qualified by the exception that if the person seeking an inspection had an interest in the records, he then had a right to examine them, and could enforce that right, if denied, by mandamus to the custodian to compel him to allow the inspection, or, if the inspection sought was in reference to a cause pending, by motion in the cause. This interest might be either of a public or of a private nature; with this original difference, however, that when a public interest existed, the right of inspection also existed at all times, but when the interest was purely a private one, it must be connected with a cause pending. This distinction was not very closely observed, however, and seems to have been wholly lost sight of in later years, when public records other than judicial, began to grow numerous. Thus, in Herbert v. Ashburner,2 the defendant moved for an inspection of the books of the sessions of Kendale, and it was objected that he had not shown that the books had any bearing on the subject of the suit; but the court held that these were records of public interest, which everybody had a right to inspect. Similarly, it was ruled in People v. Cornell, that the corporators of a municipal corporation have a general right to inspect the public documents and records of the corporation, and to take copies thereof; and that this right is not to be restricted to cases where the corporator has some private interest to enforce; for, in the opinion of the court, "it cannot be seriously questioned that the corporators, notwithstanding the appointment of officers to conduct the business of the corporation, retain a very great interest in the mode and manner in which it may be conducted; and consequently, upon the above reasoning, have a right to full knowledge of all the official acts of their officers, and of course a right to all the means of knowledge which their officers possess in their official capacity." So, too, a citizen, who desires to ascertain whether the provision sof the city charter inreference to licensing saloons have been observed, with a view of enforcing obedience to the law, is entitled to an inspection of all public documents bearing on the question.1 This right of inspection on account of public interest is peculiarly applicable to those in 21 Wils. 297. 3 47 Barb. (N. Y.) 329. 4 State v. Williams, 41 N. J. L. 332. stances where one official, for public purposes, seeks an inspection of records in the office of another, and in every such case the right to inspect and copy will be enforced. The county commissiorers have a right of access to the office of the register of deeds, and to the use of a portion thereof, for the purpose of performing the duties imposed upon them by law; and when a part of one county has been annexed to another, or been formed into a separate county, the officers of the latter have a right to inspect and copy all the records of the original county that have reference to the lands under their jurisdiction. In the second place, when the records have a bearing upon a pending suit, either party thereto has an interest in them sufficient to give him a right to inspect them. A resident inhabitant of a municipal corporation, though not a corporator, and therefore not entitled as such to an inspection of the records on the ground of their public interest, has a right, when charged with a breach of the laws, to inspect and take copies of the by-laws thereof. A tax collector, or his attorney, may inspect the collector's accounts with the State, as kept in the books in the auditor's office: and if the inspection be denied, he may bring mandamus to enforce it. If the refusal of the officer to permit an inspection to which one is rightfully entitled has caused injury, an action for damages will lie against him." As stated above, the old rule as to the difference between public and private interests, as a member of a municipal corporation, and as a private individual, that in the latter case the interest, in order to entitle the claimant to an inspection, must be connected with a pending suit, has become practically obliterated; and the general common law rule in that regard now is, that even if there is no action pending, any one who has a direct interest in the records of which examination is sought, has a right to inspect them.10 Thus, a dealer in tax-titles has a right to inspect the State land tax books, and may enforce 5 Hawes v. White, 66 Me. 305. • State v. Meadows, 1 Kans. 90; Silver v. Whitmore, 45 Ill. 224. 7 Harrison v. Williams, 4 D. & R. 820. See Brewers' Co. v. Benson, Barnes, 236. 8 Brewer v. Watson, 61 Ala. 310. 9 Brewer v. Watson, 65 Ala. 88; Id. v. Id., 71 Ala. 299. 