203 Ky. 813 | Ky. Ct. App. | 1924
Opinion op the Court by
Affirming the judgment in the first case and reversing in the second.
The appellant in the first case above, M. J. Moss, owned in fee simple 554 acres of coal land in Harlan county and he listed it for taxation for the year 1921 at
The second case in the caption was a- proceeding begun in the county court of Harlan county by the Commonwealth through its revenue agent to assess the same tract of land involved in case one for the years 1917, 1918 and 1919, as omitted property. The statement of the revenue agent was afterwards amended in which it was averred that the omitted property which defendant Moss failed to list for taxation with the assessing officer for the years mentioned was not the land or its surface, but was defendant’s mineral interest therein, it having been developed by his answer that in 1911 he had leased his tract of land for coal mining purposes to another and that the lessee had transferred the lease to the White Star Coal Company and it was operating upon the land under its lease during those years, and that under the express terms of the lease the operating lessee agreed to pay the taxes (as between lessor and lessee) “on the coal rights and improvements that may be con-, structed on said boundary of land for the purpose of operating said lease.” Following that, the answer averred that, according to defendant’s best information and belief, the lessee, White Star Coal Company, in obedience to that provision in the lease contract, had paid the taxes on the mineral rights for the years involved. Appropriate pleadings formed the issues and case one was consolidated with the proceedings by the revenue agent, which we wifi hereafter refer to as “case two,” and after evidence heard the court dismissed case two, from which judgment the Commonwealth appeals.. The two appeals have been heard together in this court, and will be disposed of in one opinion.
There were no written pleadings in case one and it was practiced below as though there had never been any
Following his chosen course, he did not show by any evidence introduced that the White Star Coal Company listed or paid any taxes on any mineral rights under the land for the year involved, and the only question presented by the first appeal is whether the sum of $23,-000.00, at which the board of supervisors valued the land, was supported by the proof. That valuation, as we have seen, was upheld by both the quarterly and circuit courts of Harlan county, and while the evidence to sustain it is contradicted by the testimony of appellant, and the superintendent and general manager of the White Star Coal Company, yet we cannot say that their testimony should be given any greater weight than to produce a sharp contrariety in the proof upon the issue of correct valuation. Other witnesses, including the tax commissioner, the sheriff and others familiar with the reasonable value of the same character of land, including minerals thereunder, testified in support of the valuation fixed in the judgment appealed from, and the most that may be said with reference to the testimony as a whole is that it is conflicting. It is not of such a nature as that the finding of the supervisors and also of the quarterly and circuit courts was flágrantly against the .evidence, nor are we even prepared to say that it was contrary to its preponderance. Under a well known rule of appellate practice we are not authorized in such cases to disturb the judgment upon the sloe ground that it is not sustained by the evidence, which is the only one relied on here.
The evidence heard in the circuit court at the trial of case two in the caption showed thta the defendant,
Wherefore, the judgment in case one is affirmed, but in ease two it is reversed with directions to hear proof on the value of defendant’s royalty interest created by the lease executed by him in 1911 and to assess against him the value thereof for the three years involved.