Pine County v. Tozer, s. 8420, 8421, 8433.

• Decision Date: 25 January 1894
• Docket Number: Nos. 8420, 8421, 8433.,s. 8420, 8421, 8433.
• Citation: 56 Minn. 288
• Parties: PINE COUNTY <I>vs.</I> DAVID TOZER <I>et al.</I>
• Court: Minnesota Supreme Court

Page 288

56 Minn. 288

PINE COUNTYvs.

DAVID TOZER et al.

Nos. 8420, 8421, 8433.

Supreme Court of Minnesota.

Argued December 15, 1893.

Affirmed January 25, 1894.

Statement certified, under 1878 G. S. ch. 11, § 80, from the District Court of Pine County, F. M. Crosby, J., and made September 5, 1893, in a proceeding to enforce payment of delinquent taxes of 1887, levied upon the right and interest of David Tozer in the standing pine timber on certain lands in Pine County.

Also a like statement certified from the same court at the same term in a proceeding to enforce payment of delinquent taxes of 1887 levied upon the right and interest of Empire Lumber Company, a corporation, in the standing pine timber on certain other lands in that county.

Also a like statement certified from the same court at the same time in a proceeding to enforce payment of delinquent taxes of 1887 levied upon the right and interest of Durant, Wheeler & Co. and David Tozer jointly in the standing pine timber on certain other lands in that county.

By certain acts of the Federal Congress approved May 5, 1864, 13 U. S. Stat. ch. 79, p. 64, and July 13, 1866, 14 U. S. Stat. ch. 178, p. 93, there was granted to Minnesota every alternate section of the public lands designated by odd numbers to the amount of ten sections per mile for the purpose of aiding in the construction of a railroad from St. Paul to Duluth. These lands were granted by the state to the Lake Superior and Mississippi Railroad Company and were by it mortgaged and by foreclosure transferred to the St. Paul and Duluth Railroad Company. By Sp. Laws 1865, chapters 2 and 8, the company was required to pay into the state treasury three per cent of its gross earnings in lieu and in full of all taxation and assessment upon its railroad, lands and other property, including the Federal grant so long as the lands remained unsold. These provisions were duly accepted and became a contract. Const., Art. 4, § 32.

By Laws 1887, ch. 128, § 1, it was enacted that whenever any railroad company to which lands have been granted has sold, assigned, transferred or disposed of any estate, right, title or interest therein or thereto, the right, title, estate or interest of such purchaser, assignee or holder by whatsoever mode or in whatever form such sale, transfer or assignment is made, shall become and be taxable and shall be assessed as other real property in this state; and the taxes on such right, title, interest or estate shall be collected and enforced as taxes on other real property; and the purchaser at any such tax sale of such right, title, interest or estate shall acquire, take, hold or be subrogated to all the right, title, interest or estate of the person holding the same under or from the railroad company, and said purchaser at said sale shall have the right to do any and every act or thing which the said person holding such right, title, interest or estate under such railroad company might, could or should do or have done in order to be entitled to a perfect title or deed of such lands; and on performance the purchaser at such tax sale shall be entitled to a deed of such lands from the railroad company holding the legal title thereto; provided, always, that the right of redemption from such tax sale shall exist as in other cases of the purchase of real property at tax sales.

The St. Paul and Duluth Railroad Company made contracts with David Tozer, Empire Lumber Company and with Durant, Wheeler & Co. and David Tozer, selling to the three parties severally the right to cut and remove the standing pine timber on portions of the land received by it under the congressional grant. The pertinent terms of these contracts are stated in the opinion of the court. In the years 1887 and 1888 proceedings were taken by the officers of Pine County to tax the rights acquired by the purchasers under these contracts. The taxes so levied were not paid and became delinquent and application was made to the District Court for judgment, pursuant to 1878 G. S. ch. 11. The parties appeared and answered. No objection was made to the form of the proceedings but the purchasers contended that their rights to cut the standing pine trees was not an estate or interest in the land but a mere easement not taxable and that the payment of the three per cent of its gross earnings by the St. Paul and Duluth Railroad Company covered all lawful taxation upon the lands and the timber growing thereon and upon the stumpage permits. The trial court overruled the objections and gave judgments for the taxes. At the request of the judgment debtors the court made statements of the facts and certified the same to this court.

Lloyd W. Bowers, Warner Richardson & Lawrence, and Lusk Bunn & Hadley, for the tax judgment debtors.

Robert C. Saunders, Henry W. Childs and George B. Edgerton, in support of the tax judgments.

COLLINS, J.

These were proceedings to enforce the collection of taxes assessed and levied for the year 1887, in conformity with the provisions of Laws 1887, ch. 128, upon certain rights, interests, and an estate held and owned by various parties, in and to a number of tracts of land situated in Pine county. These lands were a part of those granted to the St. Paul & Duluth Railway Company in aid of construction, and at the time of the assessment and levy the naked title thereto remained in such company. It was conceded by the state in these proceedings that by reason of the substituted method of taxation provided for by Sp. Laws 1865, ch. 8, the interest and estate of the company in these lands, whatever it might be, could not be assessed or taxed; but the court below held that, because of certain timber contracts which the railroad company had entered into with appellants Durant, Wheeler & Co., David Tozer, and the Empire Lumber Company, certain rights, interest, and estate had been acquired by the latter in and to the lands, which rights, interest, and estate were taxable. The objections interposed by the three parties last named were overruled, and thereupon, as provided by the statute, the questions involved were certified up for the decision of this court.

In one of these contracts with Durant, Wheeler & Co. and David Tozer, of date January 11, 1881, the railway company granted, bargained, sold, and transferred all of the pine timber, fit for merchantable sawlogs, standing, growing, or being upon certain lands, particularly described, with the right, privilege, and permission to enter upon said lands and cut and remove said timber at any time previous to the 1st day of May, 1899, (a period of more than 18 years,) and when so cut and removed, and upon due payment of the notes hereinafter mentioned, to control, own, and possess said timber. It was agreed that all logs cut on the lands should be banked separately from other logs, and there was an attempt, perhaps,...