State ex Rel. Water Co. v. Harnsberger

Full title: THE STATE EX REL. SEDALIA WATER COMPANY v. HARRY H. HARNSBERGER, Collector…

Court: Supreme Court of Missouri, Division Two

Date published: Mar 2, 1929

14 S.W.2d 554 (Mo. 1929)

14 S.W.2d 554

Opinion

March 2, 1929.

1. TAXES: Payment: Separate Items. The general rule is that the taxpayer has the right to pay the taxes on any one piece or item of his property which is separately assessed, without offering to pay the taxes assessed on other parts or in other items.

2. ____: ____: ____: Statute: Personal Property. The language of the statute (Sec. 12905, R.S. 1919) that "the collector shall receive taxes on part of any lot, piece or parcel of land charged with taxes" does not impliedly mean that where taxes are assessed in different items against land, and in another item on personal property, to the same person, the collector must reject a tender of the payment of the land taxes unless the personal property tax is also paid. It means that where a single tract of land is assessed as one item, the taxpayer may pay on any part of that lot without paying on the rest. If property assessed in a separate item is personal, the taxpayer has the right to pay the taxes assessed against him in the other items, strike that item from the list and test its validity.

3. ____: Conditional Payment: Mandamus. Where one of fourteen items in the tax list was stricken off and the amount of said item was deducted from the aggregate of all the items, and a valid check was tendered to the collector for the balance, and the taxpayer sent with the check a receipt to be signed by the collector and returned to him, which was the tax bill with said item stricken off and recited that the collector had received said balance "in full payment of the above account," there was no conditional tender, but a full and complete tender of the taxes due in the other thirteen items, and the taxpayer had a right to compel its acceptance in full payment of the aggregate of taxes shown to be due by the thirteen remaining items.

4. TAXATION: Water Mains: Appurtenance to Real Estate: Statute. Water mains laid underground in the city and connected with the water plant located outside the city are appurtenances to the real estate on which the water plant is located, and are to be considered a part of such real estate for the purpose of taxation unless the statute otherwise expressly provides; and the statute (Sec. 12967, R.S. 1919) in effect requires such water mains to be included as a part of such real estate for purposes of taxation.

5. ____: ____: Separate Item: Statute: Void Assessment. The statute (Sec. 12967, R.S. 1919) requires that, for purposes of taxation, the real estate of a manufactory shall include "all rights and privileges belonging to or in any wise pertaining" to the land and fixtures thereon; and water mains laid in the streets of a city for the sole purpose of supplying its inhabitants with water would be entirely useless unless connected with the power plant, and when the power plant is located outside the city they are appurtenances to the real estate on which the plant is located; and where such plant is assessed at its full value, a separate item in the assessment which places a tax on the city mains, as if personal property, is void.

Corpus Juris-Cyc. References: Appurtenance, 4 C.J., p. 1467, n. 32. Taxation, 37 Cyc., p. 1012, n. 50; p. 1159, n. 32; p. 1164, n. 69.

Appeal from Pettis Circuit Court. — Hon. Dimmitt Hoffman, Judge.

AFFIRMED.

E.W. Couey, George F. Longan and Paul Barnett for appellant.

