Appeal of Sanford

• Citation: 75 Conn. 590,54 A. 739
• Court: Supreme Court of Connecticut
• Decision Date: 17 April 1903
• Parties: Appeal of SANFORD.

54 A. 739

75 Conn. 590

Appeal of SANFORD.

Supreme Court of Errors of Connecticut.

April 17, 1903.

Appeal from Superior Court, Litchfield County; George W. Wheeler, Judge.

Action in the nature of an appeal from the doings of the board of relief of the town of Roxbury. Judgment for defendant, and plaintiff appeals. Affirmed.

Frederic M. Williams, for appellant.

Arthur D. Warner and James Huntington, for appellee.

HALL, J. In 1894 and 1895 the plaintiff, who is a resident of Roxbury, in this state, leased for the term of 40 years to one Phillips, by two written leases, containing similar provisions, about 12 acres of land in said Roxbury containing mineral deposits called "garnets." By various duly recorded assignments, H. Behr & Co., a copartnership, the members of which resided in New York, had, prior to October 1, 1901, become the owners of all the estate, rights, and privileges granted by said leases, and had opened quarries or mines upon said land. Behr & Co. having given in no tax list for the year 1901, the following property was placed in their list as nonresidents by the assessors: One mill, $2,500; garnet quarry, $2,500. Said garnet quarry was upon the land described in said leases to Phillips. The plaintiff gave in a list of the taxable property owned by him October 1, 1901, one item of which was 89 acres of land, duly described, and valued by the assessors at $3,235. Said 89 acres embraced the land described in said leases, but no quarries, mines, or ore beds were named or included in the plaintiff's list. On January 23, 1901, the clerk of the board of relief of the town of Roxbury handed to the plaintiff a writing notifying him to appear on the 27th of that month to show cause why they should not add to his list the garnet quarry (theretofore listed to him, but omitted that year) at the same price it was assessed to him the previous year. The plaintiff appeared before said board at the time named, and was fully heard, and the board added the garnet quarry to the plaintiff's list, assessing it at $2,500, which was not more than its market value, and struck the same from the list of Behr & Co. Behr & Co. did not appear before the board of relief, but the board informed the plaintiff that Behr & Co. had notified them by letter that, if the quarry was listed against them, they would not pay the tax.

The principal question raised by the plaintiff's appeal from the board of relief is whether in the year 1901 the garnet quarry or mine, upon the land described in the leases above named, should have been listed as the property of the plaintiff, or as the property of Behr & Co. Section 2299 of the General Statutes of 1902 provides that "any interest in real estate listed for taxation shall be set by the assessors in the list of the party in whose name the title to such interest stands on the land records of the town in which such real estate is situated." This section is part of an act passed in 1887 entitled "An act concerning the taxation and record of title of real estate." Pub. Acts 1887, p. 749, c. 127. It is not a provision for the listing or taxation of personal property. It means that any separately taxable interest in real estate shall be set in the list in the name of the owner of record of such interest. An estate for years in land is a mere chattel interest. Goodwin v. Goodwin, 33 Conn. 314, 318; Flannery v. Rohrmayer, 49 Conn. 27, 28. Such an interest, unless otherwise provided by statute, is generally not taxable separately from the freehold, although there may be exceptional cases where an interest in real estate, conveyed by an instrument in the form of a lease for a term of years, may for certain purposes be regarded as a fee, as in the case of Brainard v. Colchester, 31 Conn. 407, 411, in which it was held that a lease of real estate for a gross sum for 999 years was to be considered, for the purposes of that case, as practically a conveyance of a fee. Such a chattel interest is not named either in section 2322 or section 2323, which enumerate the kinds of real and personal property liable to taxation, unless, indeed, it can be said to be described by the language of section 2322 concerning quarries, mines, and ore beds, to which we shall hereafter refer, and the very fact that section 2341 provides that an estate for years by gift or devise, and not by contract, shall be set in the list of the person in possession thereof, clearly shows that it was not intended by the language of section 2299 to require estates for years by contract to be listed for taxation in the name of the record owner of such chattel interest. The interest in real estate which section 2299 requires to be listed in the name of the record owner is not a mere chattel interest in land, but a freehold interest properly termed "real estate." Section 2322, in describing the real estate liable to taxation, provides that "quarries, mines and ore beds, whether owned in fee or leased, shall be set in the list separately at their present true and actual valuation." It was not the purpose of this section to direct in whose name different items of real estate should be listed, but to provide what Items of real estate should be taxed. Construed in connection with section 2299, this language means that quarries, mines, and ore beds shall be placed in the list in the name of the record owner thereof, as separate items of real estate, whether severed, or not, from the surface by a conveyance to another of such quarries and mines only. It is the quarries and mines which are to be listed, and not an estate for years in quarries and mines, separate from the freehold estate in them. The value at which they are to be listed is that of the quarries and mines themselves, and not the value of an estate in them for years. Clearly, it was not intended that the owner of an estate in them for years, for however brief a term, should be liable to be taxed for the full value of such quarries or mines, however great that value might be; nor is there any provision that quarries and mines shall be placed in the lists of both the owner and lessee for years, at separate valuations of their respective interests in them. The quarries or mines in question were therefore not properly taxable as the property of Behr & Co., unless, upon the delivery to Phillips of the leases referred to, he immediately became the owner of the unmined garnets beneath the surface of the land described in those instruments.

"Though minerals undisturbed, or in place, are a part of the freehold, and, as such, usually belong to the owner of the soil, they are capable of separate ownership and distinct possession. When there is such a severance of estates, the minerals are real estate, constituting a separate corporeal hereditament capable of distinct inheritance and conveyance," and to the methods of transferring which the general rules regarding conveyances of real estate ordinarily apply. The owner of land may therefore convey the surface or soil in fee, reserving or excepting either an estate in the minerals, or a right to mine them; he may convey an estate in fee in the minerals separate from the soil; or, while retaining in himself the property in the minerals until removed and in possession of the grantee, he may either grant the right or privilege to mine for them, or may lease for a term of years the land itself, together with the privilege of mining during the term. Barringer & Adams on the Law of Mines & Mining, p. 36; Adams v. Briggs Iron Co., 7 Cush. 361, 366; Caldwell v. Fulton, 31 Pa. 475, 72 Am. Dec. 760; Manning v. Frazier, 96 Ill. 279; Warden v. Watson, 93 Mo. 107, 5 S. W. 605; Hartford & Salisbury Iron Co. v. Miller, 41 Conn. 112, 129.

The instruments by which these several estates or interests in minerals are created are frequently, without distinction, called "mining leases," and the numerous decisions as to the respective titles conveyed by them are not entirely harmonious. Their legal effect is to be determined not so much by the name given to them, or the technical terms employed in them, as by ascertaining from the entire language of each instrument the real intention of the...