation of the road, is not a question arising in the case, as there is nothing stated showing that such use was made of it. To that extent, therefore, we think the taxes were improperly assessed. The recovery in-this case, however, must be limited to the money received for the use of the town. The town is not liable for the state, county, or state school taxes, nor where the town collected the money as agents, and have paid over the money as required. Spear v. Braintree, 24 Vt. 419; Fairbanks & Co. v. Kittredge, 24 Vt. 10. The result is, that the judgment must be reversed, and the case referred for the assessment of damages, as stipulated by the parties in the case stated.