Board of Commissioners of the County of Greene v. Lattas Creek Coal Company
| Decision Date | 31 January 1913 |
| Docket Number | 22,336 |
| Citation | 100 N.E. 561,179 Ind. 212 |
| Parties | Board of Commissioners of the County of Greene v. Lattas Creek Coal Company |
| Court | Indiana Supreme Court |
From Greene Circuit Court; Orion B. Harris, Special Judge.
Action by the Lattas Creek Coal Company against the Board of Commissioners of the County of Greene. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under § 1394 subd. 2, Burns 1908, Acts 1901 p. 565.)
Reversed.
A. M Beasley, Claude E. Gregg, Hunt & Gambill, Thomas M. Honan Attorney-General, James E. McCullough, Edwin Corr, Thomas H Branaman, Omer S. Jackson and Samuel Royse, for appellant.
Sydney B. Davis and George M. Davis, for appellee.
George M. Crane, Amicus Curiae.
The facts in this case, as disclosed by a special finding, are, that in 1902, appellee, a corporation, received a conveyance of "all the coal and other minerals" underlying a certain tract of real estate, consisting of 840 acres. No coal or other minerals was ever mined from said tract. In 1903, the township assessor, assessed such "coal and other minerals" for taxation, at the value of $ 10,080. The assessment was placed on the tax duplicate, and the treasurer collected from appellee the taxes levied thereon, amounting to $ 301.32. This was paid under protest. In a suit by appellee to recover the same, judgment was rendered for appellee. From such judgment this appeal is prosecuted. The trial court stated as one of its conclusions of law that the coal and other minerals assessed were not subject to taxation. Appellant excepted to this conclusion, and error is here assigned on such ruling.
Appellant contends that the coal and other minerals, conveyed by deed to appellee, while retaining their natural position constitute land, which is taxable against the owner, without regard to § 10259 Burns 1908, Acts 1891 p. 199 § 97; and also, that with such section properly construed, it is assessable under the provisions thereof. Appellee contends that unless the legislature shall have designated property for taxation and provided methods and regulations for fixing values thereof, the same is not taxable.
That coal, or other mineral, in place, may be granted and conveyed as land, separate and apart from that which underlies or overlies it, is no longer disputed. The owner in fee may, by deed, create as many freeholds beneath the surface as he can properly designate. For purposes of separate ownership land may be divided horizontally as well as vertically. Knight v. Indiana Coal, etc., Co. (1874), 47 Ind. 105, 110, 17 Am. Rep. 692, and cases cited; 20 Am. and Eng. Ency. Law (2d ed.) 771; Hartwell v. Camman (1854), 10 N.J. Eq. 128, 64 Am. Dec. 448; Hosack v. Crill (1902), 204 Pa. 97, 53 A. 640; Stewart v. Commonwealth (1893), 94 Ky. 595, 23 S.W. 367; Low v. County Court, etc. (1886), 27 W.Va. 785; Consolidated Coal Co. v. Baker (1891), 135 Ill. 545, 26 N.E. 651, 12 L. R. A. 247; Ames v. Ames (1896), 160 Ill. 599, 43 N.E. 592; Barnes v. Mawson (1813), 1 M. & S. 77; Wolfe County v. Beckett (1907), 127 Ky. 252, 105 S.W. 447, 32 Ky. Law 167, 17 L. R. A. (N. S.) 688, and case note. Different parties may own, in severalty, different stories of a building. Anderson School Tp. v. Milroy Lodge, etc. (1891), 130 Ind. 108, 29 N.E. 411, 30 Am. St. 206; Graciosa Oil Co. v. Santa Barbara County (1909), 155 Cal. 140, 99 P. 483, 20 L. R. A. (N. S.) 211. Our Constitution provides that "The General Assembly shall provide, by law, for a uniform and equal rate of assessment and taxation and shall prescribe such regulations as shall secure a just valuation for taxation of all property." Constitution, Art. 10, § 1.
The general assembly has enacted various statutes for the assessment and taxation of property, among which are the following: "All property within the jurisdiction of this state, not expressly exempted, shall be subject to taxation." § 10142 Burns 1908, Acts 1891 p. 199, § 3. "For the purpose of taxation, real property shall include all lands within the state and all buildings and fixtures thereon and appurtenances thereto" * * *. § 10143 Burns 1908, Acts 1891 p. 199, § 4. Section 10256 Burns 1908, Acts 1891 p. 199, § 95, provides as follows: Section 10257 Burns 1908, Acts 1897 p. 121, provides that real estate occupied by railroads or public highways shall not be assessed for taxation against the adjacent property holder. Section 10259, supra, provides that in valuing any real property on which there is a mine or quarry, the same, if the land and the mine or quarry are owned by the same person, shall be valued at such price as such property including the mine or quarry, would sell for, and where the mine or quarry is owned by a person other than the owner of the surface, the "land", and mine or quarry, shall be separately valued and assessed to the respective owners.
It is contended by appellee that coal, or other mineral, in place, is not subject to taxation, unless the legislature not only shall have designated such property as taxable but also have provided sufficient methods and regulations for fixing the values thereof. The legislature, pursuant to constitutional authority has declared that all lands within the State are subject to taxation, and as coal or other mineral, in place, is land, it is sufficiently designated by statute, as taxable. It is contended that § 10259, supra, has no application here, because there is no mine or quarry on the property; that § 10256, supra, prescribes methods for fixing values which apply only to land surfaces, and cannot be considered with reference to fixing the value of coal or other minerals hidden beneath the surface; that the methods and regulations for the valuation of surface real estate, with no method or regulation for valuation for land beneath the surface evinces the legislative intent, not to tax such land, under the maxim of expressio unius est exclusio alterius.
It may be conceded that § 10259, supra, is not applicable here because there is no mine or quarry on the premises. It may also be conceded that so much of § 10256, supra, as requires the assessor to take into consideration the fertility of the soil and the vicinity of the same to macadamized and clay roads, and turnpikes, etc concern only the fixing of the surface value of lands, as distinguished from that of underlying mineral. But it by no means follows that because the legislature requires assessors to take into consideration the matters enumerated, all others are excluded, even in fixing surface values. The statute demands of assessors that lands shall be valued at their true cash value, and as a means of ascertaining the same, requires them to take certain things into consideration; some of these things, such as the location of navigable rivers and canals are from their nature, of only local application. That the statute contemplates that assessors, in fixing the true cash value of land, shall be limited to a consideration of the matters therein set forth, involves the imputation to the legislature of an unreasonable intent, for it would preclude the assessor from considering the most important factor in...
To continue reading
Request your trial