Walden v. Borden Co., 38664

• Decision Date: 06 May 1970
• Docket Number: No. 38664,38664
• Citation: 235 So.2d 300
• Parties: R. R. (Bob) WALDEN, as Tax Assessor of Hillsborough County, Florida, Petitioner, v. The BORDEN COMPANY, a corporation, et al., Respondents.
• Court: Florida Supreme Court

Page 300

235 So.2d 300

R. R. (Bob) WALDEN, as Tax Assessor of Hillsborough County, Florida, Petitioner, v. The BORDEN COMPANY, a corporation, et al., Respondents.

No. 38664.

Supreme Court of Florida.

May 6, 1970.

Rehearing Denied June 11, 1970.

William Terrell Hodges, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for petitioner.

C. Lawrence Stagg, of Holland & Knight, Tampa, for respondents.

ROBERTS, Justice.

This cause is before the court on direct conflict certiorari to review the decision of the District Court of Appeal, Second District, in Walden v. Borden Company, Fla.App.1969, 221 So.2d 771, affirming without opinion the trial court's summary judgment under the authority of Matheson v. Elcock, Fla.App.1965, 173 So.2d 164, cert. disch., 184 So.2d 889. We have examined the record proper, see Foley v. Weaver Drugs, Inc., Fla.1965, 177 So.2d 221, and have concluded that the trial court's judgment was improper under the well settled rule respecting the propriety of a summary judgment where there is a genuine issue of material fact. See Holl v. Talcott, Fla.1966, 191 So.2d 40 and cases cited. The decision affirming such judgment is, therefore, in direct conflict with Holl and similar cases.

The trial court's summary judgment was entered in a suit filed by the respondent, The Borden Company, challenging the validity of a 1967 tax assessment against a 3,800-acre tract of land owned by it in Hillsborough County adjacent to its phosphate mining operations in that area. The tax assessor had classified the tract as non-agricultural and valued it on that basis. The Board of Equalization concurred. The trial judge disagreed and entered summary judgment invalidating the assessment.

The summary judgment was based on affidavits of the manager of the company's local phosphate mining operations and the current lessees of the tract. The manager stated that he had been with the local operating company since 1932, and, to his knowledge, the property had since that date been used 'for pasture and/or farming purposes and no other.' The lessees stated that they had taken over the lease of a former lessee and his 225 head of cattle in December of 1966 and that prior to, and on January 1, 1967, the property was 'native pasture land which was used solely for cattle grazing.' The lease was apparently a form lease providing for a tenancy at will terminable on 60 days' notice, and for a rental of 50 cents an acre on 3,750 acres and $10.00 an acre on the remaining 50 acres. It contained clauses by which Borden reserved an easement upon the property for the discharge of smoke fumes and other by-products which arise out of its phosphate production and by which the lessees released Borden of any claims for damages arising out of the discharge of such waste products. Borden states in its brief that '(t)hese are simply standard provisions required by Borden as partial consideration for its lease, to protect itself against claims which might arise by reason of operations conducted on neighboring property' and that they 'in no way affect the possession and occupancy of the Tenants, nor change the undisputed use of the property for agricultural purposes.' The record does not show whether the property has ever been used for the phosphate operations.

It is clear that the lessees were on January 1, 1967, using the property--or, at least, a portion of it--for a recognized 'agricultural' purpose, the pasturing of cattle. The Borden Company takes the position that their lessees' use of the property for an agricultural purpose determines the character of the land for tax purposes, and that any potential use of the property by the company in connection with the adjoining phosphate operations is simply irrelevant. The tax assessor argues that the lessees' agricultural use is only 'servient, temporal and incidental' to the primary and dominant use of the property by the owner for non-agricultural purposes and that the company could not, therefore, claim a right to the preferential tax treatment accorded to 'bona fide' agricultural lands by the statute. Our examination of the history of the applicable statutes persuades us of the soundness of the assessor's position.

As pointed out by James S. Wershow in his article on 'Recent Developments in Ad Valorem Taxation,' 20 Fla.Law Review 1 et seq. (Summer 1967), our first tax statute relating specifically to agricultural lands (Ch. 57--195, Acts of 1957, carried forward as Section 193.11(3), Florida Statutes, F.S.A., and transferred to Section 193.071(3), Fla.Stat.1969, F.S.A.) was enacted to sweep away remnants of the 1925 boom subdivisions in Dade County. It directed the tax assessor to assess agricultural lands upon an acreage basis 'regardless of the fact that any or all of the lands were embraced in the plot of a subdivisions or other real estate development.' Only incidentally was the term 'agricultural purposes defined. A true 'green belt' statute (Ch. 59--226, Acts of 1959, carried forward as Section 193.201, Florida Statutes, F.S.A.) giving tax protection to agricultural lands, was adopted in 1959. Its provisions for zoning lands as agricultural or non-agricultural were, however, optional and could be rejected or accepted by the board of county commissioners in its discretion. (Cf. Section 193.201 as amended by Ch. 67--117, Acts of 1967, carried...