Bennett v. Grays Harbor County

• Decision Date: 10 November 1942
• Docket Number: 28734.
• Citation: Bennett v. Grays Harbor County, 15 Wn.2d 331, 130 P.2d 1041 (Wash. 1942)
• Parties: BENNETT v. GRAYS HARBOR COUNTY et al.
• Court: Washington Supreme Court

130 P.2d 1041

15 Wn.2d 331

BENNETT v. GRAYS HARBOR COUNTY et al.

No. 28734.

Supreme Court of Washington

November 10, 1942

Department 1.

Action by Frank N. Bennett against Grays Harbor County to quiet title to timber on a tract of land, and to enjoin the county from asserting any title thereto or interfering with plaintiff's rights therein, and in the alternative that W. E. Fickeisen, who was brought in as a defendant, should pay the plaintiff a certain amount which plaintiff had paid to him for the timber. From a judgment for plaintiff, Grays Harbor County appeals.

Reversed and remanded with direction.

Appeal from Superior Court, Grays Harbor County J. M. Phillips, judge.

Stanley J. Krause and Mitchell G. Kalin, both of Aberdeen, for appellant.

Hogan &amp Adams, of Aberdeen, for respondent.

STEINERT Justice.

For a number of years prior to 1939, Carlisle Lumber Company owned a tract of land in Grays Harbor county consisting of three hundred twenty acres, described as the west half of section thirty-three, township twenty north, range eleven west. In this action, we are concerned more particularly with the eighty acres constituting the west half of the southwest quarter of that section together with the timber thereon. From 1930 to 1938 inclusive, the three hundred twenty acres and timber thereon were assessed together as real estate standing in the name of Carlisle Lumber Company. The taxes for those years successively, excepting the year 1936, became delinquent in the total amount of $770.25.

On September 12, 1939, one Claude Trull, then a deputy treasurer of Grays Harbor county, prepared and issued a notice denominated 'Notice of Treasurer's Sale of Personal Property For Delinquent Taxes And Property In Jeopardy.' This notice stated that pursuant to chapter 33, Laws of 1933 (Rem.Rev.Stat. § 11247 [P.C. § 6882-86]), the treasurer had on that day levied, distrained, seized, and taken into his possession personal property of Carlisle Lumber Company described as '(Timber) W 1/2 Sec. 33, Twp. 20, Rge 11' to enforce collection of taxes for the years above mentioned and of an 'advance' payment of $51.36 demanded by the treasurer for the year 1938, payable in 1939, all totalling $821.61. The notice further stated that a sale of the property would be held on a day therein fixed. A copy of the notice was sent to the Carlisle Lumber Company, the owner of the property.

On the same day, September 12, 1939, and presumably prior to the commencement of the distraint proceeding, Trull made a request of the county assessor that the timber on the eighty-acre tract be considered as personal property separate from the land for assessment and taxation purposes. Trull's reason for making this request was that he had learned that the timber was being logged off and dissipated. It appears by stipulation, made a part of the record, that trespassers had cut about one hundred thousand feet of the timber, of which they had carried away about fifty thousand feet, leaving the remainder lying on the ground within the tract. How much timber was left standing on the eighty acres is not shown by the record, although respondent states in his brief that it amount to only about fifty thousand feet.

Pursuant to the information conveyed by Trull, the assessor made the requested separation. Prior to the time fixed for the sale, Trull advised the Carlisle Lumber Company by letter that the distraint proceeding did not cover the standing timber and that the former distraint notice should include 'Down Timber Only.'

On October 20, 1939, the sale was held and the timber was sold to W. E. Fickeisen, the only bidder therefor. Trull issued and delivered to Fickeisen a treasurer's bill of sale describing the property sold as '(Timber only) W 1/2 of SW 1/4 Section 33 Twp. 20 Rge 11,' and reciting that the consideration paid therefor was fifteen dollars, although Fickeisen's testimony was that he paid Trull the sum of twenty-five dollars. Fickeisen also testified that on the day of that transaction Trull advised him that the bill of sale covered both 'Down and Standing Timber.'

About a year later, September 6, 1940, Fickeisen, in consideration of $125, executed a bill of sale according to the terms of which he sold and transferred to the plaintiff, F. N. Bennett, all timber lying and standing on the eighty-acre tract, and warranted the title thereto to be free and clear of any encumbrance. It appears that Bennett was at that time either engaged in or else contemplating a logging operation on adjoining land.

