Conlin v. Metzger, 7217

• Decision Date: 09 November 1950
• Docket Number: No. 7217,7217
• Citation: 77 N.D. 620,44 N.W.2d 617
• Parties: CONLIN v. METZGER et al.
• Court: North Dakota Supreme Court

Page 617

44 N.W.2d 617

77 N.D. 620

CONLIN v. METZGER et al.

No. 7217.

Supreme Court of North Dakota.

Nov. 9, 1950.

Syllabus by the Court.

1. Taxes upon real property are a perpetual, paramount lien thereon against all persons except the United States and this state. Sec. 57-0240, 1943.

2. Title by prescription relates back to the inception of the use.

3. A tax deed vests the grantee with a new and complete title in the land under an independent grant from the sovereign authority relating back to the assessment on which the deed is based.

4. A valid tax deed based on an assessment of land in its entirety extinguishes any easement or servitude attaching to the land subsequent to the assessment.

Eugene A. Burdick, Williston, for p laintiff and appellant.

Walter O. Burk, Williston, for defendants and respondents.

GRIMSON, Judge.

The plaintiff brings this action to quiet title to the North 10 feet of Lots 7 and 8 in Block 7 of the town (now City) of Williston, Williams County, North Dakota. He claims absolute ownership. The defendants claim an easement for the use of said property as a way of access to their adjoining properties. The case was tried in District Court upon a written stipulation of facts.

It appears therefrom that on the 4th. day of May 1938 the County Auditor of Williams County, upon due proceedings for the non-payment of the real estate taxes on said North 10 feet of Lots 7 and 8 for the years 1909 to 1931 inclusive, issued a tax deed to Williams County for said property. Williams County duly sold the said property to the plaintiff on August 27, 1945. The plaintiff also obtained a quitclaim deed from the former owner to fortify his title in case the tax deed should be attacked. However, no attack is made on these tax proceedings and the tax deed is concededly valid.

The stipulation further shows that this property constitutes a strip 10 feet wide across said Lots 7 and 8. The defendants own the adjoining Lots 9 and 10, Block 7, town (now City) of Williston. They and their respective processors in interest and their respective invitees made prescriptive use over, across and upon said strip of land as a way of access to their own adjoining property, 'which said prescriptive use resulted in establishing a common easement of way some time after the year 1909 and prior to the 4th. day of May 1938, which said common easement of way also was appurtenant to their said respective real property as the dominant tenements.' Said prescriptive use has continued to the present time.

The sole question raised upon the trial is whether under the evidence in this case the valid tax deed obtained by Williams County in 1938 destroyed the prescriptive easement for right of way obtained by the defendants. The District Court found for the defendants and plaintiff appeals.

On this question there seem to be two lines of authority. The authorities are collected in an annotation in 168 A.L.R. 529 and it is said that the majority of cases hold that the sale, for taxes, of land which is subject to an easement or servitude or restrictive covenant does not have the effect of extinguishing such easement or servitude.

A study of the authorities leads to the conclusion that the division is based on the question of what is included in the assessment on which the tax title is based. In both lines of authority the question is decided upon the basis of the assessment. Only the interest properly assessed can be sold. Tintic Undine Mining Co. v. Ercanbruck et al., 93 Utah 561, 74 P.2d 1184. In the majority holdings it is pointed out that a tract of land, called the dominant tenement, Sec. 47-0503, NDRC 1943, may have an appurtenance, Sec. 47-0106, NDRC 1943, such as a right of way, over an adjoining tract which becomes a servitude or burden upon that piece of land called the servient tenement. Sec. 47-0504, NDRC 1943. The value of the dominant tenement is increased by having this way of access to it. So the value of the servient tenement is reduced because of the burden of that way upon it. Then it is said that the value to the dominant tenement of the appurtenant right of way is added to the value of the dominant tenement itself by the assessor and included in the total assessment against that dominant tenement. Likewise the assumption is made that the decrease in value of the servient tenement caused by the burden of the right of way across it is deducted from its total value so that only the remaining value of the servient tenement is assessed. Then it is held that the tax lien upon this servient tenement is only on that lessened value and the title conveyed by the tax deed is only for the servient tenement and does not include the easement for right of way across it.

