Fox v. Pearl River Lumber Co.

| Miss. | Mar 15, 1902

Terral, J.,

delivered the opinion of the court.

The appellee, the Pearl Fiver Lumber Company, a Mississippi corporation, domiciled in Lincoln county, being the owner by purchase and conveyance of sundry large quantities of timber growing upon certain lands in Lawrence county, at the proper time in A.D. 1900, rendered to the assessor of Lawrence county a list of its property in said county subject to taxation, with the valuation thereof, and among the properties so owned by it and listed to the assessor as aforesaid, was the following: The timber growing upon certain lands therein described; and the said assessment so made by said company was duly entered upon the land assessment roll of Lawrence county for said year A.D. ■ 1900, which assessment was in due process of law approved by the board of supervisors of Lawuence county. The taxes so assessed to the lumber company not being paid on or before the 15th day of January (§ 3811, Code 1892), the tax collector was about to proceed to collect the same by sale, when the lumber company enjoined their collection. The Pearl Fiver Lumber Company, in its bill, alleges that it' had paid its privilege tax, and all other taxes for wdiich. it was legally assessed; however, not defining whether the privilege tax paid by it was that of a sawmill, under sec. 71, ch. 5, laws 1898, or the. privilege tax levied on each land timber mill company buying timber without the land on which it stands, under sec. 8, ch. 43, laws 1900, nor defining what composed the other ad valorem tax paid by it; but further avers that the assessment of the timber interest in Lawrence county was illegal and void, because, as it says, it was not competent to assess said timber interest owned by it separate and apart from tke land upon wkick tbe timber Ayas growing, and because the lands themselves were assessed to tbe various owners thereof. It appears from tbe evidence that all tbe land upon which tbe growing timber of appellee is situated was assessed to tbe 0Avner& thereof, but at a value diminished by the value of tbe timber OAvned by the lumber company, and that tbe estate and interest of said lumber company in tbe timber growing upon said land with its value was entered upon tbe land assessment roll in conformity with tbe list and assessment furnished by said lumber company to the assessor. Tbe motion of tbe tax collector to dissolve tbe injunction wms overruled, and from tbe decree to that effect be appeals.

I By tbe common law, trees are a part and parcel of the land I upon which they are growing or standing, for tbe term “land” embraces not only tbe soil, but its natural productions; and trees growing or standing upon land are not distinguishable in their character of real estate from tbe soil itself, until they are actually severed from tbe soil. Harrell v. Miller, 35 Miss., 700" court="Miss." date_filed="1858-10-15" href="https://app.midpage.ai/document/harrell-v-miller-8257419?utm_source=webapp" opinion_id="8257419">35 Miss., 700 (72 Am. Dec., 154); Jones v. Flint, 10 Adol. & E., 753; McKenzie v. Shows, 70 Miss., 388" court="Miss." date_filed="1892-10-15" href="https://app.midpage.ai/document/mckenzie-v-shows-7987310?utm_source=webapp" opinion_id="7987310">70 Miss., 388 (12 So., 336; 35 Am. St. Rep., 654). By tbe common law also, several sorts of estates or interests, joint or several, may exist in tbe same fee; as that one person may own tbe ground or soil, another tbe structures thereon, another tbe minerals beneath tbe surface, and still another tbe trees and wood groAving thereon, etc.

Tbe counsel for appellee, as we understand bis contention, does not deny that tbe interest of appellee in tbe standing timber on tbe soil of another in Lawrence county is real estate, but that it is real estate assessable only to tbe owner of tbe ground or soil, and that tbe separate assessment of it to appellee by tbe assessor of Lawrence county is illegal and void. It is too plain for argument that by tbe 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 $25,000, should not be separately assessed to it as the owner thereof. Our revenue law requires land to be assessed to the owner (Code 1892, § 3753) ; that, if there be more than one claimant, they should all be named (§ 3774); that each owner should give in his land at its intrinsic value (§ 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. In New York it is held that distinct interests may be owned by several persons in the same parcel of land, as one may own the soil and another the buildings thereon, and that the buildings are assessable as real estate. People v. Board of Assessors of City of Brooklyn, 93 N.Y., 308" court="NY" date_filed="1883-10-02" href="https://app.midpage.ai/document/people-ex-rel-muller-v--bd-of-assessors-3606399?utm_source=webapp" opinion_id="3606399">93 N. Y., 308. In Pennsylvania it is said, where the surface of lands and the minerals thereunder have been severed by conveyance, and the respective interests have become vested in different owners, taxes should be levied upon each owner according to his interest only, and one cannot be charged with the whole tax. Sanderson v. City of Scranton, 105 Pa., 469" court="Pa." date_filed="1884-02-26" href="https://app.midpage.ai/document/sanderson-v-city-of-scranton-6237704?utm_source=webapp" opinion_id="6237704">105 Pa., 469. In Massachusetts it is held that a right to maintain a dam upon the land of another is properly assessable as real estate. Water Co. v. Lynn, 147 Mass., 31 (16 N. E., 742).

The Pearl River Lumber Company can have no remedy by injunction for another reason. Of its own accord it rendered to the assessor of Lawrence county a list of lands in said county, upon which it claimed by conveyance the timber growing thereon, with its valuation of said timber interests; and said assessment of said timber was duly entered by the assessor upon the land assessment roll of Lawrence county, and said assessment roll was duly approved by the board of supervisors of said county; wherefore the said assessment of the appellee, by the express declaration, of § 3787, code 1892, became final and conclusive against appellee. It cannot thereafter be heard to question the validity of the assessment. Under § 3799 certain assessments might be corrected by application to the board of supervisors, but that subject does not fall under our present inquiry.

Upon the case made by the record we think the court erred in not dissolving the injunction, wherefore the decree below is reversed, the injunction dissolved, and the case

Remanded.