State v. Downman

• Citation: 134 S.W. 787
• Court: Court of Appeals of Texas
• Decision Date: 18 January 1911
• Parties: STATE v. DOWNMAN.<SMALL><SUP>†</SUP></SMALL>

134 S.W. 787

STATE v. DOWNMAN.^†

Court of Civil Appeals of Texas.

January 18, 1911.

Rehearing Denied February 22, 1911.

Appeal from District Court, Llano County; Clarence Martin, Judge.

Action by the State against R. H. Downman to recover taxes. Judgment for defendant, and the State appeals. Reversed and rendered.

Knight Stith, Slator & Oatman, Jewell P. Lightfoot, Atty. Gen., and R. E. Crawford, Asst. Atty. Gen., for the State. Gregory, Batts & Brooks, for appellee.

RICE, J.

Prior to the 1st day of January, 1907, appellee Downman had purchased from various persons, as shown by their deeds in evidence, certain interests in and to the minerals, ores, rocks, etc., contained in the lands therein described, and popularly known as "mineral rights." The language employed in the habendum clauses of all said conveyances, except 6, was as follows: "Have granted, sold and conveyed, and by these presents do grant, sell and convey, unto the said R. H. Downman all metals, ores, granites, rocks, stones and other minerals, metallic and nonmetallic, organic and inorganic, in place or severed from the earth, which might or could be worked for profit by underground excavations or open workings, or both, and the byproducts of and all such ores and substances, now known to be or hereafter found to be in or upon the hereinafter described lands, together with the right to enter upon the same and search, dig and explore for such things and substances; and the right to use and appropriate so much of the surface of said lands, as may be required," etc. And the other six conveyances conveyed, without any restriction, the mineral rights in the lands therein described. Appellee did not render for taxation for said year any interest whatever in said several tracts of land, and the taxes due thereon for said year became delinquent.

On the 12th of June next thereafter, the commissioners' court of Llano county passed and entered upon its minutes the following order, viz.: "In accordance with the advice and instructions of the Comptroller of the State of Texas, it is considered and ordered by the court that the assessor of taxes of Llano county be and is hereby directed to assess for taxes all minerals and mineral rights in and upon and attaching to any and all land in Llano county, where it is found that said minerals and mineral rights are owned by a different person from the owner or owners of the surface estate in and to all such lands, and that said minerals and mineral rights so held and owned be assessed for taxes independent of the surface estate." By virtue of said order the assessor of taxes for said county assessed and listed for taxes against appellee the mineral rights so conveyed to him, as set forth in said conveyances; and thereafter presented said respective assessments to the commissioners' court for their approval, which were accordingly accepted and approved by said court; and the assessor was by them directed to place said assessments upon the delinquent tax roll, which was accordingly done by him. Thereafter, the collector of taxes for said county, in accordance with the provisions of the act of the Twenty-Fifth Legislature, passed at the regular session thereof (chapter 103, p. 132 et seq.), made on the 31st day of March, 1908, a triplicate list of said lands upon which the state and county taxes for the preceding year remained unpaid, charging against the same all taxes and penalties assessed against the owner thereof, and presented the same to the commissioners' court of said county for examination and correction; and said court, upon examination, approved the same, and the collector, in accordance with said act, filed one copy with the county clerk of said county, retained one copy thereof, and forwarded the other to the Comptroller with his annual settlement report, which said corrected list was advertised and published, as required by law, and this suit was thereafter, on the 6th day of March, 1909, duly filed in the district court of Llano county in the name of the state by the county attorney against appellee, to enforce the collection of said taxes, interest, penalty, and costs, as well as for foreclosure of plaintiff's lien on said minerals and mineral rights of appellee in and to each tract described in its petition.