(1) The taxpayer did not specify what part of the tax he desired to pay. The statute provides that "the collector shall receive taxes on part of any lot, piece or parcel of land, charged with taxes; provided, the person paying such tax shall furnish a particular specification of the part, and if the tax on the remainder of such lot or parcel of land shall remain unpaid the collector shall enter such specification in his return, to the end that the part on which the tax remain unpaid may be clearly shown." Sec. 12905, R.S. 1919. The above section applies only to land, and does not give the taxpayer the right to pay a part of his personal tax. State ex rel. v. Railroad Co., 178 S.W. 444; 13 C.J. 545; 1 C.J. 558; Knapp v. Pepsin Syrup Co., 137 Mo. App. 472; Adams Express Co. v. Black, 62 Ind. 128. Under the statute, no equivocal position may be tolerated upon the part of a taxpayer who wishes to pay in full on a part of his real estate. The collector is entitled to have the question at rest beyond all further controversy. The taxpayer must furnish a particular specification of the part. Sec. 12905, R.S. 1919. (2) Informalities in the assessment of the property do not invalidate the tax. If the contention of relator is correct and the contention of respondent is wrong, then item 7 and item 10 should have been consolidated as one assessment on item 7. No assessment of property or charges for taxes thereon shall be considered illegal on account of any informalities in making the assessment or in the tax lists. Sec. 12801, R.S. 1919. Mere informalities in making the assessment of property or charges for taxes thereon, or in the tax lists, or in making or certifying the back tax book, do not effect the validity of the tax. State ex rel. v. Wilson, 216 Mo. 215; California Water Co. v. Los Angeles Co. (Cal.), 101 P. 547; St. Louis Ry. v. Gracey, 126 Mo. 472; State ex rel. v. Philips, 137 Mo. 259; State ex rel. v. Bank, 120 Mo. 161; State ex rel. v. Dungan, 265 Mo. 353. (3) The tender of taxes was insufficient because the water mains are personal property. Although the mains and pipes of gas and water companies, if laid in lands belonging to the company, seem to be universally regarded as a part of the realty, yet, when they are laid in streets or property belonging to others the authorities are conflicting. In Missouri and in a number of other states such pipes and mains, when laid in streets or property belonging to others, are considered to be personal property. Mulrooney v. O'Bear, 171 Mo. 613; Shelbyville Water Co. v. People, 140 Ill. 545; People v. Board of Assessors, 39 N.Y. 81; Memphis Gaslight Co. v. State, 6 Coldw. (Tenn.) 310; Dunsmuir v. Gas Co., 24 Wn. 104; Chelsea Water Works v. Bowley, 17 Q.B. 358; St. Croix Elec. Co. v. Milltown, 31 N.B. 452. Pipes laid under city streets are personal property within the meaning of the Missouri statutes concerning taxation; because, from their nature, they cannot be sold for taxes. Under the Missouri law a tax on real estate can only be collected by selling the real estate, without any right to a personal deficiency judgment. Charter Oak Land Co. v. Bippins, 200 Mo. 688; State ex rel. Hayes v. Snyder, 139 Mo. 549. On the other hand, the collection of the personal tax is by a suit in personam, resulting in a general judgment, which is a lien upon all the taxpayer's property without exemption. Sec. 12932, R.S. 1919. Where it is doubtful whether property purported to be taxed falls within the description used by law, resort should be had to other statutes relating to the subject to ascertain the legislative intent. Hannibal Ry. Co. v. Shacklet, 30 Mo. 550. Even if the water pipes under city streets should be considered real estate for some purposes, yet, under the scheme of the Missouri taxation statutes they are personal property. It is an old doctrine that property may be considered real estate for some purposes and personal property for others. Thus, a growing crop being considered personal property for some purposes, title will pass under a bill of sale, according to the provisions applicable to sales of personal property. Garth v. Caldwell, 72 Mo. 622; Glass v. Blazer, 91 Mo. App. 564. On the other hand, the foreclosure of a deed of trust upon the land carries with it title to the growing and unsevered crop, even as against one who purchased the crop as personal property. For such purposes the growing crop is real estate. Farmers Bank v. Bradley, 288 S.W. 774. A dam built on another man's land with his consent, has been held to be personal property. Southard v. Hill, 44 Mo. 92. Buildings constructed upon the land of another, but with the understanding or agreement that they are to be removed, have been held to be personal property. Brown v. Turner, 113 Mo. 27. Fixtures are considered real estate for some purposes and personalty for others. (4) Even if the water mains were realty, the tender would have been insufficient. Even in the states where it is held that water mains, gas mains, etc., laid in land belonging to another, constitute realty, it is held that the mains are appurtenances of the land itself. Stearns Light Power Co. v. Trust Co., 223 F. 962; California Water Co. v. Los Angeles Co. (Cal.), 101 P. 547; Colorado Fuel Co. v. Water Co., 53 P. 232; Capital City Gas Co. v. Ins. Co. (Iowa), 50 N.W. 579. If the mains constitute realty, it therefore follows that the taxpayer did not have the right under the statute to pay the taxes on all of the real estate except the water mains. He has a right, under the statute, to pay all the taxes on a part of the real estate, but not a part of the taxes on all of the real estate. State ex rel. v. Railroad Co., 178 S.W. 444. If the mains were real estate, the acts of the assessor and the county clerk in setting forth the valuation and the taxes in two items instead of one constitute but a mere irregularity, which would not invalidate any part of the tax. Authorities under point 2. (5) Mandamus will not lie because the collector was not clearly wrong. A collector must be clearly wrong in refusing a tender of taxes, or mandamus will not lie. Stuard v. Thompson (Tex.), 251 S.W. 278; State ex rel. v. Brown, 172 Mo. 347. The erroneous assessment of mains as personal property is an informality which, under a statute like ours, will not invalidate the assessment. California Water Co. v. Los Angeles Co., 101 P. 547.