10 R. v. Tower, 4 M. & S. 162. that right by mandamus." This rule is no more than simple justice; for the multiplications of records that has been steadily going on during the past century has included many matters that are of purely private concern, with the professed object of securing the property rights of the individual, and guarding him against fraud, as well as lessening litigation; and any rule that tends to render those objects nugatory is not in harmony with the spirit of the law. For example, the registration of deeds, mortgages, etc., is intended to secure purchasers and creditors from the danger of being defrauded by the existence of a prior undisclosed conveyance or incumbrance. If these records, in which there is certainly no public interest beyond that of mere curiosity interest which the law deems very properly beneath its notice, and rather to be reprehended than encouraged, are to be open to inspection only in case of a pending suit, the objects of the law are practically nullified. Such legislation by its very existence presupposes a right to examine such records before any suit, and even before any transaction between the parties out of which a suit may grow; for the registration of a conveyance or incumbrance is made constructive notice to the world of its existence; and if it is not possible to obtain actual knowledge of it by inspection of the records, that provision of the statute would be simply an engine of vast injustice. It may be regarded, therefore, as now the rule of the common law that as to purely public records every individual member of the municipal corporation, whose the recor is are, has such an interest therein as will give him the right to inspect them; and as to records of a more private nature, every person who has a direct personal interest in them has a right to inspect them, whether a cause is pending in which those records are, or may be concerned or not. It must be borne in mind, however, that the records of which inspection may be thus had are only of a nature designed for public information; and the rule does not extend to records which are only quasi-public, as the court rolls of an English manor ; 12 nor ought it to include cases where the inspection is sought merely to gratify an idle curiosity, or private malice. 11 Aitcheson v. Huebner (Mich.), 51 N. W. Rep. 634. 12 Hereford v. Bridgewater, Bunb. 269. 2. By Statute.-At the present day, in most of the United States, the right of inspection of public records is now secured to the people by statute, without any limitation as to interest; and in these the right is of course common to all. It has been suggested, that when the disclosure sought would be detrimental to the public interests, an inspection would be denied ;13 and there may be cases in which this suggestion would be carried out; but they are so rare that they may be disregarded. Such liberty does, of course, offer great temptation to the reprehensible curiosity of those who delight to pry into their neighbors' affairs, and may, and often does, lend unpleasant publicity to family arrangements; but the benefits of the system far outweigh its disadvantages. It may, however, be regarded as still a question whether this right extends to strangers from another jurisdiction.14 But while in general it would seem that there are no limitations to the right thus conferred by statute, unless expressly stated therein, there has been a decided diversity of opinion on the point whether it included the case of an abstractor or insurer of titles, individual or corporate, seeking to make use of the records for a continuous period, or even for a single occasion, for the purposes of private gain by disseminating the knowledge thus obtained, and thereby interfering with the usual emoluments of the custodian of the same. When this question first arose, it was decided in the negative, but the various and far-fetched arguments by which it was sought to bolster up this ruling would seem to indicate a feeling on the part of the courts of a necessity for special pleading. The most obvious, but at the same time the least weighty ground for so deciding was, that by permitting such a practice, the fees of the custodian would be diminished, and that therefore, as it was not to be supposed that the legislature intended to take away those fees by implication, no search could be made without payment of the legal fees for such a search if made by the clerk.15 But this was open to the equally obvious reply that the law did not give the clerk any right to demand fees for searches made by the 13 Brewer v. Watson, 51 Ala. 310. 14 See Diamond Match Co. v. Powers, 51 Mich. 145. 15 Fleming v. Clerk, 30 N. J. L. 280. parties themselves; 16 and the case in which that doctrine was asserted was accordingly overruled.17 Other and more reasonable grounds on which the right of inspection has been refused to abstractors are, that as the law imposes upon the custodian of the records the duty of keeping them safely, he, or a deputy employed by him, must watch the persons who are examining and copying the books, and that it is not to be supposed that the legislature intended to impose upon him, in addition to the other duties of his office, the burden of spending his time in watching during the whole time that the abstractor would be employed upon the records; 18 that dire results in the way of mutilation of the records might flow from permitting