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Arkansas.—Texas & St. L. R. Co. v. Eddy (1884) 42 Ark. 427; Springfield & M. R. Co. v. Rhea (1884) 44 Ark. 258; St. Louis, I. M. & S. R. Co. v. Magness (1909) 93 Ark. 46, 123 S. W. 786.

California.-McNulty

In eminent domain proceedings.

The rule has been often applied in eminent domain proceedings.

Arkansas.-Texas & St. L. R. Co. v. Eddy (1884) 42 Ark. 527; Springfield & M. R. Co. v. Rhea (1884) 44 Ark. 258. California.-McNulty V. Lawley (1919) Cal. App. 184 Pac. 50; Yolo Water & Power Co. v. Edmands Cal. App. 195 Pac. 463. Iowa.-Dudley v. Minnesota & N. W. R. Co. (1889) 77 Iowa, 408, 42 N. W. 359.

V. Lawley (1919) Cal. App. -, 184 Pac. 50; Yolo Water & Power Co. v. Edmands (1920) Cal. App. (1920) 195 Pac. 463. Colorado.-Ft. Collins Development R. Co. v. France (1907) 41 Colo. 512, 92 Pac. 953; Carper v. Risdon (1904) 19 Colo. App. 530, 76 Pac. 744.

Illinois.-American Steel & Copper Plate Co. v. Bilter (1916) 200 Ill. App. 175.

Indiana.-Swaim v. Swaim (1893) 134 Ind. 596, 33 N. E. 792.

Iowa.-Dudley v. Minnesota & N. W. R. Co. (1889) 77 Iowa, 408, 42 N. W. 359.

Kentucky.-Scott v. O'Neil (1901) 23 Ky. L. Rep. 331, 62 S. W. 1042. Maryland.-Baltimore V. Carroll (1916) 128 Md. 68, 96 Atl. 1076.

Massachusetts.-Flint V. Flint (1863) 6 Allen, 34, 83 Am. Dec. 615; Kenerson v. Henry (1869) 101 Mass. 152; Anthony v. New York, P. & B. R. Co. (1894) 162 Mass. 60, 37 N. E. 780; Brackett v. Com. (1916) 223 Mass. 119, 111 N. E. 1036, Ann. Cas. 1918B, 863. See also Brown v. Providence, W. & B. R. Co. (1855) 5 Gray, 35.

New Hampshire.-Concord Land & Water Power Co. v. Clough (1899) 69 N. H. 609, 45 Atl. 565.

North Carolina.-Ridley v. Seaboard & R. R. Co. (1899) 124 N. C. 37, 32 S. E. 379; Suffolk & C. R. Co. v. West End Land & Improv. Co. (1904) 137 N. C. 330, 68 L.R.A. 333, 107 Am. St. Rep. 490, 49 S. E. 350.

Pennsylvania.-Hanover Water Co. v. Ashland Iron Co. (1877) 84 Pa. 279, 10 Mor. Min. Rep. 204; Hennershotz v. Gallagher (1889) 124 Pa. 1, 16 Atl. 518; Com. v. Tryon (1906) 31 Pa. Super. Ct. 146.

Rhode Island.-Spink v. New York, N. H. & H. R. R. Co. (1904) 26 R. I. 115, 58 Atl. 499.

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Maryland. Baltimore v. Carroll (1916) 128 Md. 68, 96 Atl. 1076; Baltimore v. Himmel (1919) 135 Md. 65, 107 Atl. 522 (as stating the rule). Massachusetts.-Brackett v. Com. (1916) 223 Mass. 119, 111 N. E. 1036, Ann. Cas. 1918B, 863 (corporation). See also Brown v. Providence, W. & B. R. Co. (1855) 5 Gray, 35.

New Hampshire.-Concord Land & Water Power Co. v. Clough (1899) 69 N. H. 609, 45 Atl. 565.

North Carolina.-Suffolk & C. R. Co. v. West End Land & Improv. Co. (1904) 137 N. C. 330, 68 L. R. A. 333, 107 Am. St. Rep. 490, 49 S. E. 350.

