Wood v. McCombe

• Decision Date: 04 June 1906
• Citation: 37 Colo. 174,86 P. 319
• Parties: WOOD et al. v. McCOMBE et al.
• Court: Colorado Supreme Court

86 P. 319

37 Colo. 174

WOOD et al. v. McCOMBE et al.

Supreme Court of Colorado

June 4, 1906

Rehearing Denied July 2, 1906.

Appeal from District Court, Lake County; Peter L. Palmer, Judge.

Action by Alice J. McCombe, as administratrix of John McCombe deceased, and others, against Tingley S. Wood and others in support of an adverse mining claim. From a judgment in favor of plaintiffs, defendants appeal. Reversed.

Charles Cavendor, for appellant.

George R. Elder, pro se.

MAXWELL J.

December 31, 1884, Peter Finnerty and Wilhelmina Gude, owners of the Comstock lode mining claim, Lake county, Colo., entered the same for patent in the United States land office at Leadville, Colo., and a receiver's receipt for mineral entry No. 2,411 for 9.67 acres was issued to them therefor. May 2, 1887, the Commissioner of the General Land Office held for cancellation 1.80 acres of the entry, which area was not included in the application for patent, by reason of the fact that such area was in conflict with the Idaho lode mining claim, United States survey No. 667. December 12 1894, the Commissioner of the General Land Office canceled mineral entry No. 2,411 for failure to furnish certain proofs required by the department. December 21, 1896, by order of the Commissioner of the General Land Office, the entry of the Comstock lode was reinstated as to 7.88 acres, excluding however, the area in conflict with the Idaho 1.8 acres, for which last-named area a supplemental application for patent was allowed and ordered. Pursuant to this last order, June 19, 1897, appellants filed a supplemental application for patent for that portion of the Comstock included within the boundaries of the Idaho, being 1.8 acres. August 19, 1897 John McCombe filed in the United States Land Office at Leadville, Colo., his protest and adverse claim against such supplemental application for patent, and September 17, 1897, commenced this action against appellants in support of such adverse claim, alleging in his complaint that he was the owner of an undivided one-third interest in the Comstock, from which appellants had ousted him and unlawfully and wrongfully detained possession thereof from him, including that portion of the Comstock covered by the supplemental application for patent, to wit, 1.8 acres; that the action was in support of his adverse claim theretofore filed in the land office, and to recover possession of plaintiff's one-third interest in the Comstock. Mr. McCombe died. His administratrix and heirs at law were substituted as plaintiffs. Thereafter one Samuel McMillen was made a party plaintiff, and upon the suggestion of his death George R. Elder, successor in interest, was substituted. June 4, 1901, Tingley S. Wood, one of the defendants, appellants here, filed his answer denying the material averments of the complaint and affirmatively pleading title to an undivided one-third interest in the Comstock, in himself, under and by virtue of a tax deed dated August 8, 1892, recorded August 11, 1892, which tax deed was issued by the county treasurer of Lake county to one C. T. Carnahan, and the property thereby conveyed to Carnahan subsequently conveyed to Mr. Wood; that such tax deed was based upon a tax sale of the interest of Wilhelmina Gude in the Comstock lode, made August 5, 1889, for delinquent taxes assessed against the property for the year 1888; and the statute of limitations (Mills' Ann. St. § 3904), possession in himself and grantor, and payment of taxes since 1892 were also pleaded. July 21, 1902, Mr. Elder filed a reply denying the material affirmative allegations of Mr. Wood's answer and upon numerous grounds attacked the validity of the tax deed title relied upon by Mr. Wood. The principal grounds of such attack are that in 1888, the year when the property was assessed under which the sale for delinquent taxes was made, the title was in the government of the United States and the property was not subject to assessment or taxation; that the advertisement of the tax sale was made by publication in the Sunday issue only of a newspaper, and therefore invalid, and the subsequent proceedings thereunder void; that the payment of all taxes subsequent to such sale was without force or effect, for the reason that, the title being in the government, the assessment of the property and its taxation was without authority, that 1.8 acres included in the assessment of the property never was a part of the property, and that the inclusion of such area in the assessment and taxation rendered the whole assessment void. By stipulation the reply of Mr. Elder stood as the reply of the heirs of Mr. McCombe. A trial to the court without a jury resulted in a decree in favor of plaintiffs and against defendant Wood for an undivided one-third interest in the Comstock lode mining claim, United States survey No. 3,613, an undivided one-third interest in that portion of the Comstock in conflict with the Idaho, to wit, 1.8 acres, that Mr. Wood had no interest whatever in the Comstock, and that the tax deed to Carnhan and Carnahan's deed to Wood were invalid and void. Two questions decisive of this appeal, are presented by this record: (1) Are mining claims in this state which have not been patented or entered for patent subject to taxation? (2) Had the bar of the statute of limitations (section 3904, Mills' Ann. St.) run in favor of appellant Wood before the commencement of this action?

1. The General Assembly at its session of 1887 enacted legislation for the taxation of mines and mining property, the first section of which is: 'All mines and mining property of the class heretofore exempted by the Constitution of the state of Colorado, shall hereafter be assessed and taxed, and the taxes levied enforced by sale of the property taxed, in default of payment, in the same manner as is now or may be provided by law, in the case of other classes of taxable real estate.' Section 2 provides a form for the description of such property for the purposes of taxation and assessment. Section 3, construed with section 1, classifies all mines and mining property and possessory rights therein, for the purpose of assessment and taxation, into those producing during the fiscal year an amount exceeding $1,000 and those producing less than that amount or nothing at all. Section 4 provides: 'In case the mine or mining claim shall not be patented, or entered for a patent, but shall be assessable and taxable under this act, on account of producing gross proceeds, then, and in that case, the possession shall be the subject of the assessment, and if said mining property be sold for taxes levied, the sale for such taxes shall pass the title and right of possession to the purchaser, under the laws of Colorado.' Laws 1887 pp. 340, 341; Mills' Ann. St. §§ 3222-3225. This statute was under consideration by this court in People v. Henderson, 12 Colo. 369, 21 P. 144, and its meaning construed. Mr. Chief Justice Helm, writing the opinion of the court, said: 'Section 1 of the act before us contains an express legislative declaration that, after the adoption thereof, mines and mining claims bearing precious metals shall be taxed for revenue. All such property, regardless of its tenure--that is, whether held under patent, application for patent, or mining location, and regardless of the question as to whether the value thereof be much or little--is clearly and unequivocally subjected to taxation. In effect, sections 1 and 3 of the act, taken together, divide this species of property into two classes, viz.: First, the mines or mining claims referred to in section 3, i. e., those which during the preceding fiscal year have had a gross output aggregating upwards of $1,000 in value; and, second, all the remaining or nonproducing claims, without reference to value.' In summing up, the conclusions are stated as follows: 'Therefore by the act in question we are advised, first,...