Low. v. County Court Of Lincoln County.

• Decision Date: 27 March 1886
• Citation: 27 W.Va. 785
• Court: West Virginia Supreme Court
• Parties: A. A. Low et al. v. County Court of Lincoln County.

27 W.Va. 785

A. A. Low et al.

v.County Court of Lincoln County.

Supreme Court of Appeals of West Virginia.

Submitted February 3, 1886.

Decided March 27, 1886.

1. No appeal lies from a judgment of a county court rendered under sec. 7 chap. 32, of the Acts of 1882, refusing to correct the assessed voluation on land. Such judgment can be reviewed if at all only by certiorari, (p. 786.)

2. An appeal lies under sec. 94 of chap. 161 of the Acts of 1882, from a judgment of a county court refusing to correct an assessment, where it is claimed, that the party assessed with the taxes is not chargeable therewith, (p. 787.)

3. One party may own the surface of the land, and another may own the minerals underlying the surface, (p. 789.)

4. Where one party owns the surface of the land, and another owns the minerals underlying the surface, the taxes may be assessed on the interests in said land to the owners thereof respectively. Sec. 4 of chap 32 of the Acts of 1882, requiring such interests to be so taxed is constitutional, (p, 789.)

E. L. Battrick for plaintiff in error.

Kenna Chilton and J. F. Brown for defendant in error. Johnson, President:

On July 9, 1883, Abel A. Low and others filed in the county court of Lincoln county a petition for the correction of the assessment of taxes on their lands in the said county, on the ground that the proper number of acres were not put in the proper districts of the county, that is, that the lands were not properly apportioned among the said districts, in which they were situated, and also because the valuations were excessive, and because, where the parties owned the minerals merely, they ought not to be taxed therein. They were assessed in one of the districts, where they owned the surface as well as the mines on the lands at $2.00 per acre and in the other two districts the lands wrere assessed at $1.50 per acre; and in all three of the districts, where they owned the mineral interest only, such interest was taxed at $1.00 per acre. Evidence was taken, which is certified, and the court corrected the apportionment ot the lands among the several districts but refused to lower the valuation of the lands, either where they owned both the land and the minerals, or where they owned merely the minerals.

From the judgment of the county court the petitioners appealed to the circuit court; and the circuit court affirmed the decision of the county court. To this judgment of the circuit court the petitioners obtained a writ of error.

Section 7 of ch. 32 of the Acts of 1882, amended and reenacted by sec. 7 of ch. 72 of the Acts of 1883 provides: "Any person feeling himself aggrieved by the assessment of his real estate, made under the provisions ot this act, may within one year after the filing of a copy of such assessment with the clerk of the county court, apply by himself or his agent, to the said court for redress, first giving reasonable notice of his intention to the prosecuting attorney, and stating in such notice the character of the correction he desires. It shall be the duty of the prosecuting attorney upon being so notified to attend to the interests of the State at the trial ot such application. If upon hearing the evidence offered, the county court shall be of opinion, that there is error in the assessment complained of, or that the valuation fixed by the commissioner is excessive, the said court shall make such order correcting the said assessment as is just and proper," &c.

Chapter 32 of the Acts ot 1882 is the chapter which provides for the appointment of commissioners in each district in every county of the State," to re-assess the value of real estate therein." It does not provide for an appeal from the judgment of the county court under sec. 7. Neither is there in any other statute any provision for an appeal from such judgment. If therefore it could be reviewed at all, it could only be by certiorari. (Dryden v. Swinbmn, 15 W. Va. 234. Dryden v. Smith, judge, $c 15 W. Va. 483.) It therefore this application is made under that chapter the circuit court had no jurisdiction of the appeal. The only statute under which an appeal for erroneous assessment ot taxes could be had is sec. 94 of ch. 29 of the Code, as amended by ch. 161 of the Acts of 1882. This section does in terms authorize an appeal from a judgment of the county court rendered thereunder. But that section does not authorize the correction of the assessed value of the lands except errors in the land-books of 1881, as to the value of " any tract or lot as re-assessed in 1875, and not corrected in that year or the year 1876."

But before making any correction ot the latter class the court is required to ascertain the true values of all the lots in the vicinity of that complained of or elsewhere in the district, wherein the land, the assessment of which is complained ot, is situated, so as to equalize the assessment ot the whole, and place each of the tracts or lots at its true value. But it is further declared that " the court shall not in any such ease so change the value of such tracts and lots, as to reduce the aggregate value of the whole of the real estate in such magisterial district, as the same appears on the said land books of 1881." It provides for the correction of " the value, quantity, distance and bearing from the court-house or the local description ot any tract ot land entered in such land-book, as is by mistake or fraud incorrectly entered therein." It also provides for the correction, "if any tract of land entered therein is by mistake or fraud charged with a greater or less amount of taxes and levies than should have been charged thereon; or if any tract or lot of land is entered and charged therein to any person who is not by law chargeable with taxes thereon; or if the person properly chargeable with taxes on any tract or lot entered therein is not so charged, or that there is any mistake in the...