Mackall v. Chesapeake and Ohio Canal Company

ERROR to the Supreme Court of the District of Columbia.

This was an action of ejectment for a part of Square No. 3, in the city of Washington. The Chesapeake and Ohio Canal Company, plaintiff below, proved a complete paper title to the land, and a continuous occupation of it for thirty years prior to 1867. The defendant entered that year.

Proof was made of an act of the legislature of Virginia, approved Jan. 27, 1824, entitled 'An Act i corporating the Chesapeake and Ohio Canal Company,' the ninth section of which provides, 'That for and in consideration of the expenses, the said stockholders will be at. . . the said canal and all other works aforesaid, &c., shall be vested, &c., and be for ever exempt from the payment of any tax, imposition, or assessment whatsoever;' and also of an act of Congress approved March 3, 1825 (4 Stat. 101).

It appeared from the proof that the land in dispute had not been used for canal purposes since the year 1830, but had been leased or rented to various parties. The defendant below thereupon offered to show that it had been regularly listed and entered for taxation, and sold in 1864 for the non-payment of taxes assessed against it; and that he was in possession, claiming under a deed from the authorities of the District pursuant to such sale. The court excluded the evidence.

The jury found a verdict for the plaintiff, and a judgment was rendered thereon. The defendant then sued out this writ, and assigns for error the action of the court below in excluding the evidence offered by him.

Mr. C. Ingle, and Mr. S. Shellabarger, for the plaintiff in error.

Statutes conferring powers upon companies, or exempting property from taxation, are to be construed strictly as in derogation of common right.

The act of Virginia did not enlarge the capacity of the company to take and hold real property beyond what was reasonably necessary for the canal purposes specified. The large tract in controversy was not required for the uses contemplated by the charter, nor was it so applied. When listed for taxation, and for a long time previous, it was held by the company as a source of revenue. It was, therefore, subject to taxation, although there had been no judicial proceedings to enforce the forfeiture of the company's right of exemption from bearing its just proportion of the public burdens. Angell & Ames, sects. 449, 450; Hooker v. Turnpike Company, 12 Wend. (N.Y.) 371.

Mr. Walter S.C.ox, contra.

MR. JUSTICE MILLER delivered the opinion of the court.