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June 20, 1949


The opinion of the court was delivered by: HOLTZOFF

The question presented in this case is whether a sale of real property for nonpayment of taxes extinguishes an easement with which the property is burdened.

This action is brought by the District of Columbia to enforce a lien for taxes on real property. The statute under which this suit has been instituted. D.C.Code 1940, §§ 47-1001 to 47-1015, provides that property on which real estate taxes are delinquent shall be sold; that in case no other person bids the amount due, the Collector of Taxes shall purchase the property for the District of Columbia; that if the property is not redeemed within two years thereafter, the Commissioners of the District of Columbia may bring suit to enforce the lien for taxes by a decree directing a sale of the property. Id. Sec. 47-1011. The present action has been instituted pursuant to the last mentioned provision.

 The property in question is a strip of land approximately 44 feet wide and 660 feet long. The defendants, John H. Wilkins Company and Railway Terminal Warehouse Company, own parcels of land immediately adjoining this strip, and each has a right of way over it. Each of these two defendants has interposed a counterclaim alleging that it owns an easement over the property in question; contending that the right-of-way cannot be affected by the tax assessment or tax sale; and seeking a declaratory judgment to establish that the tax assessment and tax sale do not take priority over the right of way and that the sale for nonpayment of taxes should be made subject to the right-of-way. The obvious purpose of attempting to secure a declaratory judgment it to prevent the formation of a cloud on the defendants' title to the easement as a result of the proposed tax sale.

 The question whether an easement to which real property may be subject is extinguished by the foreclosure of a tax lien, is one of novel impression in the District of Columbia. It has, however, been the subject of considerable discussion in other jurisdictions. The authorities on this point are divided.

 The majority view is to the effect that an easement is not destroyed by a sale of the servient estate for nonpayment of taxes. The leading case upholding this doctrine is a decision of the New York Courts, Jackson v. Smith, 153 App.Div. 724, 726, 138 N.Y.S. 654, 656; affirmed, 213 N.Y. 630, 107 N.E. 1079, in which the following statement was made (153 App.Div. pp. 726, 727, 138 N.Y.S. p. 656):

 'An easement is a servitude upon, and differs from an interest in, or lien upon, the land. It is not a part of, but is so much carved out of the estate in, the land, and is as much a thing apart from that estate as a parcel of the land itself conveyed from it.

 'If the principle contended for by the respondents is sound, the owner of the dominant estate, who pays taxes upon a valuation which includes the value of his easements, must also, to protect his easements, pay taxes assessed on another's property, although the value of the easements is necessarily excluded from the assessed valuation thereof.'

 The same conclusion was reached in Tax Lien Co. v. Schultze, 213 N.Y. 9, 106 N.E. 751, L.R.A.1915D, 1115, Ann.Cas.1916C, 636; and Blenis v. Utica Knitting Co., 73 Misc. 61, 130 N.Y.S. 740; affirmed, 149 App.Div. 936, 134 N.Y.S. 1126; affirmed, 210 N.Y. 561, 104 N.E. 1127. The New York cases have been frequently cited in other jurisdictions and these principles approved and applied.

 Thus, in Crawford v. Senosky, 128 Or. 229, 274 P. 306, 307, the Court said:

 'But the foreclosure of a tax lien does not cut off easements that have been carved out of one property for the benefit of another.'

 In Ross v. Franko, 139 Ohio St. 395, 397, 40 N.E.2d 664, 665, the Court enunciated this doctrine in the following manner:

 'It is undisputed that an easement constitutes a right and privilege belonging or appertaining to the dominant estate. The value of such estate is accordingly increased and that of the servient estate diminished; and both are taxable upon that basis. Consequently the basis of the forfeiture and sale for non-payment of taxes would necessarily be the same. In the instant case it was the diminished servient estate that was forfeited and sold. The dominant estate was left undisturbed.'

 Montana, New Hampshire, New Jersey, New Mexico, Pennsylvania, and Utah, have also adopted the majority rule, Northwestern Improvement Co. v. Lowry, 104 Mont. 289, 66 P.2d 792, 110 A.L.R. 605; Gowen v. Swain, 90 N.H. 383, 10 A.2d 249; Ehren Realty Co. v. Magna Charta Building & Loan Ass'n of Newark, Co., 120 N.J.Eq. 136, 184 A. 203; Alamogordo Improvement Co. v. Prendergast, 43 N.M. 245, 91 P.2d 428, 122 A.L.R. 1277; Tide Water Pipe Co. v. Bell, 280 Pa. 104, 124 A. 351, 40 A.L.R. 1516; Hayes v. Gibbs, 110 Utah 54, 169 P.2d 781, 168 A.L.R. 513.

 The opposite view, to which a minority of the States adhere, is well expressed in Hunt v. City of Boston, 183 ...

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