But in the eminent domain case of Central P. R. Co. v. Feldman (1907) 152 Cal. 303, 92 Pac. 849, it was held that "while the assessed value of property is not admissible as original evidence of its market value, a witness who has testified as an expert may properly, on cross-examination, be asked what is his knowledge regarding such assessment, for the purpose of testing the value of his opinion."

The rule excluding assessment values in eminent domain has been applied in favor of a city taking land in eminent domain. Thus, the countyassessed valuation of lands is not evidence of value against a city taking the land in eminent domain. Re Northlake Ave. (1917) 96 Wash. 344, 165 Pac. 113. See also Re Seward Park Ave. (1917) 96 Wash. 698, 165 Pac. 971.

Where a city takes land in eminent domain the assessed valuation is not evidence against the city, particularly where the assessment is by a "state agency." Girard Trust Co. v. Phil

adelphia (1915) 248 Pa. 179, 93 Atl. 947.

In various other cases.

It will be seen that it is held in the reported case (AMERICAN STATE BANK v. BUTTS, ante, 168) that the assessed value of real property is not evidence of value in an action in regard to land claimed to be a homestead.

The assessed value of land is not admissible in an action for damages thereto. No inference of correctness can be drawn from a failure to object that the valuation is too low. Ridley v. Seaboard & R. R. Co. (1899) 124 N. C. 37, 32 S. E. 379.

The rule excluding assessment values as evidence of value has been applied in an action for damages by fire to growing wood (Spink v. New York, N. H. & H. R. Co. (1904) 26 R. I. 115, 58 Atl. 499), for flowing lands (St. Louis, I. M. & S. R. Co. v. Magness (1909) 93 Ark. 46, 123 S. W. 786), and for diversion of a stream (Hanover Water Co. v. Ashland Iron Co. (1877) 84 Pa. 279, 10 Mor. Min. Rep. 204). It has been also applied in relation to the value of property alleged to have been converted (Carper v. Risdon (1904) 19 Colo. App. 530, 76 Pac. 744), to the value of property mortgaged (Storrs v. Robinson (1902) 74 Conn. 443, 51 Atl. 135, and also in an action to quiet title (Swaim v. Swaim (1893) 134 Ind. 596, 33 N. E. 792). The rule was also applied in a tenant's suit for loss by fire of buildings which the lease required him to keep insured. Anthony v. New York, P. & B. R. Co. (1894) 162 Mass. 60, 37 N. E. 780.

In an action for damages to land by a railroad, for interference of ingress and egress, and for smoke, cinders, sparks, etc., it was held that "there was no error in refusing to allow the introduction of the assessment roll showing the valuation of the property for assessment purposes, made by the county assessor." Ft. Collins Development R. Co. v. France (1907) 41 Colo. 512, 92 Pac. 953.

In an action to set aside a judicial sale for inadequacy of price, the court said: "The evidence of what the property had been valued at in assessment for taxation was wholly

irrelevant. It was but hearsay; the opinion of the assessor or the taxpayer, given out of court and with no opportunity for cross-examination." Scott v. O'Neil (1901) 23 Ky. L. Rep. 331, 62 S. W. 1042.

The assessed valuation of real estate is no evidence of value in a criminal case. Com. v. Tryon (1906) 31 Pa. Super. Ct. 146.

The assessed valuation is not admissible as to property having a market value, in an action in aid of an execution on the ground that the real estate was conveyed away for less than its value. American Steel & Copper Plate Co v. Bilter (1916) 200 Ill. App. 175.

b. Qualified rule.

Some of the cases state the rule as applicable to cases in which the owner does not participate in fixing the assessed value.

Alabama.-Birmingham Mineral R. Co. v. Smith (1889) 89 Ala. 305, 7 So. 634 (obiter); Savannah, A. & M. R. Co. v. Buford (1894) 106 Ala. 303, 17 So. 395; Nashville C. & St. L. R. Co. v. Garth (1908) 155 Ala. 316, 46 So. 583; Pratt Consol. Coal Co. v. Morton (1915) 14 Ala. App. 194, 68 So. 1015.

California.-San José & A. R. Co. v. Mayne (1890) 83 Cal. 566, 23 Pac. 522. (obiter).

Colorado.-Denver & R. G. R. Co. v. Heckman (1909) 45 Colo. 470, 101 Pac. 976.

