Wilson v. Vincennes-Mississippi Land & Lumber Co.

• Citation: 114 Miss. 190,74 So. 825
• Decision Date: 16 April 1917
• Docket Number: 19020
• Parties: WILSON ET AL v. VINCENNES-MISSISSIPPI LAND & LUMBER CO
• Court: United States State Supreme Court of Mississippi

74 So. 825

114 Miss. 190

WILSON ET AL v. VINCENNES-MISSISSIPPI LAND & LUMBER CO

No. 19020

Supreme Court of Mississippi

April 16, 1917

Division B

APPEAL from the chancery court of Washington county, HON. E. N THOMAS, Chancellor.

Suit between the Vincennes-Mississippi Land & Lumber Company and Calhoun Wilson and others. From a judgment for the former the latter appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Gardner McBee & Gardner, for appellant.

We say that in order to properly decide this case, the question is: Conceding the assessment made by the authorities to be proper (and this seems to be conceded by both briefs), that the assessment and the taxes are as is meant by the contract sued on.

Responding to the case cited in appellee's brief Globe Lumber Company, Ltd. v. Lockett, 30 So. 902, the question there decided was: "That the owner of the land must pay taxes on it; the owner of the timber must pay taxes on it; and the assessments must be separate."

We have no quarrel with this decision, in fact, we say that if we had appeared before the board of supervisors and resisted the assessment, that we necessarily would have lost, being the owners of the timber, should pay taxes on it, and that any contract we might have with appellees was a matter to be fixed to the contract and in a suit between the parties thereto for that particular purpose.

Appellees cite at length in their brief from the case of Williams v. Trinche, 31 So. 926. Waiving the point, which we do not think material here, that the citation in the brief is from the opinion by the district court, which was appealed from and reversed in the opinion of the supreme court of Louisiana, rendered by NICHOLLS, C. J. We contend that this opinion is not against our contention but in fact for it; "In passing upon the issues involved in this litigation it must be borne in mind that we are not determining the property rights between Williams and the Godchaux Company, but interpreting the legal situation viewed from the standpoint of the enforcement of rights and remedies of the state as fixed by her own law." Williams v. Triche, 31 So. 926, 930.

"As a matter of course, contract rights and obligations exist and may be enforced between the owner of the legal title and third parties inside of the legal title, if that expression can be used; but until the title actually shifts, the state has nothing to do with them, unless she so expressly declares herself willing to do by statute." Williams v. Triche, 31 So. 926, 932.

Our idea is, that, in this case, Calhoun Wilson was primarily liable for the taxes on the timber, but that he could not be held liable for taxes that followed an assessment under the column of the Assessment Roll, "Vauation of Wild and Uncultivated. Land, Excluding Timber" for he never bought any land, was never the owner of any land under the contract sued on, and appellees undertook to pay this tax in their contract.

Under the law he was primarily liable, to use the expression in the above decision, "for the taxes on the timber." By virtue of the contract, we submit that he had made arrangements between himself and appellees "to pay the whole debt; to wit, the taxes, and that they are liable and should be held to pay all of the taxes covered by this suit.

We submit, that to place the construction on this contract desired by appellees, would be to make the clause contained in it with reference to payment "all taxes on the land" absolutely meaningless.

Percy Bell, for appellee.

We have no quarrel with appellants that growing timber is land, as that is too well settled for discussion. The court will notice, however, that the agreement and contract of the appellees was to pay the taxes on the lands described," and certainly the description did not include the timber. There can be no possible reason adduced why the appellees should pay the taxes on the property of the appellants; that separate interests can be, should be, and are separately assessed and paid for by the respective owners, is settled in a number of cases. There are innumerable cases involving mines and minerals, where the minerals lying beneath the surface of the land are sold, and the purchaser thereof pays the taxes thereon, while the owner of the land itself, pays the land taxes. We shall not burden the court with quotations from these cases, which the court will find cited in great quantity in the Century Digest, Title, Taxation, section 147, and the Centennial Digest, same title, section 63.

The exact question that arises and is presented in the instant case, however, has been before the courts and decided. In the case of Globe Lumber Company, Ltd. v. Lockett, 30 So. 902. However, the question was presented also on the case of Williams v. Triche, 31 So. 926, where the court held that where the owner of land makes a contract by which he conveys rights to the trees standing on land, which rights fall short of ownership, that there cannot be a separate assessment, which case in reason supports the position of appellees in the instant case, for the reason that in the case at bar, there was a sale of the trees themselves, not the sale of the right to cut them.

An illuminating case is that of Fox v. Pearl River Lumber Company, 31 So. 583, from which we quote as follows "By the common law, trees are a part and parcel of the land upon which they are growing or standing, for the term "Land" embraces not only the soil, but its natural productions; and trees growing or standing upon the land are not distinguishable in their character of real estate from the soil itself until they are actually severed from the soil. Harrell v. Miller, 35 Miss. 702, 72 Am. Dec. 154; Jones v. Flint, 10 Adol. & E. 753; McKenzie v. Shows, 70 Miss. 388, 12 So. 336, 35 Am. St. Rep. 654. By the common law also several sorts of estates or interests, joint or several, may exist in the same fee; as that one person may own the ground or soil, another the structures thereon, another the minerals beneath the surface, and still another the trees and wood growing thereon, etc., the counsel for appellee, as we understand his contention, does not deny that the interest of appellee in the standing timber on the soil of another in Lawrence county is real estate, but that it is real estate assessable only to the owner of the ground or soil, and that the separate assessment of it to appellee by the assessor of Lawrence county is illegal and void. It is too plain for argument that by the common law as administered in England and in this state, the right and interest of appellee to the timber standing upon the lands of others in Lawrence county is an interest in real estate; and we see no reason why appellee's said interest, being worth according to its own valuation, more than twenty-five thousand dollars, should not be separately assessed to it as the owner thereof. Our revenue law requires land to be assessed to the owner (section 3753) that, if there be more than one claimant, they should all be named (section 3774); that each owner should give in his land at its intrinsic value (section 3759); and, as each owner lists and values his own property, it reasonably follows that his separate interest, whatever it be, should be separately assessed. Such assessments are held valid in other jurisdictions. ...