Wilson v. Salt Lake County Corporation

• Decision Date: 15 December 1920
• Docket Number: 3483
• Citation: 57 Utah 274,194 P. 125
• Court: Utah Supreme Court
• Parties: WILSON v. SALT LAKE COUNTY CORPORATION

194 P. 125

57 Utah 274

WILSON v. SALT LAKE COUNTY CORPORATION

No. 3483

Supreme Court of Utah

December 15, 1920

Appeal from District Court, Third District, Salt Lake County; J Louis Brown, Judge.

Action by R. G. Wilson against the Salt Lake County Corporation. Judgment for plaintiff, and defendant appeals.

REVERSED and REMANDED with directions.

Richard Hartley, Co. Atty., and D. A. Skeen, Asst. Co. Atty., both of Salt Lake City, for appellant.

Christensen Stull & Carter, of Salt Lake City, for respondent.

CORFMAN C. J. FRICK, WEBER, GIDEON, and THURMAN, JJ., concur.

OPINION

CORFMAN, C. J.

Plaintiff commenced this action against the defendant in the district court for Salt Lake county to recover the price paid by him to the defendant (hereinafter referred to as the county) for certain unpatented mining claims.

It is alleged in the complaint, in substance, that in and for the years 1909, to and inclusive of the year 1916, the assessor for the county assessed, and levies were made, for taxation purposes, under the laws of Utah upon certain lode mining claims, situated in the West Mountain mining district, Salt Lake county, Utah named and known as the "Murray Lode," the "Murray Lode Nos. 1, 2, 3, 4, 5, and 6," the "Lucky Joe Lode" and the "Lucky Joe Lode No. 1," nine claims in all, having a total area of 145.34 acres, at a uniform value of $ 5 per acre, for each of said years; that said assessments and liens were made against the reputed owner of the claims, the Humboldt Gold Mining Company, as patented mining claims; that the tax so levied and assessed for the year 1909 became delinquent and, in conformity with statute, said mining claims were sold for delinquent taxes to the county on January 20, 1910; that said mining claims were not redeemed, and thereafter, April 16, 1914, a county auditor's deed was made and recorded in the office of the county recorder, conveying the said mining claims to the county; that the title to said mining claims so acquired by the county was thereafter, on July 18, 1917, sold and transferred by the county to the plaintiff for the amount of the taxes for said years 1909 to 1916, both years inclusive, with interest thereon; that the plaintiff in paying said amount of taxes, with interest to the county, for said mining claims, relied upon the validity and legality of the county assessor's assessment of said mining claims as patented claims, but subsequent to plaintiff's purchasing said claims and paying to the county said price therefor plaintiff discovered, on examination of the records of the United States land office at Salt Lake City, that, at the time of the assessment made in 1909, only four of said claims had been patented and United States patent issued therefor, and that the remainder of said claims, to wit, the "Murray Lode," the "Murray Lode Nos. 5 and 6," the "Lucky Joe Lode," and the "Lucky Joe Lode No. 1," with a total area of 71.744 acres, were not patented at the time of said assessment in 1909, nor have they since been patented, but the title thereto was at all times mentioned, and ever since has been, in the United States, subject only to such possessory rights as claim locators may have therein; that the assessment of said unpatented claims was without authority of law and illegal, and by reason thereof plaintiff, on or about the day of November, 1917, presented his petition to the board of county commissioners, setting forth said facts, and asking for an order authorizing and direction the treasurer of the county to refund to the plaintiff the amount of the taxes and interest, to wit, $ 111.44, paid by him for the said unpatented mining claims, which petition was denied. Judgment was demanded for the amount so paid by plaintiff for the unpatented claims, with interest and costs. A general demurrer, interposed by the county to the complaint, was overruled. The county elected to stand upon its demurrer, and declined to further plead. Thereupon a default was taken, and a judgment entered in plaintiff's favor in accordance with the prayer of the complaint. Defendant appeals. The errors assigned are the overruling of the demurrer and the entering of the judgment against the county.

Plaintiff in his brief and argument makes the statement that he seeks to recover from the county under the provisions of section 2642, C. L. U. 1907 (section 6043, C. L. U. 1917) which reads:

"Any taxes, interest, and costs paid more than once, or erroneously or illegally collected, may, by order of the board of county commissioners, be refunded by the county treasurer, and the portion of such taxes, interest, and costs of the state, cities, and school districts must be refunded to the county,...