As a reason for such division in the assessment of a tract of land it is argued that if a property right, such as an appurtenant right of way, belonging to and assessed with the dominant tenement, is sold and destroyed by a tax sale of the servient tenement then there would be a taking of property from the owner of the dominant tenement without due process of law. Further it is said the owner of the dominant tenement who pays the taxes on his property including the value of the appurtenant right of way would, in order to protect his easement, also have to pay taxes on the servient tenement although the value of the easement is excluded therefrom. That, it is said, would amount to double taxation. Hays v. Gibbs, 110 Utah 54, 169 P.2d 781, 168 A.L.R. 513; Jackson v. Smith, 153 App.Div. 724, 138 N.Y.S. 654; Tax Lien Co. v. Schultz, 213 N.Y. 9, 106 N.E. 751, L.R.A. 1915D, 1115, Ann.Cas.1916C, 636; Northwestern Improvement Co. v. Lowry, 104 Mont. 289, 66 P.2d 792; Ross v. Franko, 139 Ohio St. 395, 40 N.E.2d 664; City of Longbranch v. Highlands, L. B. & S. B. Co, 134 N.J.Eq. 266, 35 A.2d 22. Alamogordo Imp. Co. v. Prendergast, 43 N.W. 245, 91 P.2d 428; Crawford et al. v. Senosky, 128 Or. 229, 274 P. 306; Tide-Water Pipe Co. v. Bell, 280 Pa. 104, 124 A. 351, 40 A.L.R. 1523, 110 A.L.R. 612; Alamogordo Improv. Co. v. Prendergast, 43 N.M. 245, 91 P.2d 428, 122 A.L.R. 1285; Hayes v. Gibbs, 110 Utah 54, 169 P.2d 781, 168 A.L.R. 529.

On the other hand the minority cases hold that proceedings on the sale of property for nonpayment of taxes are strictly in rem; that an easement is included in the res; that the assessment is made against the land itself as an entirety and not against scattered and divided interests therein; that the purchaser of a tax title gets complete, paramount title from the sovereign state free from easements or burdens. Hill v. Williams, 104 Md. 595, 65 A. 413; Wolfson v. Heins, 149 Fla. 499, 6 So.2d 858; In Hanson v. Carr, 66 Wash. 81, 118 P. 927, 928, it is held that: 'Otherwise the owner of real estate may grant an easement or leasehold and surrender possession of the real estate to such grantee, and, upon foreclosure of the tax lien by the state, the purchaser would acquire only the fee, subject to the easement of lease, which would destroy the priority of the tax lien.'

In Nedderman et al. v. City of Des Moines, et al., (Beck, Intervenor), 221 Iowa 1352, 268 N.W. 36, it is held: 'For purposes of taxation, assessment of land is made against the land itself and not against scattered and divided titles.'

In Harmon v. Gould, 1 Wash.2d 1, 94 P.2d 749, 753, it was held that the foreclosure lof a tax lien being a proceeding in rem vests the purchaser new title, superior to any possessory right however exclusive or adverse. One reason there given is that 'The collection of taxes would be seriously hindered, if a taxing authority be required to examine each tract of land for possible easements based upon prescriptive or other claims not of record, concerning which it might well be exceedingly difficult to obtain information.' See also Tamblin v. Crowley, 99 Wash. 133, 168 P. 982; Magnolia Petroleum Co. v. Moyle, 162 Kan. 133, 175 P.2d 133; City of Jackson v. Ashley, 189 Miss. 818, 199 So. 91.

In many of the cases holding with the majority rule it appears that the easements and servitudes that were held to prevail over tax titles were established against the property prior to the assessment on which the tax title was based. This was pointed out in Hays v. Gibbs, supra. See also Alamogordo Implement Co. v. Hennessee, 40 N.M. 162, 56 P.2d 1127; North Western Improvement Co. v. Lowry, 104 Mont. 289, 66 P.2d 792, 110 A.L.R. 605; Blenis v. Utica Knitting Co., 73 Misc. 61, 130 N.Y.S. 740; Crawford v. Senosky, supra; Union Falls Power Co. v. Marinette Co., 238 Wis. 134, 298 N.W. 598, 134 A.L.R. 958; Tidewater Pipe Co. v. Bell, 280 Pa. 104, 124 A. 351, 40 A.L.R. 1516.

To reach a decision in the case at bar it will be necessary to determine on what assessment ...