After a general demurrer and general denial, appellee, as shown by appellant's brief, specially answered, denying that he had any interest in certain of the lands described in plaintiff's petition; admitting, however, as to certain others, that he held an undivided interest, and asserting that as to all the others he had only purchased the right, privilege, or license to enter thereon and to prospect for and develop, mine and sell as his own, such minerals and mineral substances as he might discover therein by prospecting, and which could be worked for profit by underground excavations or open workings or both. He likewise denied that there were any developed mines existing upon any of said tracts of land, either now or at the time of the execution of said conveyances; and also denied that there were any minerals thereon capable of being developed or sold for a profit, and alleged that his purpose and intention in acquiring said license or privilege was merely to secure the right to prospect said land for such mineral substances as might be mined and sold for a profit; that he had not as yet prospected any of said lands, and had never examined many of said tracts; that the same were not different in character from the average lands of Llano county; that the lands in Llano and adjoining counties are supposed to contain valuable minerals, but no discoveries have as yet been made of mines or deposits capable of being worked at a profit. Defendant further alleged that prior to the tax assessment made against his interest in said lands, if any, that the respective owners in fee of each of said tracts of land mentioned in plaintiff's petition, had rendered them for all purposes of state, county, and district taxes, which renditions had been accepted by the proper tax officers, and that all taxes due thereon had been charged on the tax rolls against said lands to the persons who so rendered them for taxation, and all taxes due thereon were subsequently paid by the owners; that after said lands had been rendered by their respective owners for the year 1907, and said renditions had been accepted and entered of record, and after said assessments had been reported by the assessor to the commissioners' court to be equalized, said court did, by order of July 12, 1907, as hereinbefore set out, direct the assessor to assess for taxes all minerals and mineral rights in and upon or attached to any and all lands of Llano county, where said minerals or mineral rights were owned by persons different from the owner of the surface estate; and that said minerals and mineral rights should be assessed for taxes independent of the surface estate; that the tax assessor, in pursuance of said order and upon no other authority, thereupon entered and made the tax assessments upon which plaintiff's suit was predicated; that in making said entries he wrote upon the assessment records nothing to indicate that taxes were intended to be thereby assessed against any other or different interest in said land for the year 1907 than the entire fee simple and absolute title in same; that having entered said rendition, the tax assessor thereupon reported the same to the commissioners' court; that said court, without hearing any evidence to show that said lands contained any minerals, or that the values were in any respect enhanced by the presence of minerals, and without any such evidence having been heard by the assessor, approved said assessments, and ordered same to be entered on the tax rolls. That in pursuance of said order, said assessments were entered upon the unrendered rolls of said county; that at the head of said assessments were written the words "mineral rights only," and that the roll made up in the manner alleged constituted the sole basis for the claims against defendant in the plaintiff's petition; that in assessing said minerals and mineral rights in the lands mentioned in plaintiff's petition, no reduction in the valuation at which said lands had been assessed against the holders or owners of the fee-simple title was made; that in assessing all other lands of the county for said year, in respect to which no mineral rights had been granted by the owners of the fee-simple title, the officers valued the same at the same figures as the lands mentioned in the plaintiff's petition; that said other lands are of the same character as those mentioned in said petition; that the same reasons exist for supposing that said other lands contained minerals as existed for supposing that the lands mentioned in plaintiff's petition contained minerals, and that by reason of such system of valuation the lands on which mineral privileges are retained by the owners of the fee were valued at a different and lower rate, for the purposes of taxation, than the other and similar lands in which the mineral privileges had been conveyed to others other than the owners of the fee; that for said reasons said tax assessments of said county for said year are unequal, not uniform, arbitrarily and systematically discriminatory against the defendant, and all other persons who have mineral privileges in lands of others in said county. The case was tried by the court without a jury, and judgment rendered in behalf of the defendant, from which this appeal is taken.

It was submitted to the court upon an agreed statement. There is also in the record a statement of facts, and, at the instance of appellant, the court filed its findings of fact and conclusions of law, wherein, after finding that defendant owned no interest whatever in certain of said tracts on January 1, 1907, by reason of previous sales, and for other reasons, and as to certain...