indiscriminate handling of them by everybody;19 and that as the business of abstracting necessarily occupies a considerable space of time, while it is going on, the office of the custodian may be obstructed and the proper performance of his other duties interfered with.20 This right has been accordingly denied, in spite of the apparent meaning of the statute in Alabama, 21 Colorado, Georgia, and Michigan.24 But these arguments will hardly bear investigation. They are all based merely on the supposed results of the legislative enactments; and it is in one of the plainest principles of statutory construction that when the words of an act are clear, the courts are bound to give them effect without regard to results, provided those results are within the scope of the legislative powers. In other words, when the act is constitutional, and clear in its meaning, the courts are not at liberty to admit results, real or fancied, in construing it. And even if this were allowable, it is not properly applied in the case under consideration. There are none of the results imagined that may not happen equally when a private person makes use of the records for a perfectly legitimate purpose, though perhaps to a less degree. In any large city, as New 22 23 16 Townshend v. Register, 7 How. Pr. (N. Y.) 315; Re Chambers, 44 Fed. Rep. 786. 17 Lum v. McCarty, 39 N. J. L. 287. 18 Bean v. People, 7 Colo. 200. 19 Buck v. Collins, 51 Ga. 391. 20 Phelan v. State, 76 Ala. 49. 21 Phelan v. State, supra; Randolph v. State, 82 Ala. 327. 22 Bean v. People, 7 Colo. 200. 23 Buck v. Collins, 51 Ga. 391. 24 Webber v. Townley, 43 Mich. 534. York, Philadelphia, St. Louis, or Chicago, the number of persons desiring to consult the records is far beyond the power of the officer in charge or his deputies, burdened as they are with the other duties of the office, to keep under continual supervision. Cases every now and then occur of mutilation of records by persons for their private purposes (and such are far more likely to occur than those committed by an abstractor, who has no personal interest in the records), and these supposed evils can be to a great extent guarded against by the use of proper regulations.25 In accordance with the gradual recognition of these views, and the growth and importance of the business of abstracting and insuring titles, the current of opinion indicated above has changed. The early Michigan case,26 was overruled in Burton v. Tuite, 27 where these objections are dismissed in the following terse language: "Hardly any, if any, of the results imagined by the writer of that opinion would ever occur, if the holding were otherwise. If any of them should happen, the law is powerful enough to remedy them, and 'sufficient unto the day is the evil thereof.'" The legislature of Colorado, after the decision in Bean v. People,28 passed an acting a giving a broader right of examination, which was perforce, help to include persons engaged in the abstract business;29 and most of the later decisions on the subject have arrived at the same conclusion.30 A sense of the unsoundness of the doctrine that would limit the right of examination given by statute, to persons who had a subsisting private interest therein, and so exclude title abstractors, seems to have driven the courts in some cases to admit the right of the latter to inspect the records, but, whether out of consideration for the fees of the custodian, or for the unsubstantial reasons commented upon previously, to deny the right to make copies thereof,31 except when 25 Burton v. Tuite, 78 Mich. 363; People v. Reilly, 38 Hun (N. Y.), 429; People v. Richards, 99 N. Y. 620; Upton v. Catlin (Colo.), 31 Pac. Rep. 172. See Scribner v. Chase, 27 Ill. App. 36. 26 Weber v. Townley, 43 Mich. 534, 5 N. W. Rep. 971. 29 Stockman v. Brooks (Colo.), 29 Pac. Rep. 746. 30 People v. Reilly, 38 Hun (N. Y.), 429; West Jersey Co. v. Barber (N. J.), 24 Atl. Rep. 381; Hanson v. Eichstaedt, 69 Wis. 538, 35 N. W. Rep. 30; Com. v. O'Donnel (Pa.), 12 N. C. 291. 31 Randolph v. State, 82 Ala. 527; Cormack v. Walcott, 37 Kans. 391, 15 Pac. Rep. 245. 83 specially employed for that purpose. But the right of examination must necessarily carry with it the right to make whatever copies or other memoranda are necessary to effectuate the purpose for which the examination is sought, or else the grant of the mere right of inspection is nugatory. This phase of the question, however, is guarded against in some States by an express statutory provision that those who examine the records shall have the right to make copies or abstracts. A corporation chartered for the purpose of making abstracts and insuring titles will ipso facto have the right of inspecting the records, and making abstracts and copies thereof.84 In spite of the still irreconcilable conflict of decision, therefore, we may adopt as the true doctrine, supported alike by reason, justice, and legislative authority, so far as indicated, as well as by the more carefully considered cases, that whenever by statute a right, unlimited in terms, is