Carter v. Tyler County Court
| Decision Date | 25 January 1899 |
| Citation | 45 W.Va. 806 |
| Parties | Carter v. Tyler County Court |
| Court | West Virginia Supreme Court |
Where a party holds a lease upon land for oil and gas purposes, upon the usual terms and conditions, paying one-eighth of the oil produced as royalty, the oil while it remains in situ must be regarded as realty, and as remaining the property of the lessor unt'.l brought to the surface, (p. 810).
The prospective production of oil from such well cannot be properly charged to the lessee, on the personal property books of the county. (p. 811).
Under chapter 29 of the Code, which provides for the assessment of taxes, the words "personal property," as therein used, shall include all fixtures attached to the land, if not included in the valuation of such land entered in the proper land book, (p. 808).
Error to Circuit Court, Tyler County.
Application of John J. Carter to the county court of Tvler County for relief against erroneous assessment. From the judgment, petitioner brings error.
Modified.
John H. McCoy and Robert McEldowney, for plaintiff in error.
Anthony Smith, for defendant in error.
John J. Carter gave notice to the prosecuting attorney of Tyler County that on the 17th day of January, 1894, he would apply to the county court of said county, under sections 94, 95, 96, and 97 of chapter 29 of the Code, for relief against an erroneous assessment on the personal property books of said county, in which he claimed he was erroneously charged with oil at a valuation of eighty-one thousand dollars, ninety oil wells, and that he would introduce evidence of such charge, and move said county court to enter an order granting him relief from such erroneous assessment. In pursuance of said notice, Cartel' presented his petition, specifying therein that he was assessed with ninety oil wells, at a valuation of eighty-one thousand dollars, and with seventy-two thousand dollars as the value of the capital used by him in his business, also setting forth therein the reasons why said assessments were illegal and erroneous. The prosecuting attorney objected to the consideration of so much of the applicant's petition as referred to the assessment of the item of seventy-two thousand dollars, value of machinery, etc., as stated, in column eighteen of said personal property book, upon the ground that no notice of the intention of said petitioner had been given him that he would ask the court to be released from the payment of taxes upon said item, to which objection the petitioner replied generally. As to this objection the record shows that due notice of the said petition was given the prosecuting attorney, and that he appeared on behalf of the State, and objected to the consideration by the court of so much of the applicants petition as refers to the assessment of the item of seventy-two thousand dollars, value of machinery, etc, as stated in column eighteen, and agreed that the said petition be continued until the 6th of February, 1894, which had the effect of waiving the notice required by statute, the only object of which being that the interest of the State, county, and district might be represented in the matter. Now, it appears that the sum of seventy-two thousand dollars was assessed upon the engines, boilers, rigs, and appurtenances, such as casing, etc., belonging to the ninety wells in the proceedings mentioned. This machinery and the appliances connected therewith were in use by the petitioner, Carter, in the production of oil from the wells he had leased; and, in determining whether this property was properly placed upon the personal property books of said county, we must determine whether they should be classed as realty or personalty.
I am not unaware of the diversity of opinion expressed by text writers, and the almost irreconcilable conflict of decisions by the different courts, which would necessarily be encountered in investigating the question as to when machinery and appliances used by tenants in the prosecution of the various industries and mining operations upon the lands of their lessors are to be considered personalty, and when realty; but we are spared the labor and perplexity attending this investigation by our statute, which provides (Code, c. 29, s. 46) that the "words 'personal property' as used in this chapter shall include all fixtures attached to land, if not included in the valuation of such land entered in the proper land book." The machinery and appliances about these ninety oil wells appear to have been assessed to the petitioner, Carter, at eight hundred dollars each, or seventy-two thousand dollars for the whole. The question as to whether such assessment was excessive or not was a question of fact, which was passed upon by the county court after hearing testimony in behalf of both parties, the court finding that the property was not excessively valued for taxation. The evidence was certified and the case appealed to the circuit court, and the finding of the county court was affirmed by that court; and, while there may be some slight conflict in the testimony as to the valuation of the property, this Court would not undertake to disturb the finding of the county court, or to place a proper assessment of valuation on said property, especially when the county court was confronted with the witnesses and heard their testimony. The ruling of the county court and the circuit court, therefore, as to this property being properly placed on the personal property book, and the assessment not being excessive as applied to the machinery and appliances is affirmed.
The prosecuting attorney also objected to the consideration of an affidavit presented with said petition, made by one S. Gr. Pyle. who stated therein that in the spring of 1893 he assisted J. K. Smith, assessor of Tyler County, W. Va., in making out: said assessor's books, and extending levy on same, and that it was his information that the...
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