Moss v. Harlan County Board of Supervisors

• Decision Date: 20 June 1924
• Parties: Moss v. Harlan County Board of Supervisors, et al. Commonwealth, by etc. v. Moss.
• Court: Kentucky Court of Appeals

203 Ky. 813

Moss v. Harlan County Board of Supervisors, et al. Commonwealth, by etc. v. Moss.

Court of Appeals of Kentucky.

Decided June 20, 1924.

Appeals from Harlan Circuit Court.

HALL, JONES & LEE and JAS. H. JEFFRIES for Moss.

J. B. CARTER for board of supervisors and the Commonwealth.

OPINION OF THE COURT BY JUDGE THOMAS — Affirming the judgment in the first case and reversing in the second.

The appellant in the first case above, M. J. Moss, owned in fee simple 554 acres of coal land in Harlan county and he listed it for taxation for the year 1921 at $10.00 per acre or $5,540.00. The board of supervisors of the county, pursuant to their jurisdiction under the law, raised the assessment from $5,540.00 to $23,000.00, and appellant prosecuted an appeal therefrom to the Harlan county quarterly court in the manner prescribed by section 4128 of the 1922 edition of Carroll's Statutes, and that court sustained the assessment made by the board of supervisors; whereupon appellant appealed to the Harlan circuit court, which rendered a similar judgment, and from it he prosecutes the first appeal in the caption to this court, and we will refer to it in this opinion as "case one."

The second case in the caption was a proceeding begun in the county court of Harlan county by the Commonwealth through its revenue agent to assess the same tract of land involved in case one for the years 1917, 1918 and 1919, as omitted property. The statement of the revenue agent was afterwards amended in which it was averred that the omitted property which defendant Moss failed to list for taxation with the assessing officer for the years mentioned was not the land or its surface, but was defendant's mineral interest therein, it having been developed by his answer that in 1911 he had leased his tract of land for coal mining purposes to another and that the lessee had transferred the lease to the White Star Coal Company and it was operating upon the land under its lease during those years, and that under the express terms of the lease the operating lessee agreed to pay the taxes (as between lessor and lessee) "on the coal rights and improvements that may be constructed on said boundary of land for the purpose of operating said lease." Following that, the answer averred that, according to defendant's best information and belief, the lessee, White Star Coal Company, in obedience to that provision in the lease contract, had paid the taxes on the mineral rights for the years involved. Appropriate pleadings formed the issues and case one was consolidated with the proceedings by the revenue agent, which we will hereafter refer to as "case two," and after evidence heard the court dismissed case two, from which judgment the Commonwealth appeals. The two appeals have been heard together in this court, and will be disposed of in one opinion.

There were no written pleadings in case one and it was practiced below as though there had never been any separation of mineral rights from the surface rights in the tract of land through the execution of a lease or otherwise; and the evidence heard upon the trial of that case was directed exclusively to the total value of the tract of land involved, including all mineral rights thereunder. The appellant, Moss, having chosen to practice the case in that manner, and to rest his success or...