164 N.W. 315 | N.D. | 1917
Lead Opinion
The plaintiff brought this action under the statute to determine conflicting claims to real property. The complaint is in the usual statutory form, and requires the defendant to .-set forth all of its adverse claims to the property described, so that the validity thereof may be determined and that they be adjudged null and void, etc. The answer admits all of the allegations of the complaint, and, as affirmative relief, alleges “that during the year 1912 the defendant, by its proper officials, listed for taxation the lignite coal and minerals and the title to coal and minerals underlying the lands described in plaintiff’s complaint, the ownership of which has been .-severed from the ownership- of the overlying strata; and that theretofore the plaintiff has owned said land and sold the same,, reserving to itself the ownership of the lignite coal and minerals underlying said land.” The answer further alleges that, after the listing of the said lands for taxation, they were duly assessed for taxation purposes; that the same were equalized in the manner prescribed by law and the taxes duly levied; that said taxes were never paid and became delinquent March 1, 1913. The answer then sets forth a description of the lands so assessed, together with the taxes, penalty, and interest levied and assessed against each tract and prays that the said taxes be declared to
That the plaintiff has an estate in, and interest in, the following ■described real property, situated in the above-named county and state, to wit:
Mineral Eights
[Assessed in Oliver County, North Dakota.
1912.
Northwestern Improvement Company.
—following this with a columnized statement showing the description •of the quarter, the section, township, and range in which the lands are ■situated and the number of acres in each parcel of land.
The facts in the case are stipulated by the parties, and from the stipulation we find: That all of the allegations in the complaint are true; that the title to the lands in question passed from the United States government to the Northern Pacific Kailway Company; that the Northern Pacific Eailway Company conveyed the land to the plaintiff; that the plaintiff conveyed said land to various owners, with the exception that in each instance of conveyance to said owners the plaintiff reserved all mineral rights, which reservations, contained in plaintiff’s deeds, were in two forms, as follows:
Form 1. “Keserving and excepting from said lands as are now known, or shall hereafter be ascertained, to contain coal or iron, and also the use of such surface ground as may be necessary for mining •operations, and the right of access to such reserved and excepted coal ■and iron lands, for the purpose of exploring, developing and working the same; the use of such surface ground and the right of access herein reserved to be for the use and benefit of said party of the first part, its successors, and its assigns of the lands hereby excepted.”
Form 2. “Excepting and reserving unto the grantor, its successors •and assigns, forever, all coal or iron upon or in said lands, together with the use of such of the surface as may be necessary for exploring for, and mining or otherwise extracting and carrying away the same. But the grantor, its successors and assigns, shall pay to the grantee, or to his heirs or assigns, the market value at the time mining operations are*60 commenced, of such portion of the surface as may be used for such operations, including any improvements thereon; the grantee, his heirs, and assigns shall notwithstanding have at all times the right to mine and remove such reasonable quantity of coal as may be necessary for his own domestic use.”
That Oliver county had no organized townships in 1912, but the assessment was made by county assessors; that the assessment was-made between the 1st day of April, 1912, and the 20th day of June, 1912.; that the assessors’ books were turned in and filed with the county auditor on or before June 20, 1912, and that the assessment made by .the assessors included all of the lands described in the complaintj that the records so turned in contained no' assessment of mineral reservations, and were in the same form as assessments of land where there were no mineral reservations; that the county board of equalization met in July, 1912, and adjourned without making or attempting to make any assessment of mineral reservations; that during the months of' August and September, 1912, and after the adjournment of the board of equalization, the county auditor entered a valuation upon the assessors’ books of $50 for the mineral reservation of each quarter; that no record action was taken by the board of county commissioners, no notice of such assessment given to the plaintiff, and no hearing had upon the valuation; that the county auditor had informed the board of equalization of his intention to make the assessment, and conferred informally with them, thereafter, on the subject of valuation; that after the assessment the county auditor copied the same into the tax lists and extended the same at the rate and in the amounts set forth in the answer; that the first information the plaintiff had as to the amounts claimed was contained. in a notice sent by the county treasurer in the latter part of January, 1913, and that no notice was given nor opportunity afforded to appear before any board on the matter of the assessment in question;. that the assessment, as inserted in the assessors’ books, by the county auditor, was extended on the tax list for 1912 and the county auditor caused the same to be advertised and the land sold for delinquent taxes in December, 1913, and were bid in by the county, with the usual’ certificates of sale issued; that in the assessors’ books, under the heading of “Owner of Land,” the auditor wrote: “Owner of minerals and coal,”' and wrote, as and for the owner, “N. W. Imp. Co.,” and in describing
The first question to be determined is whether the complaint states a cause of action in favor of the plaintiff. This issue is not raised by the parties but by a member of this court, and is based upon the description of the title or interest in the real property claimed by the plaintiff and set forth in its complaint. Paragraph 3 of the complaint alleges: “That the plaintiff has an estate in and interest in the following described real property, situated in the above-named county and state, to wit: Mineral rights assessed in Oliver county, North Dakota,” —following this, with a detailed description of the several parcels of land, aggregating in all over 26,000 acres. There was no motion to
