Hutchinson v. Kline

• Decision Date: 27 May 1901
• Docket Number: 38
• Citation: 49 A. 312,199 Pa. 564
• Parties: Hutchinson, Appellant, v. Kline
• Court: Pennsylvania Supreme Court

49 A. 312

199 Pa. 564

Hutchinson, Appellant, v. Kline

No. 38

Supreme Court of Pennsylvania

May 27, 1901

Argued May 7, 1901

Appeal, No. 38, Jan. T., 1901, by plaintiffs, from judgment of C.P. Elk Co., Sept. T., 1897, No. 96, on trial by court without a jury in case of Charles H. Hutchinson, Harry G Clay and William Hacker, now by substitution William I Leiper instead of William Hacker, Deceased, Trustees, v. M.S Kline. Affirmed.

Ejectment for land in Jones township.

The case was tried by MAYER, P.J., without a jury.

The opinion of the court was as follows:

This action of ejectment was brought to recover possession of a certain piece of land situate in Jones township, Elk county, containing 2,931 acres, three rods and nine perches, being part of warrant No. 3252 and the western parts of warrants Nos. 3231, 3232 and 3251.

The legal title to the land described in the writ was in the plaintiffs prior to February 13, 1883, and at the time of the bringing of the action of ejectment the legal title to the gas, coal, iron and petroleum was vested in the plaintiffs and would entitle them to recover in this action, unless this title was divested by virtue of a tax sale by the treasurer of Elk county on July 2, 1892, to J. Powell under whom the defendant, M. S. Kline, claims title. The validity of this tax sale so far as the surface of the said tracts of land is concerned, is not disputed, except that it is claimed because of the description of the conveyance by metes and bounds these several tracts compose an entirety and should have been taxed together and not by separate warrants. It is contended by the plaintiffs that the assessments of taxes against these tracts as unseated land should be held to apply only to the surface, which by reason of the reservations in the deeds of conveyance was a separate estate from the mineral rights.

The parties to this suit by agreement filed dispensed with a trial by jury, and it was submitted to the decision of the court under the act of April 22, 1874.

FINDINGS OF FACT.

It was not shown on the trial that these lands were ever assessed in a body, nor is there any evidence to show that the plaintiffs or any one under whom they claim title paid taxes to Elk county upon the mineral rights reserved, nor returned them for the purpose of taxation in one body. This the plaintiffs were required to do by the act of March 28, 1806. If they desired their separate estate to be assessed and taxed separate and apart from the surface, there should have been a severance of this separate estate in the assessment.

But it is claimed that at the time this assessment was made the land was seated and that there was personal property sufficient on the premises to pay the taxes for the years 1890 and 1891.

We have carefully examined the testimony in this case and are of the opinion that the evidence is too vague and indefinite to show that these lands were seated. The assessments from 1884 to 1891 show that Hamlin & Gilpin were assessed for a saw mill and two dwelling houses and barn, but there was no assessment of any land in connection with these improvements, there are no acres designated in the description, simply a saw mill and improvements. Nor does the evidence offered show that this assessment to Hamlin & Gilpin applied to either of the warrants in question. Nor does the evidence show that these taxes in the seated list were paid to the collector, but on the contrary the tax collector of Jones township for the year 1891 was called as a witness, and he testified that he was exonerated from these taxes. Had there been sufficient personal property on the premises at the time the tax collector had his duplicate he would have been able to collect the taxes, and would not have been exonerated from them; and the presumption is that the tax collector did his duty, and that when he returned this tax as uncollectible it was in accordance with the facts. Even if the saw mill was erected upon one of these tracts the preponderance of the evidence shows that the mill and improvements had been abandoned, and after such abandonment the assessment of the land as unseated would constitute a valid assessment: Gibson v. Robbins, 9 Watts, 156; Negley v. Breading, 32 Pa. 325; Stewart v. Trevor, 56 Pa. 374.