James T. Montgomery and Montgomery, Rucker Hayes for respondent.

(1) When the collector received the water company's letter enclosing the check for $8021.47 and the duly certified tax bill from which item 10 was deleted and the total of item 10 deducted from the total of the fourteen items, the collector knew exactly what items the check was intended to cover. The collector's refusal to apply this payment to the thirteen items was a denial of the water company's right to pay these thirteen other items without paying item 10. (2) The statute requires each parcel of land to be assessed and valued separately (Sec. 12802) and provides that each lot shall be chargeable with its own taxes (Sec. 12803), and that the State shall have a lien on each lot for its own taxes (Sec. 12929). (3) The right of the owner of two or more pieces of real estate, which are separately assessed, to pay the taxes upon one without paying the taxes upon the other, is not statutory, but is a necessary corollary from the statutory provisions which limit the lien on any one tract to the amount assessed against it. Our whole taxing system is based upon the idea that the amount assessed against each tract of land is, in effect, a separate tax. Richey v. Moor, 249 S.W. (Tex.) 174; 2 Cooley, Taxation (3 Ed.) 808, 809. This right is not derived from Section 12905 of our statutes. State ex rel. v. Koeln, 255 Mo. 301; Howell v. Lamberson, 231 S.W. (Ark.) 872; Dolman v. Pitt, 109 Mo. App. 133. (4) Water mains and pipes owned by a water company and laid in the streets of a city and connected with a pumping station also owned by the same water company, are deemed a part of the real estate upon which the pumping station is located and are in the nature of appurtenances or fixtures. Providence Gas Co. v. Thurber, 2 R.I. 21; Paris v. Water Co., 85 Me. 333; Warwick v. Carr, 24 R.I. 231; Tidewater Pipeline Co. v. Berry, 53 N.J.L. 212; W.U. Tel. Co. v. State (Tenn.), 9 Bax. 509; Capital City v. Ins. Co., 51 Iowa 31; Dudley v. Corporation, 100 Mass. 183; Oskaloosa Water Co. v. Board (Ia.), 15 L.R.A. 296; Gas Co. v. Baltimore (Md.), 1 L.R.A. (N.S.) 267; Re Des Moines Water Co., 48 Iowa 324; Water Co. v. Fondulac (Wis.), 52 N.W. 439; Herkemer v. Johnson, 55 N.Y.S. 924; Reynolds v. MacLemore (Tex.), 241 S.W. 606; Stearns v. Central Trust Co., 223 F. 962; Badger Lumber Co. v. Water Co. (Kan.), 15 L.R.A. 652; Coolidge v. Hagar, 43 Vt. 13; California Gas Co. v. Los Angeles Co. (Cal.), 101 P. 547; Colorado Fuel Co. v. Water Co. (Colo.), 53 P. 232; City of Grand Haven v. Water Works (Mich.), 78 N.W. 890; Southern Supply Co. v. Rolla, 75 Mo. App. 822. This is the rule in every State excepting those in which there are statutes either making such pipes and mains personal property for purposes of taxation or evincing a legislative policy which is more consonant with their being held to be personal property. Instances of cases holding that gas pipes and mains are personal property under statutes making them so, are Commonwealth v. Lowell Gaslight Co., 12 Allen (Mass.), 75; Memphis Gaslight Co. v. State, 6 Coldw. (Tenn.) 310; Shelbyville Water Co. v. People, 140 Ill. 545; People v. Board of Assessors, 39 N.Y. 81. (5) The tax book does not show that the water mains in the city of Sedalia are appurtenant to the forty-five-acre tract described in item 7. The assessment and levy of a tax upon the forty-five-acre tract described in item 7 and the assessment and levy of an additional tax upon the water pipes and mains in the city of Sedalia which are in reality appurtenant to the real estate described in item 7, is double taxation. State ex rel. Koeln v. Imp. Co., 278 Mo. 310. (6) The levy of a tax upon water pipes and mains in the city of Sedalia without a specific description of the real estate to which the said pipes and mains are appurtenant, is not the levy of a valid tax against the real estate to which they are appurtenant because the tax book does not contain an accurate description of the property upon which the lien of the State shall attach. State ex rel. v. Linney, 192 Mo. 49; State ex rel. v. Burrough, 174 Mo. 700; Sec. 12967, R.S. 1919. (7) There is no ground whatever for the assertion that these pipes and mains were assessed as personal property. There is no evidence that they were ever entered on the personal assessment list, nor that the tax books show them assessed as personal property. Being real estate, they were presumably assessed as such, in the absence of a clear affirmative showing to the contrary. (8) There is no evidence, and it is not a fact, that they were assessed as appurtenances to the forty-five-acre tract. They were in fact assessed as real estate in the city of Sedalia, and the tax was to the city of Sedalia. The county clerk didn't even have a right to collect that part of the tax owing to the city of Sedalia unless the levy were made under Article 13 in relation to the taxation of railroads, in which case the whole tax is invalid.

