Given v. Wright

after stating the case as above reported, delivered the opinion of the court.

It appears from the record of the case of New Jersey v. Wilson, preserved in our files, that the act of 1796, authorizing the lands to be leased out, was not brought to the attention of this court. Whether, if it had been, it would have affected the judgment of this court is uncertain. It probably would not have done so; and we must assume it to be res juclioaia that in 1805 (when the case of New Jersey v. Wilson arose), the lands remained exempt from taxation in the hands of - the purchasers.

We do not feel disposed to question the decision in- New Jersey v. Wilson. It has been referred to and relied on in so many cases from the day of its rendition down to the present time, that it would cause a shock to our constitutional jurisprudence to disturb it now. If the question were a new one we might regard the reasoning of the New Jersey judges as entitled to a great deal of weight, especially since the emphatic declarations .made by this court in Providence Bank v. Billings, 4 Pet. 514, and other cases, as to the necessity .of having the clearest legislative expression in order to impair the taxing power of the State. See the eases collected in Vicksburg &c. Railroad Co. v. Dennis, 116 U. S. 665, 668..

The question, then, will be, whether the long acquiescence of the land owners under the imposition of taxes, raises a pm sumption that the exemption, which once existed, has' been surrendered.

This question, by itself, would -be a -mere question of State municipal law, and would not involve any appeal to the Con: stitution or laws of the United States. But where it is charged *656 that the obligation of a-contract has been impaired by a State Jaw, as in this case by the- general .tal law of New Jersey as •administered bysthe State authorities, and the State courts justify such-impairment by the application of some general rule’ of law to the facts of the case, it is oür duty to inquire whether the justification is well grounded. If it is not, the party is entitled to the benefit of the constitutional protection. Murdock v. Memphis, 20 Wall. 590, 636, Proposition 6.

■ -We have carefully read the evidence in this case, and are satisfied that the lands were regularly assessed for taxes, and that the taxes were paid without objection from 1814:, or about 'that time, down to 1876, the time of the assessment complained of — a period of sixty years. If an exemption from, taxation can be lost in any case, by long acquiescence under the imposition of taxes, it would seem that an acquiescence of sixty years,, and, indeed, a much shorter period, would be amply sufficient for this purpose, by raising a conclusive presumption of a surrender of the privilege. An easement may be lost by nonuser in twenty years, and even in a less time if it is affected by positive acts of invasion. ■ A franchise may be lost in the same way, ’ nonuser being one of the ' common , grounds assigned' as a cause of forfeiture. 3 Bl. Com. 262. Exemption from taxation being a special privilege granted by the government to an individual, either in gross, or as appurtenant to his freehold, is a franchise. Nonuser for sixty, or even thirty years, may well be regarded as presumptive proof of its abandonment or surrender. The present case is a strong one. The nonuser consists of acquiescence in actual taxation, or an actual invasion - of the franchise, year by year, ' for a period of years reaching almost 'beyond the memory of man. . It is not merely amase of nonuser, but-one of disaffirmance of the privilege for this' long period.

If the. franchise were one which affected adversely the rights - of' other individuals, they might not be able to question its validity in a collateral proceeding. But it is set up against the government itself, whilst exercising one of its most important .prerogatives. We see no reason why, in such a casé, the government may not claim the benefit of lapse of time as a *657 ground of presumption of tbe surrender of the' franchise, though the same period of nonuser would be a ground of forfeiture in a direct proceeding on the part of the.State to revoke the franchise. We think the reasoning of the Supreme Court of New Jersey in this case is entirely satisfactory:

The judgment is affirmed. ■