The question of whether a tract of land is seated or unseated depends altogether upon what has been, or is being done upon it; upon the appearance which it may present to the eye of the assessor. As was said in Rosenburger v. Schull, 7 Watts, 390, the assessor has nothing to do with the misapprehensions or mistakes of the occupant; it is his business to return the land as seated if he finds upon it such permanent improvements as indicate a personal responsibility for the taxes. On the other hand, if there be no such improvements he must return it as unseated. Neither is it the business of the assessor to inquire what is the nature of the owner's title: Stoetzel v. Jackson, 105 Pa. 567. From the testimony it appears that some logging was going on upon some parts of these lands. It is not shown upon which tract, and the teams were there only a small part of the year in connection with this logging contract, which consisted in taking lumber from a part of one of the tracts to a railroad siding entirely away from these lands. . . .

A glance at the testimony shows that it is too uncertain and indefinite to fix the character of the land as seated. . . .

The further findings of fact will appear in the answers of the court to the requests made by plaintiff's counsel.

In answers to requests the court found as facts:

1. On and prior to February 13, 1883, the legal title to all of the property described in the writ was in the plaintiffs or their predecessors in trust, as trustees.

2. That on February 13, 1883, the then trustees, by deed, conveyed the lands to Byron E. Hamlin and Emory Gilpin with the following reservation, to wit:

"Reserving and excepting therefrom and thereout unto the said parties of the first part, their heirs and assigns, the gas, coal, iron and petroleum therein and thereon, together with the rights of entry at all times for the purpose of exploring for, boring, producing, digging, mining and carrying away the same, and the right to divide or subdivide into parts or parcels at pleasure and transfer the same or any part at will, also the right to occupy so much in the vicinity of any wells that may be bored for the production of petroleum as may be needed for dwellings of employees, and also for the buildings and machinery necessary for carrying on the business of exploring for and producing mineral oil or petroleum from the said tract of land, and also the right to take and use from said land all wood suitable for derricks and also necessary for putting down the said wells; the same to be taken in a careful manner, and without waste, but no timber suitable for merchantable use shall be taken."

3. That Hamlin & Gilpin placed their said deed of February 13, 1883, on record in Elk county, August 6, 1886, and immediately caused the lands described in said deed to be assessed to them to the extent of their interest or ownership in said lands.

4. That Hamlin & Gilpin paid the taxes on these lands till 1890.

5. That the said lands were sold by the treasurer of Elk county upon the unseated list for non-payment of the taxes of 1890 and 1891, as assessed to Hamlin & Gilpin, and purchased by Jerome Powell on July 2, 1892.

The following requests were refused, that the land was seated in fact, or if not, that there was sufficient personal property on said lands liable for and from which the taxes could have been collected.

10. That the defendant, M. S. Kline, who now claims title through conveyance to him of the tax titles by Jerome Powell, the purchaser at the treasurer's sale, which conveyance is dated July 20, 1894, was at that time bound by his covenant with O.B. Lay, dated December 1, 1892, to pay the taxes for the years 1890, 1891 and 1892 and all penalties accrued thereon, and had, in effect, on December 1, 1892, received the money of O.B. Lay to pay the same.

11. That Hamlin & Gilpin by contract with Hyde & Thayer of March 20, 1889, had bound themselves to pay the taxes on the lands for ten years from said March 20, 1889, which contract by its terms was a covenant running with the lands and bound the successors in title of Hamlin & Gilpin; and that the defendant, M. S. Kline, on December 1, 1892, purchased of O. B. Lay, who had succeeded Hamlin and Gilpin in title to the lands described in plaintiffs' writ, and by the terms of his purchase assumed the covenants made by Hamlin & Gilpin with Hyde & Thayer for the payment of the taxes, which covenant bound him to pay all the taxes for ten years from the Hyde & Thayer contract, and which covenant on the part of M. S. Kline was in force at the time he took conveyance of the tax title from Jerome Powell and by the terms of which he was legally bound to pay the taxes of 1890 and 1891, for which the lands had been sold, and under which sale the defendant now claims title.

12. That the assessors of Jones Township, Elk County, in making the assessments for the years 1890 and 1891 of the lands described in the writ, knew at the time of making such assessments that the gas, coal, iron and petroleum in said lands had been severed into a separate estate, and were not then owned by Hamlin & Gilpin, and were not valued in the assessment to them.

CONCLUSIONS OF LAW.

By the act of March 8, 1806, it is made the duty of the holder of lands to give the commissioners a description of the unseated lands held by him: Williston v. Colkett, 9 Pa. 38. And when the mineral rights were severed from the surface rights the plaintiffs should have given...