240 Pa. 234 | Pa. | 1913
Opinion by
These two appeals are from the same judgment and may be considered and disposed of together. The case was tried before the court below without a jury under the Act of April 23, 1874, P. L. 109, and, in an exhaustive opinion dealing with both facts and law, the learned trial judge has clearly vindicated the correctness of his conclusions.
. The action was assumpsit to recover moneys expended in the years 1902 to 1906 inclusive by the plaintiffs in payment of taxes assessed against a tract of coal land containing 133 acres in Lackawanna County, held by the defendant company under a mining lease from parties now represented by the plaintiffs. The suit was instituted on the theory that under the lease the taxes were payable by the defendant company, and that they were paid by the plaintiffs under circumstances which justify the latter in demanding their repayment. The learned court below held that for the years 1902 and 1903 .the taxes were, voluntarily paid by the plaintiffs
The lease in question embraced two tracts of coal, one containing 295 acres, the other 133 acres. The taxes in dispute are those assessed against the latter or smaller tract. Without referring specifically to the terms of the lease, we think its language brings it within our cases which hold that it is a sale of coal in place and operate as a severance of the coal from the surface, thereby creating a divided ownership between the surface and the minerals. There is no substantial difference between the lease in the present case and those in Delaware, Lackawanna and Western Railroad Company v. Sanderson, 109 Pa. 583, and kindred cases. It follows that the defendant company being the owner of the minerals was chargeable with the taxes unless it was otherwise agreed in the lease. The only stipulation in the lease bearing on the question is as follows: “And it is further agreed that the said party of the second part, his heirs, executors, administrators or assigns shall pay all taxes assessed on the tract owned by the Central Coal Company, all taxes assessed on the works or improvements erected or made under this lease on the other lands embraced in this lease, and all United States Government or State imposts or duties imposed or that may be imposed on the coal mined and sent away under this lease.” The tract owned by the Central Coal Company was the 295 acre tract on which the lessee was to pay all the taxes but, it will be observed, that the clause is silent as to payment of taxes on the coal in place in the other or smaller tract. It is contended, however, by the
The defendant further contends that there can be no recovery for the taxes of 1904 to 1906 because the payment of the taxes was purely voluntary, as they were made by the plaintiffs without compulsion or even on demand by the taxing officers. Neither the facts nor the law sustains this position. In a letter dated December 30, 1904, from defendant’s superintendent in reply to plaintiffs’ request that the defendant pay the taxes, the superintendent refused to pay them saying: “We fail to see wherein'we are required to pay the taxes on this coal, as the lease contains a distinct clause providing for the payment of all taxes on the coal by the
The court declined to permit the plaintiffs to recover for moneys paid by them in discharge of the taxes for the years 1902 and 1903 on the ground that the payments were voluntary and made with a full knowledge of the facts. By the findings of the court, it appears that Mr. Millard, one of the plaintiffs, took charge of the property in 1899 and put it in the hands of John R. Wilson, an attorney, whom he knew to be in the regular employ of the defendant company. Wilson then had charge of all matters pertaining to the defendant’s taxes in its mining department. He occupied much the same position towards the plaintiffs. He was authorized to examine their assessments, to see that their property was duly assessed and that none was omitted or included that did not belong to them; and in general to do whatever was necessary in the adjustment of their taxes and to advise Millard of the amount required to pay the taxes and to return the vouchers to Millard when paid. It is conceded that Wilson was attentive and served both parties in good faith. He paid the plaintiffs’ taxes in person from 1899 to 1903. He knew the valuation covered both coal and surface of the smaller tract, and mentioned the matter to defendant’s engineer who gave him a copy of the tax clause of the lease and told him the plaintiffs, under the lease, had to pay ihe taxes. Wilson consulted Mr. Storrs, the former head of the defendant’s mining department and a close and confidential friend of Mr. Millard and the latter’s agent for the sale of surface lots, who told Wilson that was the construction put on the lease by Judge Jessup. Thereafter, Wilson assumed that construction of the lease was correct and paid the taxes without mentioning the matter to Millard.
The plaintiffs have not excepted to the findings of
The plaintiffs contend that they are not bound by the knowledge of their agent because he acted for both parties and they were not informed as to the facts within his knowledge. But under the conceded facts of the case this contention is without merit. Wilson acted for the plaintiffs who knew that he was the agent of the defendant company in looking after its tax matters. His good faith towards both parties is admitted. He knew that both; coal and surface of the smaller tract were assessed to the plaintiffs and that he was paying taxes on both for the plaintiffs. Snyder, defendant’s . employee, gave Wilson a copy of the tax lease, and after a conference with Mr. Storrs, Wilson concluded the taxes were payable by the plaintiffs, and he paid them from 1899 to 1903. There was no collusion between Wilson and the defendant’s officers, and in paying the taxes for plaintiffs, he acted on his own judgment as to- their liability under the lease. Storrs, with- whom he conferred,, while a former employee of the defendant company, was at that time a close and intimate friend of Mr. Millard and was his agent in selling surface lots over .this coal. The taxes for the two,years in question Were, therefore, paid by the plaintiffs’ agent who knew all the facts and made the -payment in good faith with
It is argued by plaintiffs that if it be conceded they were bound by the acts and knowledge of their agent, they protected their interest in the land by paying the taxes and, therefore, the payments were not voluntary. But they were not required to pay the taxes on the defendant’s interest in the coal for the purpose of protecting their own interests unless the defendant refused to pay. As between the plaintiffs and the defendant company the latter was legally liable for the taxes. Without giving the defendant an opportunity .to determine its liability for the taxes and to pay them, payment by the plaintiffs was intrusive and without authority and, hence, was a voluntary payment. That the defendant subsequently declined to pay the taxes on the ground that it was relieved by the contract does not show that it would not have paid them if demand had been made at that time. We cannot assume it would not have performed á legal duty, and the. plaintiffs should have given it an opportunity to do so.
The judgment is affirmed.