WHITE, C.J.

The relator filed its petition in the Circuit Court of Pettis County praying for a writ of mandamus to compel the respondent, Collector of Revenue of Pettis County, to receive and receipt for a sum tendered by the relator in payment for taxes assessed against the relator for the year 1927.

The tax books of Pettis County show that the petitioner was assessed for taxes in 14 items, in the aggregate sum of $10,771.47. Of those 14 items the controversy turns upon items VII and X. They are stated in the petition as follows:

"ITEM VII: Valuation $600,000; 45.29 acres consisting of thirty acres, the southeast corner of the northwest quarter of the northwest quarter, 11.29 acres, the southwest part of the northwest quarter of the northwest quarter and the north side of the southeast quarter of the northwest quarter, and four acres the north side of the north half of the southwest quarter of the northwest quarter north of the creek, all in section 22, township 45, and range 21:

State tax ......................................... $ 780.00 County tax ........................................ 2160.00 Road tax to road district No. 39 .................. 900.00 School tax to School District No. 29 .............. 1500.00 _________ Total ........................................ $ 5340.00

"ITEM X: Valuation $110,000; water mains, City of Sedalia:

State tax ......................................... $ 143.00 County tax ........................................ 396.00 Road tax to road district No. 39 .................. 165.00 School tax to Sedalia School District No. 200 ..... 1496.00 City of Sedalia ................................... 550.00 _________ Total .......................................... $ 2750.00

"That the property distributed in Item X, being water mains in the city of Sedalia, are water mains which are a part of the water mains running underground from the pumping station of the respondent on the 45.29 acres of land above described, in Item VII, to and into the city of Sedalia and under the streets and alleys thereof through which the respondent supplies water to the city of Sedalia and the inhabitants thereof and that said water mains are all appurtenant to the said pumping station and the real estate of which said station is a part."

The amount of taxes assessed against the petitioner in Item X, $2750, deducted from the total, leaves $8021.47. The petitioner, relator, struck out Item X, and sent his check to the collector for the balance. Attached to the check was the receipt in full for the taxes paid. There is dispute as to the purport of that receipt. No question is raised that the tender of the check was a sufficient tender, but respondent refused it. The trial court rendered judgment for the petitioner and found as follows: ". . . that the tax books of Pettis County, Missouri, show that the property of the relator was charged with the fourteen several items of taxes for the year 1927 as set out in said petition and said alternative writ of mandamus; that the total amount of said taxes for the year 1927, as shown by the said tax books, was $10,771.47 embraced within the fourteen items set out in the relator's petition and alternative writ of mandamus; that on December 31, 1927, the relator tendered to the respondent the sum of $8021.47 in payment of all of the taxes levied and assessed against the said property described in all of the said fourteen items excepting Item X thereof, which Item X amounted to $2750, and that the said respondent refused to accept the said tender of $8021.47 because the said tender did not include the payment of the taxes described in the said Item X; that the refusal of the said respondent to accept payment for the said thirteen items aforesaid was a denial to the relator of its legal right to pay the taxes which appear by said tax books to have been assessed and levied against the several items of its property described in the thirteen several items aforesaid; that the relator has paid into court for the respondent the said sum of $8021.47 and that the clerk of the court is now holding the same subject of the acceptance of the respondent, and that the relator is wholly without any remedy in the premises by or through the ordinary process or proceedings at law.

