Telonis v. Staley
| Decision Date | 15 August 1940 |
| Docket Number | 6168 |
| Citation | 104 Utah 505,106 P.2d 163 |
| Court | Utah Supreme Court |
| Parties | TELONIS v. STALEY et al |
Appeal from Seventh District Court, Carbon County; George Christenson, Judge.
Action to quiet title by George Telonis against John C. Staley and others. The defendants filed a counterclaim. From the judgment, the plaintiff appeals.
Affirmed.
H. G Metos and Allen T. Sanford, both of Salt Lake City, for appellant.
O. K Clay, of Tooele, and F. W. Keller and Henry Ruggeri, both of Price, for respondents.
Plaintiff appeals from a judgment and decree of the District Court of Carbon County quieting defendant's title to the surface rights of certain coal mining property. In 1932 the Union Pacific Coal Company was the owner of the property in Carbon County involved in this action. The State Tax Commission in that year assessed the values of the real estate, separately evaluating for tax purposes the surface right of the land and the mineral or coal rights, and certified the same to Carbon County. These values were spread upon the county tax records and all proceedings relative to the levy of taxes were carried out pursuant to law. The Company failed to pay the taxes, and after advertisement for delinquency the property was on January 10, 1933, sold for taxes to Carbon County. Record of the sales was duly noted in the Treasurer's office and a tax sale certificate was filed with the County Recorder. No redemption being made the County Auditor on January 12, 1937, issued to the County auditor's tax deeds. The property was duly advertised and offered for sale at the May sale, but there were no bidders. On June 18, 1937, the County at private sale, for a consideration of $ 2,000 sold and conveyed to defendants, Staley and Sillitoe, the surface rights to the property. In December 1937 Staley and Sillitoe mortgaged said surface rights to defendant Carbon-Emery Bank for $ 4,000. On January 11, 1938, the Union Pacific Coal Company for a consideration of $ 200 quit claimed the real estate to plaintiff, who on February 2, 1938 commenced this action by filing complaint in the simplest form to quiet his title. By both answer and counterclaim defendants asserted title in Staley and Sillitoe by virtue of the tax sale proceeding above noted. Plaintiff by reply joined issue. The cause was tried largely upon record and documentary evidence, and there is no material dispute in the facts. The result depends upon the validity of defendants' tax title. Plaintiff assails the same on four grounds, to wit:
(1) Being mining property, the mineral and surface rights were separately assessed, and should have been separately sold.
(2) The certificate of sale is void because: (a) It does not show the year for which the taxes were unpaid; (b) It recites that the property was assessed, inter alia, for city and city school taxes, when in fact the property is not within any city.
(3) The auditor's tax deed is void because it contains recitals that the certificate of sale shows (a) the year for which the taxes were unpaid, when in fact the certificate does not so show, (b) that the property was assessed for city and city school purposes when in fact it was not in any city, and (c) that the assessment roll was not verified by the auditor as required by Sec. 80-8-7, R. S. U. 1933.
(4) The foregoing voids defendants' title and therefore plaintiff's title should have been quieted. We note them seriatim.
(1) The statutes in effect at the time of the assessment, levy, and sale here involved were Sections 5864, 5873, 5928, 5929 and 5932, Comp. Laws 1917, Chapter 53, Laws of Utah 1931, and Chapter 139, Laws of Utah 1921. Section 5864 as far as pertinent here provides:
Section 5873, as far as pertinent here, provides:
"* * * mines and mining claims and other valuable deposits including lands containing coal or hydrocarbons including non-metalliferous minerals underlying land the surface of which is owned by a person other than the owner of such minerals, and all machinery used in mining and all property or surface improvements upon or appurtenant to mines or mining claims and the value of any surface use made of non-metalliferous mining claims or mining property for other than mining purposes, must be assessed by the tax commission as hereinafter provided."
Section 5928 declares the assessments made by the Tax Commission to be the only basis of taxation of such property. Section 5929 requires the owner of every coal mining claim or lands containing coal to file yearly with the Tax Commission a detailed statement of all such lands owned by him, by government survey, giving the full value of each claim or legal subdivision of 40 acres, including a detailed list of all tools and machinery, etc., with full value of each separate article, all buildings or improvements upon or appurtenant to such lands; the value of each building or improvement separately stated; and such part of the surface as has independent use, and the value thereof for such use. And then Section 6018, Chapter 139, Laws of Utah 1921, providing for delinquent sales, declares inter alia the treasurer shall sell to the county all real estate upon which taxes are delinquent and make a record thereof in his office, describing the several parcels of real property as he sold them, "stating the aggregate amount of taxes due on the property therein enumerated, provided that taxes levied only on a certain kind or class of property for a special purpose shall be separately set out." Section 6020, Laws of Utah 1921, provides that the certificate of sale shall state "the aggregate amount of taxes due on said property in one column provided that the [special taxes set out (in Section 6018)] shall be separately set out." It seems clear therefore that the taxes on all interests of the owner are to be stated only in the aggregate, except the special purpose taxes indicated, in accordance with the rule that enumeration of special ones excludes all others. Under our statutes covering general property taxes, improvements are separately valued and assessed, but lumped in the aggregate and sold with the realty for nonpayment of tax, as is also personal property attached to the realty of the owner for tax purposes. As shown above, not only improvements of coal mining lands but all improvements located on other lands and used exclusively in connection with the coal lands are made appurtenant to the coal lands, and the mine sold for such taxes if delinquent.
Plaintiff argues that because the statute calls for a separate valuation or assessment of coal and surface rights, each became a distinct tax entity. By that test improvements should likewise be separately taxed and sold. He further argues that the owners should have the right to pay the tax on either, or redeem either. He might make the same argument with respect to improvements. The fact is that he did not offer to pay the taxes on either nor offer to redeem either, and does not now seek or desire to do so. Had he come in and offered to redeem the surface rights in time, the County might have permitted him to do so. Not having offered, and not now offering to do so, he can hardly complain that he might have deserved this privilege in the past. Deseret Irrig. v. Bishop , 92 Utah 220, 67 P.2d 210. But he permitted the time of redemption to pass, permitted his title to slip from him to another, and he has now no right of redemption. He cannot well complain of the loss of a right he never sought to exercise and does not claim or seek to exercise even now. Plaintiff does not deny, and in fact admits, the validity of the assessment, levy of tax, its delinquency and the sale of the property. In none of those proceedings does he assert or show any error or serious irregularity. When therefore a tax was validly levied, noticed, and remained unpaid, and the property sold therefor, the owner could maintain his right therein only by redemption. Since all proceedings up to sale are valid, plaintiff is limited thereafter to his redemption right. Time for redemption having expired, he can claim nothing. White Pine Mfg. Co. v. Morey, 19 Idaho 49, 112 P. 674.
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