given to "all persons" to examine and inspect public records, that right extends to, and may be exercised and enforced by any private individual or corporation, either in person or by agent, whether for information on matters of public or private interest, idle curiosity, or purposes of private gain as an abstactor or insurer of titles, without any hindrance on the part of the officer in charge of the records, other than such reasonable regulations as may be necessary for the preservation of the records, or the proper taansaction of the business of the office, and without any liability to the officer for fees, unless so provided. This rule, however, does not apply where, as in Maryland, there is no such statutory right. There the old common law rule prevails, and the person who seeks an inspection of the records must show an interest therein, either as principal or agent; which of course shuts out the abstractor and title insurer, except when they are specially engaged for the occasion on which inspection is sought.3 The case cited goes farther than this and holds that in no case has the abstractor the right to 32 Boylan v. Warren, 39 Kans. 301. 33 Minn. Gen. Stat. 1878, ch. 8, § 179; State v. Rachac, 37 Minn. 372; R. S. Wis. 700; Hanson v. Eichstaedt, 69 Wis. 538. 34 People v. Reilly, 38 Hun (N. Y.), 429. But see Belt v. Abstract Co. (Md.), 20 Atl. Rep. 982, where, however, this question does not seem to have been raised. 35 Belt v. Abstract Co. (Md.), 20 Atl. Rep. 982. make abstracts himself; he must get them from the clerk. But in view of the considerations urged above and the weight of decision, it would seem to be erroneous on this point, and to be sound law only to the extent marked out. ARDEMUS STEWART. TAXATION-REALTY-PIPES OF WATER COM PANY. INHABITANTS OF PARIS V. NORWAY WATER CO. Supreme Judicial Court of Maine, February 25, 1893. The water pipes, hydrants, and conduits of a water company, laid through the streets of a city or town, are taxable as real estate to the company in possession of them, under our statute, in the city or town where they are laid. HASKELL, J.: Debt for a tax laid upon defendant's aqueducts, conduits, pipes, and hydrants, as real estate, within the town of Paris. These appliances are used to distribute water among the citizens of Paris, supplied by a pumping station and reservoir in Norway, where the defendant corporation has its place of business. By charter (Acts 1885, ch. 369; Acts 1887, ch. 46,) defendant is authorized to supply the inhabitants of Paris and Norway with water, and to lay pipes necessary for the purpose through the streets of both towns. The charter does not locate the corporation in either town. * * * Taxes on real estate are to be assessed "in the town where the estate lies, to the owner or person in possession thereof" (Rev. St. ch, 6, § 9) ; and real estate, for the purposes of taxation, inlands cludes "all and all buildings erected on or affixed to the same," (Id. § 3); and tne word "lands" includes "all tenements and hereditaments connected therewith and all rights thereto and interests therein" (Id. ch. 1, § 6, rule 10.) boom Under these provisions. a across the Kennebec river, fastened to permanent piers in the river and to the shores by chains, was held to be real estate, for the purposes of taxation. Hall v. Benton, 69 Me. 346. So was that part within the State of a toll bridge across a river that marks the boundary line. Kittery v. Portsmouth Bridge, 78 Me. 93, 2 Atl. Rep. 847. Water pipes were assessed in solido with personal property in Rockland v. Water Co., 82 Me. 188, 19 Atl. Rep. 163, and in a suit for the tax it was contended that they were real estate, and improperly included in an assessment with chattels; but the court, without deciding the question, held it immaterial, as the controversy was one of overvaluation, merely. It will be seen from these authorities that the court gives very wide scope to the definition of "real estate," for the purposes of taxation, and it is best that it should be so. Subjects of public revenue should contribute to the public burdens so that they may lie as equally as possible among all the people; and, in these days, when capital accumulates in commercial centers, many times representing contrivances, local and permanent in character, that contribute an income, it is just that such source of profit pay its tax where its location may be. Aqueducts above or under ground are but conditions suited for carrying water, undefiled, through or over the soil. They are fixtures, permanent in character, and part of the land that sustains them. Size, capacity, and the material used in their construction, do not change their nature. They are a constituent part of the freehold, and, so long as they remain the property of the owner of the fee, their character as real estate will not be questioned, It is only when they are constructed and occupied by persons or companies having no title in the soil that their classification as property becomes doubtful; that is, the interest of such persons