"It is therefore considered, adjudged and decreed that the respondent, having failed to show cause why he should not have accepted the tender of taxes, be and he is hereby ordered and directed to accept of the relator or of the clerk of this court the said sum of $8021.47 in payment of the said thirteen items of taxes aforesaid, and is hereby ordered and directed to give the relator the statutory receipt therefor. It is further adjudged and decreed that a peremptory writ of mandamus be issued herein."

I. First it is claimed by the appellant that relator Payment: could not pay part of the taxes assessed against it and Separate leave the rest unpaid. Items.

The general rule, as laid down in 37 Cyc. (pp. 1164 and 1165), is as follows:

"But the citizen always has the right to pay the amount of any one tax listed against him, while refusing or omitting to pay others, or to pay the taxes for a current year, and contest those assessed for previous years, or to pay the tax on any one piece or item of his property which is separately assessed, without offering to pay the taxes on other parts."

The fourteen items in relator's taxbill were separately assessed, Item X standing by itself. The rule quoted from Cyc, according to the common practice, would apply here.

Appellant calls attention to the following language, Section 12905, Revised Statutes 1919:

"The collector shall receive taxes on part of any lot, piece or parcel of land charged with taxes."

He claims that Item X describes personal property, and his argument seems to be that Section 12905 impliedly provides that personal property assessed in different items to the same person could not be separated in the payment of taxes.

The provision quoted means that where a single tract of land is assessed as one item the taxpayer may pay on any part of that lot without paying on the rest. It gives a taxpayer on real estate an additional advantage over a taxpayer on other forms of property. State ex rel. v. Railway Company, 178 S.W. 444, cited by the appellant, is where there were no separate items, but the taxpayer made a deduction from the total amount assessed for one year and wanted to pay that. Where a man, for instance, owns two stocks of goods in separate stores, assessed separately, there is no reason or law which would prevent him from paying the taxes on one, and test the validity of the other by refusing to pay. The taxpayer may be assessed on his stocks and bonds in one item and on his household goods in another item. Undoubtedly he could pay on one without paying on the other, and the collector would be obliged to receive such payment and receipt for that item. Assuming for the purpose of the argument that the property listed in Item X is personal, it is assessed in a separate item and relator had a right to pay upon the rest, strike that item from the list and test its validity, as he does in this case.

II. Appellant claims further, however, that the Conditional tender was conditional because a voucher was Tender. attached to the check. The letter with which the relator sent a check, read:

"Kindly return receipt to us in enclosed envelope and oblige."

The receipt read:

"Received from Sedalia Water Company $8021.47 in full payment of above account."

Mr. Andrews, president of the Water Company, testified that no condition was attached to the reception of the check; that it was not necessary to sign any voucher in order to receive the check for the remaining items. The trial judge appended to the files an opinion in the nature of a finding in which he said that the amount of Item X, $2750, was not only stricken off but subtracted from the total, and the collector's attention called to the subtraction and the erasure. So that when the check was remitted in payment, with an attached receipt for $8021.47, "in full payment of the above account," it was the exact amount of the remaining 13 items and in full of the account as it stood with Item X stricken off. Thus the tender was full and complete and the relator had a right to compel its acceptance in full payment of the account as it actually stood with Item X omitted.

III. We might affirm the judgment from the conclusion already reached. That disposition would leave the matter Water Mains: open for a separate suit by the collector for the Appurtenance: amount contained in Item X. Both parties, Void Taxation. however, desire to settle the question whether the relator is liable for the taxes shown by that item.