Illinois. Lewis v. Englewood Elev. R. Co. (1906) 223 Ill. 223, 79 N. E. 44; Mercer County v. Wolff (1908) 237 Ill. 74, 86 N. E. 708; Kelley v. People's Nat. F. Ins. Co. (1914) 262 Ill. 158, 50 L.R.A. (N.S.) 1164, 104 N. E. 188.

Indiana.-Chicago & E. R. Co. v. Smith (1892) 6 Ind. App. 262, 33 N. E. 241; Calahan v. Dunker (1912) 51 Ind. App. 436, 99 N. E. 1021.

Louisiana.-Louisiana R. & Nav. Co. v. Morere (1906) 116 La. 998, 41 So. 236.

North Carolina.-Hamilton v. Seaboard Air Line R. Co. (1909) 150 N. C. 193, 63 S. E. 730. Oregon.

Oldenburg v. Oregon Sugar Co. (1901) 39 Or. 564, 65 Pac. 869.

Thus, it has been held that the assessed valuation of lands, not participated in by the owner, is not evidence of value, in an action for damages for overflow (Savannah, A. & M. R. Co. v. Buford (1894) 106 Ala. 303, 17 So. 395; Oldenburg v. Oregon Sugar Co. (1901) 39 Or. 564, 65 Pac. 869); in an action for nuisance in dumping refuse and discharging contaminated water (Pratt Consol. Coal Co. v. Morton (1915) 14 Ala. App. 194, 68 So. 1015); in an action for damages to lands by fire (Chicago & E. R. Co. v. Smith (1892) 6 Ind. App. 262, 33 N. E. 241; Hamilton v. Seaboard Air Line R. Co. (1909) 150 N. C. 193, 63 S. E. 730); in an action against a railroad company for running against a colt (Nashville, C. & St. L. R. Co. v. Garth (1908) 155 Ala. 316, 46 So. 583); in an action against a railroad for injuring a ditch (Denver & R. G. R. Co. v. Heckman (1909) 45 Colo. 470, 101 Pac. 976); in an action to declare a deed a mortgage (Calahan v. Dunker (1912) 51 Ind. App. 436, 99 N. E. 1021); in eminent. domain proceedings (San José & A. R. Co. v. Mayne (1890) 83 Cal. 566, 23 Pac. 522 (obiter).

An assessor's valuation of household goods, not participated in by the owner, is not admissible as to value of the goods, in an action upon a policy of fire insurance thereon. Kelley v. People's Nat. F. Ins. Co. (1914) 262 III. 158, 50 L.R.A. (N. S.) 1164, 104 N. E. 188.

"So long as assessments are not made at the market value of property in this state, the offering of them, for the purpose of showing value in expropriation cases, will be a useless encumbering of the record," unless accompanied by proof that the appraisement was made by the owner himself. Louisiana R. & Nav. Co. v. Morere (1906) 116 La. 998, 41 So. 236.

c. Cases admitting the evidence. There are a few cases in which the assessed valuation of property has been held admissible as evidence of value. Steam Stone Cutter Co. v. Scott (1900) 157 Mo. 520, 57 S. W. 1076; Ripton v. Brandon (1907) 80 Vt. 234, 67 Atl. 541; Welland v. Middleton

(1844) 11 Ir. Eq. Rep. 603; Swift v. M'Tiernan (1848) 11 Ir. Eq. Rep. 602.

In Fox v. Baltimore & O. R. Co. (1890) 34 W. Va. 466, 12 S. E. 757, the court said that "in the case of Mason v. Harper's Ferry Bridge Co. (1882) 20 W. Va. 223, the court admitted evidence of the assessed value for purposes of taxation, . . . and this court said it was not error."

In an action against stockholders of a dissolved corporation, where it was held that the defendants were indebted to the corporation on their stock subscriptions, the court said: "The objection to the assessment lists is based on the ground that they were not sworn to. These were the official lists on which the defendants paid their taxes, and whilst not conclusive, and not even entitled to as much weight as they would have been if sworn to by the defendants themselves, were still lists to which they as taxpayers had given their assent, either actual or implied, and were legitimate evidence to be thrown into the scales with the rest." Steam Stone Cutter Co. v. Scott (1900) 157 Mo. 520, 57 S. W. 1076, supra.