On December 7, 1940, at a tax foreclosure sale, the county purchased the entire eighty-acre tract, bidding in the property for the amount of the delinquent taxes against it.

In the spring of 1941, plaintiff commenced logging operations on the eighty-acre tract here in question. In preparation for such operation he constructed a road onto the premises from the adjoining land upon which he had previously been operating. For that construction plaintiff expended the sum of $214.

In the meantime, the former county treasurer had been succeeded in office by a new treasurer, and Trull likewise no longer held his former position as deputy. When the new treasurer, Minnie Swisher, learned of plaintiff's activities on the eighty-acre tract, which the county had purchased at tax foreclosure sale, she ordered him to cease operations, and, upon his refusal to do so, procured his arrest for trespassing on the county's land. Plaintiff thereupon commenced this action to quiet his alleged title to the timber on the eighty-acre tract and to enjoin the county from either asserting any title thereto or interfering with his alleged rights therein. He further asked that if that relief should be denied him he be granted judgment against Fickeisen in the sum of $125, the amount theretofore paid by plaintiff for the timber. Fickeisen was then brought in as a party defendant in the action. Issues were joined by all parties, the cause was tried to the court without a jury, and judgment was entered against the defendant county as prayed for in plaintiff's complaint. The county has appealed.

The first question presented upon the appeal is this: Where land and the timber standing thereon have been assessed together as real property, may the county taxing officers thereafter levy upon, distrain, and sell the unsevered timber as personal property, in satisfaction of the taxes previously levied upon the real property?

In this state, standing timber is, for taxation purposes, considered as real property when the title to both the timber and the land upon which it stands is vested in one and the same ownership. Rem.Rev.Stat. § 11108 [P.C. § 6882-4], so far as pertinent here, reads as follows: 'The term 'real property' for the purposes of taxation shall be held and construed to mean and include the land itself, whether laid out in town lots or otherwise, and all buildings, structures or improvements or other fixtures of whatsoever kind thereon, * * *; and all substances in and under the same; all standing timber growing thereon, except standing timber owned separately from the ownership of the land upon which the same may stand or be growing; * * *.' (Italics ours.)

Rem.Rev.Stat. § 11109 [P.C. § 6882-5], which is corollary to the preceding section, reads in part as follows: 'The term 'personal property' for the purposes of taxation, shall be held and construed to embrace and include, without especially defining and enumerating it, * * *; all standing timber held or owned separately from the ownership of the land on which it may stand; * * *.' (Italics ours.)

The decisions of this state recognize the force and effect of these, or similar antecedent, statutes. In Weyerhaeuser Timber Co. v. Pierce County, 97 Wash. 534, 167 P. 35, 38, this court said: 'Our statutes (Rem.Code, §§ 9095 and 9222-1) permit the separate taxation of standing timber only in case the land and the timber are held in separate ownership.' See, also, France v. Deep River Logging Co., 79 Wash. 336, 140 P. 361, Ann.Cas.1916A, 238, and Elmonte Investment Co. v. Schafer Bros. Logging Co., 192 Wash. 1, 72 P.2d 311.

As shown by the record in this case, the land and timber here involved were both owned at the same time by the Carlisle Lumber Company and were assessed as real property from 1930 to as late at least as 1938, and during that entire period of time there had been no severance of the timber here in question from the land upon which it stood. Since the standing timber constituted real estate, it could not be assessed as personal property, and any attempt to so assess it would be illegal, and any sale looking to the enforcement of such assessment would be null and void. Doe v. Tenino Coal and Iron Co., 43 Wash. 523, 86 P. 938; Turner v. Spokane County, 150 Wash. 524, 273 P. 959.

The general revenue laws of this state provide specific and ample methods for the collection of both real and personal property taxes which have become delinquent. The method provided for collecting such real property taxes is through the issuance of certificates of delinquency and the foreclosure thereof and the method by which delinquent personal property taxes are collected is through distraint proceedings. Each of these two methods is exclusive in its own field. Pierce County v. Merrill, 19 Wash. 175, 52 P. 854; Clizer v. Krauss, 57 Wash. 26, 106 P. 145, 146. In the latter case, this court said: 'There appears to be no statutory method for the enforcement of the collection of taxes upon real property other than by foreclosing the lien thereon in the manner provided by the general revenue laws. This court has heretofore recognized the general rule that, when the statute provides an ample and specific method of enforcing...