It will be noticed that Item X, as set out above, is as follows:

"Valuation $110,000; water mains, City of Sedalia."

Item VII set out above, consists of 45.29 acres of land two and one-half miles south of the center of Sedalia, and outside the corporate limits, upon which is located the plant and machinery of the relator water company. The water mains mentioned in Item VII are connected with the plant. The respondent contends that those water mains are appurtenant to the plant because they would be useless and the plant would be useless unless the water could be pumped into the mains from the plant and constantly used by the company for the purpose of supplying the city of Sedalia with water; that the mains and the plant all consist of one system, and that the valuation placed upon the tract of land upon which the plant is located includes not only the machinery located upon the land but the water mains that lead from it. The forty-five acres is described as a tract of land and no mention is made of the plant machinery or buildings upon it. The appellant contends that the water mains in the middle of the street in Sedalia are personal property and not appurtenant to the plant, and therefore it is taxable as a separate item.

It appears from the evidence that the State Tax Commission sent an engineer to Sedalia to value the plant, which he did as six hundred thousand dollars. And that valuation included the power plant, the mains and the distribution system connected with it. The respondent therefore asserts that to pay a separate tax on these mains would be double taxation because the value is included in that six hundred thousand dollars.

Whether pipe lines connected with a water plant are appurtenant to the real estate upon which the plant is located is something controlled by statute. Appellant cites Shelbyville Water Company v. People, 140 Ill. 545, holding that such pipe lines are personal property and properly assessed as such, separate from the plant. An Illinois statute provides for just that method, and therefore the case is not in point.

The doctrine in Iowa is that the water mains laid in the streets of a city and connected with the plant of a water company are appurtenant to the tract of land upon which the plant is located, and therefore included within the assessed value of the land. [Appeal of Des Moines Water Co., 48 Iowa 324.] The same was held as to gas mains and pipes. [Capital City Gas Light Co. v. Charter Oak Ins. Co., 51 Iowa 31.] In the Des Moines Water Company case the Supreme Court of Iowa said (l.c. 331):

"The argument that if the mains are real estate, that part which is laid in Lee Township should have been there assessed the same as any other real estate, is answered by the fact that their mains acquire their real estate character by being appurtenant to the water-works, and in a conveyance of the works would pass as incident to the principal thing, without any conveyance of the land where they are located."

In Stearns Lighting Power Co. v. Central Trust Co., 223 F. 962, it was held that a mortgage which conveyed a twenty-five-year lease of property, upon which an electric power plant and generating machinery were situated, carried the transmission lines by which the power was carried to the consumer. The court said (l.c. 967), speaking of the erection of the transmission line:

"It was a necessary and integral part of the electric plant. It was physically connected with and annexed to the power plant and generating machinery, which it must be conceded were real estate. Without the transmission line the entire property would have been valueless for the purposes for which it was constructed and created. Its construction and annexation were intended to be permanent. It could not be severed from the rest of the plant or machine without not only impairing but destroying the whole. It thus contained and combined in itself all the elements and attributes of a fixture or appurtenance to real estate."

In Badger Lumber Co. v. Marion Water Supply Co., 15 L.R.A. 652, where an electric light and power company had a franchise from the city and used the streets for the erection of poles on which to stretch wires and suspend lamps, the Kansas Supreme Court held that the poles and wires were appurtenances to the premises of the company and a mechanic's lien for poles furnished would lie against the property on which the plant was situated, although the poles were in the streets and not on the plant. The court said (l.c. 655), quoting Bouvier's definition of appurtenances:

"Things belonging to another thing as principal, and which pass as incident to the principal thing. . . . Thus, if a house and lot be conveyed, everything passes which is necessary to the full enjoyment thereof, and which is in use as incident or appurtenant thereto."

The court then in commenting upon the principle said:

"Here the principal thing was the power-house, and the poles and wires attached thereto were an incident to the power-house and machinery. They were necessary to the enjoyment of the principal thing, and indispensable in the transmission of electricity and the lighting of the city."

In the footnote to that opinion many cases are cited illustrating the attitude of different courts regarding similar situations.