A poor-law valuation was admitted as some evidence of value in Welland v. Middleton (1844) 11 Ir. Eq. Rep. 603, supra. (It is pointed out in Com. v. Heffron (1869) 102 Mass. 148, that "the statute under which that assessment was made and recorded not only required the entry in a book of a declaration signed by the commissioners, stating that and other particulars, but expressly provided that 'the said book shall, after the signature of the said declaration, be evidence of the truth of every particular so entered therein.' Stat. 1 & 2 Vict. chap. 56, §§ 64, 65.") The Welland Case was followed in Swift V. McTiernan (1848) 11 Ir. Eq. Rep. 602, supra.

Where in a condemnation proceeding the lowest estimate by a witness was $9,400, and the commissioners fixed the compensation as $7,750, and it appeared from the order appealed from that the property was assessed at $1,200, the court said in affirming the order: "This is some evidence of value appearing in the record, which

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the commissioners are presumed to have considered, and we are not disposed to hold that $7,750 is an inadequate compensation for property assessed at $1,200 by public officers personally acquainted therewith." The court had also said that the commissioners "are unhampered by technical rules of evidence and unrestricted as to their sources of information." Re Simmons (1909) 132 App. Div. 574, 116 N. Y. Supp. 952.

It was held in Orleans Levee Dist. Comrs. v. Jackson (1904) 113 La. 124, 36 So. 912, that a party who has for years paid taxes to the state on property which is sought to be expropriated by the state itself, for purposes strictly public, is not in position to argue that the assessment made of that property for many years back should not enter at all as a factor in the consideration of the question of value.

In an action for damages for destroying a vessel, it was held proper to admit evidence of the assessment value of the vessel, on the assurance of the appellee that he would follow it up by showing that the appellant had appeared before the commissioners and asked for a reduction of the assessment, stating that the amount of the assessment was more than the cost of the boat, or more than it was worth, and also stated the amount he paid for the boat, and thereupon the assessment was reduced to the amount as it now stands. This amounted to a declaration as to the value of the boat. Gossage v. Philadelphia, B. & W. R. Co. (1905) 101 Md. 698, 61 Atl. 692.

In repelling a charge of fraud resting, among other circumstances, on the allegation that the pretended price paid exceeded very much the value of the land, it was held that the defendants ought to have been allowed to prove that it was assessed at the price paid. Cardwell v. Mebane (1873) 68 N. C. 485, where the court said that the assessed value was not proof of value.

It has been held that the assessed valuation based on the owner's sworn statement is evidence of value.

Thus, the assessed valuation of personal property based on the owner's sworn valuation was held admissible as an admission; not, however, conclusive. Daniels v. Fowler (1898) 123 N. C. 35, 31 S. E. 598.

In Gayle v. Court of County Comrs. (1908) 155 Ala. 204, 46 So. 261, where the defendant, in proceedings for taking a road, testified on cross-examination at what value he had given in all his lands for assessment, it was held the tax assessment book was not subject to the objection that it was irrelevant and immaterial,

So, the record of the assessed valuation of the capital stock of a corporation, founded on and following the statutory sworn statement made by the proper corporation officer is admissible as evidence of the value of the stock. Ohlwine v. Pfaffman (1913) 52 Ind. App. 357, 100 N. E. 777; Kluge v. Ries (1917) 66 Ind. App. 610, 117 N. E. 262.

d. Evidence rejected as too remote in time.

Thus, assessment values of 1913 and 1914 were held too remote in estimating damages caused in 1911. Baltimore & O. R. Co. v. Kahl (1914) 124 Md. 299, 92 Atl. 770 (not necessary to decision).

In Miller v. Windsor Water Co. (1892) 148 Pa. 429, 23 Atl. 1132, the court said: "The first specification charges error in excluding defendant's offer to show the assessment of plaintiff's property for taxation in 1882 as some evidence of its market value in 1890, when it was appropriated by defendant. The bare statement of the proposition is strongly persuasive, if not conclusive, of its want of merit. At best, such assessments or valuations are a very unreliable measure of market value at the time they are made. As a general rule, they differ so widely from actual market values that no one ever thinks of accepting them as a measure by which to sell or buy. While in a few counties they are merely up to the legal standard, in a large majority they are less than one half, and in others less than one third. Our attention was recently

called to a modified form of assessor's oath, in which that official, in ease of his conscience, obligated himself not to assess at more than 33 per cent of actual value. If the offer had been to prove a recent assessment of plaintiff's property, it, doubtless, would have been entertained."