or companies in them becomes of doubtful classification, rather than their generic character, regardless of ownership. The owner of a fee may, by sale of some structure upon it, and by granting license for it to remain, as between himself and the vendee, make it a chattel, while as a whole, in a generic sense, it would be classified as real estate. The proper classification, under the rules of the common law, of this species of property, is not a new question. It has been many times considered in England during the last century; and water mains and underground conduits have there been considered as fixed to, included in, and a part of the soil. They have been considered real estate, and have uniformly been held locally taxable as such to the "occupiers of lands," under the statute of 43 Eliz., or, as our statute puts it, "to the person in possession thereof." King v. Mayor, etc., of Bath, 14 East, 610; King v. Waterworks, 1 Maule & S. 634; King v. Gaslight & Coke Co., 5 Barn. & C. 466. Under the statute of 28 Geo. III., laying taxes upon the owners of "lands and hereditaments," the pipes of a water company in a street were held to be not taxable as land to the owners of them. Lord Campbell says: "The right in question, where exercised, appears to us to be in the nature of an easement, and neither land nor hereditament. The right is to convey water through the land of another, and whether the water is to be conveyed upon the surface of the ground, or in covered drains, or in pipes, appears to us, for this purpose, to be immaterial. The mere power to lay the pipes in land cannot be considered land or hereditaments; nor do we think that the pipes, when laid, can be so considered, within the meaning of the land-tax acts. *** The company are not the owners of the land where the pipes lie, nor are they the tenants of the land. * The moment the company take up their pipes which had been laid under the streets of any particular parish, all pretense for saying that they have or held land in the parish would be gone; but, after the pipes are removed, all the land in the parish * * * * would remain, and it would be had and be held as before. * But 'land,' like the word 'inhabitant,' which likewise occurs in 43 Eliz. ch. 2. has various meanings; and it may, in that statute, passed to throw a charge upon the occupier, mean the ground on which a chattel is deposited in the exercise of an easement, although, in other acts of parliament, it means a legal interest in the soil. This is the meaning which we think it bears in the land tax acts." Waterworks v. Bowley, 17 Q. B. 358. The city of Providence laid a tax on the pipes of the gas company in the streets, as real estate, under a statute authorizing such a tax against those, "who hold or occupy the same," and it was held a valid tax, like those laid under the statute of Elizabeth. Gas. Co. v. Thurber, 2 R. I. 15. So a pipe line laid through the soil of New Jersey, under grants from the owners of the fee, is not only real estate, when considered as a part of the fee, but is held, for the purposes of taxation, to be real estate of the company owning it, under a statute defining "real estate” as including all lands, and all buildings or erections thereon or affixed thereto. Pipe Line Co. v. Berry, 52 N. J. Law, 308, 10 Atl. Rep. 665. Gas mains and pipes are sometimes distinguished from the class of property now under consideration, as apparatus for the delivery of the manufactured article, and are considered machines or chattels. Com. v. Gaslight Co., 12 Allen, 75; Memphis Gaslight Co. v. State, 6 Cold. 310. Water pipes, etc., are not machinery. Dudley v. Aqueduct Corp., 100 Mass. 183. The public has an easement in land, over which streets and roads are laid, coextensive with the necessities of public use. No title in the soil is acquired thereby, and when the ways are discontinued the easement is extinguished. Private corporations, like gas companies, water companies, and street railway companies, by legislative authority, are sometimes allowed the use of the public easement to serve the necessary demands of society, and without any additional compensation to the owner of the soil. Such companies therefore, by the public license accorded them, take no title in the land. They are simply allowed to use it for the public convenience as a counterbalancing consideration for their expenditure, giving opportunities to gather tolls from its In using the street or road, they place their pipes or rails in or upon the ground, there permanently to remain. They occupy land with appliances that become valuable for they yield. These appliances are fixed, permanent, used in connection with the soil that supports and sustains them. When considered as the property of the irrespective companies, they are not land, within the common law rule. But, when considered as if owned by the same person who has title to the soil, they may properly enough be so considered. Suppose the street, with these appliances in it, be discontinued, and they be abandoned, without use. |