67 W. Va. 385 | W. Va. | 1910
John T. McGraw brought a chancery suit in the circuit court of Preston county against James S. Lakin and others to set aside a tax deed for minerals in two tracts of land adjoining, making up a solid tract of three hundred acres. The circuit court dismissed McGraw’s suit without relief, and Mc-Graw appeals.
There was a demurrer to the bill and amended bill. We consider the bill defective. The original bill, which, in this respect, is not helped by the amended bill, is very general. It simply charges, in general words, that the clerk of the county 'court -without any legal authority made a conveyance, and that the assessment was illegal, null and void; but wherein the bill does not -tell us. There is no specification of defect, as there must be. Gerke Brewing Co. v. St. Clair, 46 W. Va. 93. The bill does say that the clerk conveyed more than the tax sale authorized, precisely wherein it does not say. I think the bills insufficient, and that the demurrer was well taken because of their uncertainty and indefiniteness. But let us waive the demurrer and come to the merits. The claim is, as argued here, that the assessment was too general and indefinite. No exhibit of that assessment is made; but if we assume from the list of sales that the assessment was the same, what do we find? We find a charge for the years of 1895 and 1896 in the names of
As to the claim that the clerk conveyed more thah the sale authorized. The argument is that the assessment and sale of “Mineral Rights” could not warrant the clerk to convey to the tax purchaser all the minerals in the land, or the absolute title to any such minerals. The very authority cited for this proposition contradicts it. One authority is Gibson v. Tyson, 5 Watts 37. It says: .“‘Minerals’ means all ores and other metallic substances which are found beneath the surface of the earth, and all substances which are the object of mining operations”. Another is Smith v. Cooley, 65 Cal. 46. Another is L. & N. R. Co. v. Massey, 96 Amer. St. R. 17, saying that: “Mining-rights must include incorporeal hereditaments lying in grant, but not in seizin; such as rights of way over the surface, the right to dig and drive slopes and entries, and the like rights of an intangible nature, incapable of being delivered by the sheriff, or of possession by the owner”. That authority does not say that “Mining Rights” does not include the minerals themselves. On the contrary, it means that “Mining Rights” include not only the minerals, but right of way and other uses of the surface necessary for the enjoyment of title to the minerals. Now, the deed in this case recites the purchase by Lakin, Coogle and Piekenpaugh“of the mineral under.” the tract specifically described in the deed, and then says: “The mineral only under said tract is hereby intended to be conveyed”. That conveyed all the mineral, and the assessment and sale of the “Mineral Rights” would be as. broad as the deed. The deed did not convey more than the sale authorized. If the sale list were exhibited with the bills it 'would correspond with the deed. We have considered the case on its merits, though the bill does not warrant it. The argument that we must presume that the surface owner paid the tax on the land, and that this would pay the tax on the
Affirmed.