III. Owner's valuation for assessment. a. General rule.

The owner's valuation in rendering property for assessment is evidence of value. United States v. First Nat. Bank (1918) 250 Fed. 299, Ann. Cas. 1918E, 36; Beckwith v. Talbot (1874) 2 Colo. 639 (cattle); Vernon Shell Road Co. v. Savannah (1894) 95 Ga. 387, 22 S. E. 625 (corporation); Maysville & B. S. R. Co. v. Sparks (1893) 14 Ky. L. Rep. 671 (obiter); Rosenberger v. H. E. Wilcox Motor Co. (1920) - Minn. - 177 N. W. 625 (corporation; obiter); Toledo Consol. Street R. Co. v. Toledo Electric Street R. Co. (1893) 12 Ohio C. C. 367, 5 Ohio C. D. 643 (corporation); Mifflin Bridge Co. v. Juniata County (1891) 144 Pa. 365, 13 L.R.A. 431, 22 Atl. 896 (same); West Chester & W. Pl. Road Co. v. Chester County (1897) 182 Pa. 40, 37 Atl. 905 (same).

This has been held in eminent domain proceedings. United States v. First Nat. Bank (1918) 250 Fed. 299, Ann. Cas. 1918E, 36; Vernon Shell Road Co. v. Savannah (1894) 95 Ga. 387, 22 S. E. 625; Toledo Consol. Street R. Co. v. Toledo Electric Street R. Co. (1893) 12 Ohio C. C. 367, 5 Ohio C. D. 643; Mifflin Bridge Co. v. Juniata County (1891) 144 Pa. 365, 13 L.R.A. 431, 22 Atl. 896; West Chester & W. Pl. Road Co. v. Chester County (1897) 182 Pa. 40, 37 Atl. 905.

In United States v. First Nat. Bank (Fed.) supra, it was held that the owner's valuation in listing lands for taxes was admissible in eminent domain proceedings, as independent evidence of value as well as for purposes of contradiction of the owner.

In Baltimore v. Himmel (1919) 135 Md. 65, 107 Atl. 522, the court expressed a similar opinion.

In a proceeding by a city to appropriate to public use for streets so

much of the toll road of a company as was within the city, it was held that "evidence as to the market value of the stock of a corporation and the amount at which its property is returned for taxation is, of course, not conclusive as to the value of the property owned by the corporation, but such evidence may be considered by the jury for what it is worth, in connection with other evidence, as throwing light upon the value of the property." Vernon Shell Road Co. v. Savannah (1894) 95 Ga. 387, 22 S. E. 625, supra.

The rule has been also applied as to the value of cattle, in an action on contract (Beckwith v. Talbot (1874) 2 Colo. 639), and in an action for damages in obstructing ingress and egress (Maysville & B. S. R. Co. v. Sparks (1893) 14 Ky. L. Rep. 671 (obiter. supra).

In an action against a corporation for selling its stock to the plaintiff with false representations as to its value, the court expressed the opinion that the statements of the defendant's treasurer to the city assessor, placing a less value upon the defendant's assets, was competent evidence. Rosenberger v. H. E. Wilcox Motor Co. (1920) Minn., 177 N. W. 625, supra.

But the value as given for assessment by the owner is not conclusive on him in eminent domain proceedings. New Orleans P. R. Co. v. Murrell (1884) 36 La. Ann. 344.

And the owners of real property are not estopped by their tax returns under oath, valuing such property at less than $5,000, from asserting that such property has that value, in order to sustain the jurisdiction of the Federal Supreme Court of a writ of error to review a judgment of the Hawaiian supreme court in an action of ejectment. Spreckles v. Brown (1908) 212 U. S. 208, 53 L. ed. 476, 29 Sup. Ct. Rep. 256.

It may be noted, while not within the scope of this annotation, that in an eminent domain case the court said: "The testimony as to statements made by one who was a director, a clerk, and the auditor of the corporate pe

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