Big Creek Coal Co. v. Tanner

• Decision Date: 08 June 1922
• Docket Number: No. 14461.,14461.
• Citation: Big Creek Coal Co. v. Tanner, 303 Ill. 297, 135 N.E. 433 (Ill. 1922)
• Parties: BIG CREEK COAL CO. v. TANNER, County Clerk.
• Court: Illinois Supreme Court

303 Ill. 297

135 N.E. 433

BIG CREEK COAL CO.

v.TANNER, County Clerk.

No. 14461.

Supreme Court of Illinois.

April 19, 1922.

Rehearing Denied June 8, 1922.

Error to Circuit Court, Fulton County; George C. Hellyer, Judge.

Suit by the Big Creek Coal Company to enjoin Clarence H. Tanner, County Clerk, from extending the tax on an assessment. From a decree enjoining the extension, defendant brings error.

Reversed and remanded, with directions.

Floyd F. Putman, State's Atty., of Canton, for plaintiff in error.

Burnett M. Chiperfield and Claude E. Chiperfield, both of Canton, for defendant in error.

DUNN, J.

The board of review of Fulton county assessed against the Big Creek Coal Company for taxation coal rights in several tracts of land aggregating 488 acres, at $14,640, full value, being $30 an acre. The company filed a bill in the circuit court against the county clerk to enjoin him from extending the tax upon this assessment. He demurred to the bill, and the court, having overruled his demurrer, elected to stand by it, whereupon the court rendered a decree enjoining the extension of the tax, and he sued out a writ of error.

The bill alleged that the Big Creek Coal Company is an Illinois corporation engaged in the business of mining and selling coal; that the board of review, after its organization in 1919, notified the company to appear before the board and show cause why certain real estate containing coal in place in the ground which had been severed from the surface overlying the same by conveyance to the company should not be listed for assessment and taxation; that the company appeared and informed the board of review that it did not possess, own, or control any real estate containing coal in place in the ground which had been severed from the surface by conveyance to it, but that such coal in place in the ground was owned in fee simple by the owners of the surface over it; that the company's only right to mine and remove coal on the tracts of land in controversy was wholly contingent and dependent upon its paying to the owners of the coal, after its severance and removal, a certain sum per ton as rent and royalty for each ton of coal removed, and that the company had not acquired title to and did not own or control the coal in place in the ground. The company produced and exhibited to the board of review the leases under which it was engaged in mining and removing coal from the real estate in question, but the board, after hearing the testimony, ordered the coal rights to be assessed. The bill set out five leases of separate tracts by different grantors under which the company was mining coal in the respective tracts. There is no substantial difference in the leases material to this controversy. They grant, lease, and demise, two for the term of 25 years and three for the term of 50 years from the dates of the respective leases, the right to mine, take out, and remove coal from or under the premises mentioned; the free and exclusive right to make underground roadways and passages through the premises connecting with other premises adjacent; the free, exclusive and perpetual right to use such underground passages and entries for mining purposes and in removing and conveying coal from the premises described in the instrument, or from any other premises adjacent thereto, to the mouth or mouths of the mines used in connection therewith; the right to prospect to ascertain the depth, character, and extent of the coal deposits, and to use so much of the surface as necessary for the economicaland profitable operation of mining, doing no unnecessary damage. The covenants on the part of the company required that an account should be kept of all the coal mined; that a monthly statement should be made to the grantor on or before the 20th day of each month of the number of tons mined in the preceding calendar month, and that payment should be made on the 1st day of the month succeeding each statement for all coal excavated, mined and removed, at the rate of three cents a ton of 2,000 pounds, mine run. Each lease provided for a guaranteed minimum monthly rental, to begin shortly after the execution of the lease, and further provided that payments made under the guaranty unearned on account of coal mined should be deducted from the rent or royalty subsequently accruing in excess of such minimum rental. As to one tract the bill did not set out any title in the company, but averred that on April 1, 1919, it did not own any right, title or interest in the premises, that on that date the coal underlying the premises had been mined out and removed, and that there did not remain any coal in the ground subject to the payment of taxes.

The only question to be determined is: Had the defendant in error an interest which was subject to assessment in the tracts of land in controversy? The demurrer admits the averments of fact in the bill, but not the conclusions of the pleader. The averments...