In Oskaloosa Water Co. v. Board of Equalization of Oskaloosa City, 15 L.R.A. 296, the Iowa Supreme Court held that the mains, pipes and hydrants of the water company are appurtenant to and taxable with the real estate where the main works are located.

The Supreme Court of Maine in Case of Inhabitants of Paris v. Norway Water Co., 85 Me. 330, held that under a statute water pipes, hydrants, etc., laid in the streets of a city are taxable as real estate to the company in possession of them, the court holding (l.c. 335) that they could not be considered as appurtenances to the place of supply and taxable there, and disagreeing specifically with the Iowa doctrine. It is difficult to grasp the reasoning by which such pipes could be taxed as real estate apart from any land of the person who owns the pipes. They are not in themselves real estate. They could be real estate only by being appurtenant to the real estate of the owner.

The weight of authority and of reason seems to be with the Iowa rule.

Our statute, Section 12967, defines what shall be considered real estate for the purpose of taxation, to include not only the land itself but also all buildings, structures and improvements and other permanent fixtures of whatever kind: ". . . and all other property belonging to manufactories of whatever kind . . . and all rights and privileges belonging or in any wise pertaining thereto, except where the same may be otherwise denominated by this chapter."

And personal property includes in its definition: "Every tangible thing being subject to ownership, whether animate or inanimate, and not forming part or any parcel of real property as hereinbefore defined."

Appellant cites Mulrooney v. O'Bear, 171 Mo. 613. In that case the Hodiamont Realty Improvement Company platted a subdivision adjoining the city of St. Louis, and, in order to make the lots salable, obtained a water supply from the city and laid a supply pipe on the road known as Maple Avenue and connected with it water pipes leading to the lots which were sold. It was held that the pipes leading to the separate lots were real estate and appurtenant to the lots on which and to which they were laid. These pipes necessarily connected with the supply pipe in the street. It was held that the supply pipe laid in the street was not appurtenant to the several lots but was personal property. It was separately sold by the company to an individual as distinct from the lots. The purchaser didn't own the street in which they were laid and necessarily they were personal property. They were not appurtenant to the lots from which pipes ran to connect with it, though the owner of each lot had a several right to such connection. The pipes in the lots necessarily extended into the street and were appurtenant to the lots, although partly in the street. The court in commenting upon the situation held that a deed which the owner of a lot received did not purport to carry the ownership of the supply pipes in Maple Avenue, and said (l.c. 619), quoting from a New York case:

"Easements existing as appurtenant to a grant of lands, and as arising by implication, only by reason of a necessity to the full enjoyment of the property granted."

In this case the water mains in the streets of Sedalia are practically worthless considered as personal property, separated from the soil. They are "necessary to the full enjoyment of the property." The plant located upon the land of the relator would be absolutely worthless without the pipes and the pipes would be worthless without the plant which supplies them with water. They are appurtenant. "An appurtenance is a thing used with and related to or dependent upon something else which is its principal." [Words and Phrases.] There could be no case in which one thing is more completely dependent upon another for its value and utility than the water mains are dependent upon the plant which supplies them with water.

The statute noted says real estate shall include "rights and privileges pertaining to" the land and fixtures thereon. The dictionary meaning of "pertaining" is "to belong," "have connection with" or "be dependent upon" something. The participle "pertaining" as used in the statute includes the relationship of an appurtenance. It includes all rights and privileges connected with the plant situated upon the tract of land described and must include the right to lay water mains in the street. The land was acquired and the plant established for the purpose of that service. The right to lay pipes in the street was an absolute necessity inseparably connected with the plant and inseparably connected with the water mains laid under and by virtue of that right. That right is appurtenant to that plant — pertains to it. How is it possible to separate that right from the improvement made in pursuance of it? How could one say that the right in this case belongs to and is connected with the power plant, as an appurtenance, and at the same time say that the pipes laid by virtue of that right are not connected with it?

How can you separate the exercise of a privilege from the privilege itself? How can you separate the water mains laid in the street from the right to lay such mains so far as the character of the property is concerned?

Upon both reason and authority the water mains in the streets in the city of Sedalia are appurtenant to the land upon which the plant is located, and therefore should be valued as a part of the real estate, and were so valued by the Tax Commission.

The judgment of the trial court is affirmed. All concur.