It is clear that the assessment as made by the county auditor is-null and void. The description of the lands as set forth on the assessment roll is in the form which has been repeatedly declared by this court to be insufficient as a basis of taxation. In Power v. Larabee, 2 N. D. 141, 49 N. W. 724, this court said: “No valid assessment was made or could be made on such pretended description.” This rule was followed in numerous cases since. It is not necessary to determine hero whether such rule should be abandoned, for the attempted assessment made by the county auditor is void on other grounds. Under the pro
The appellant urges, however, that even though the act of the county auditor may not have been in compliance with the statute, yet, under the provisions of § 2201, the court has the power to reduce the amount of taxes, if the same are excessive, to give judgment accordingly, and to amend and correct all irregularities and defects in the form or manner of assessment. This section says: “In any action . . . for the . . . annulment of taxes levied . . . against any . . . property in this state and in any action or proceedings to determine adverse claims to real estate, no tax shall be set aside for any irregularity or defect in-form or illegality in assessing, laying or levying such tax, if the . . . property upon which such tax is levied, assessed or laid is in fact liable to taxation, unless it be made to appear to the court that such-irregularity resulted to the prejudice of the party objecting,, . . . the court shall also have power to amend and correct all irregularities or defects in the form or manner of assessment.” We hold that this section does not confer upon this court the power to make an assessment and levy taxes. The defects and irregularities in this case are not defects or irregularities in manner or form alone; they are jurisdictional in character. While we hold, as hereinafter stated, that said mineral rights are, in fact, liable to taxation, and while in such cases the statute says that a tax shall not be set aside for any illegality
It is urged by respondent that no taxes should be levied upon this property, for the reason that all taxes have been paid by the surface owner. Counsel for respondent cites § 2076 in support of the contention that the mineral rights cannot be taxed separately from the land. This section states that “real property, for the purpose of taxation, includes the land itself — and all mines, minerals, quarries, in and under the same.” The definition also includes “all rights and privileges” belonging to the land. The aim of this section is to include in real property everything which is connected therewith in its use and for which the ground itself is a constituent element. The statute undertakes to say what is defined as real estate, but it does not say in whose name the same shall be assessed. Here are parcels of land where the grantor reserved to himself certain specified interests. The interests conveyed by the grant and the interests reserved to the grantor are clearly ascertainable from the records. They are just as separate and distinct as if the grantor had conveyed an undivided one-half interest. The fact that the auditor was able, from the records alone, to ascertain the interests of the plaintiff herein, so as to place them
The judgment of the lower court is affirmed.
Concurrence Opinion
(concurring specially). I concur in the propositions announced in paragraphs 1, 2, and 3 of the syllabus, and this will result in an affirmance of the judgment. In this connection, however, I desire to say that I concur in the proposition announced in paragraph 3 of the syllabus, solely on account of the construction placed upon § 2201, Compiled Laws 1913, by this court in State Finance Co. v. Bowdle, 16 N. D. 193, 198, 112 N. W. 76, and Grand Forks County v. Frederick, 16 N. D. 118, 121, 125 Am. St. Rep. 621, 112 N. W. 839. If this was a case of original impression, I should unhesitatingly hold to the contrary.
My ideas with respect to curative statutes in tax proceedings were well expressed by the supreme court of New Jersey in Elizabeth v. State, 45 N. J. L. 157, 159. The court said: “It [the purpose of the legislature] was to assign to the court the province of seeing that its suitors who were liable, or whose property was subject to these assessments for public improvements and who were seeking to vacate any of such assessments, should in every event be made to bear their fair and legal share of the burden. This provision was well timed and most salutary; for while it preserves to the owner of the property the ability to relieve himself from so much of his tax as is unjust, it at the same time, and by a summary procedure, compels him to do justice to the public by paying such part of his assessment as is justly due. This law is, in the highest sense, remedial, and should be construed with liberality, so as to abate the mischief of taxpayers avoiding, by litigation, their honest dues to the government.”
Concurrence Opinion
(specially concurring). The plaintiff brings this action in the form of a suit to quiet title to land. It avers that it has some title or interest in some 120 tracts of land in Oliver county, to wit, “Mineral Rights” and that defendant claims certain liens adverse to the plaintiff. Defendant county by answer sets up a claim of lien, and it was duly adjudged that the claim of the county is void, and defeudant appeals to this court.
The claim is based on certain tax proceedings for the year 1912, which are manifestly void, for the reason that in 1912 there was no assessment for taxation of the mineral rights described in the pleadings.
The only question is, Can the plaintiff maintain this action? It is not an action in equity, because the complaint makes no appeal to equity. It is based on the statute, which provides: “An action may be maintained by any person having an estate or interest in real property against another who claims an estate or interest therein adverse to him for the purpose of determining such adverse claim.” Rev. Codes 1899,, § 5904. The plaintiff does not come within the statute. Neither the complaint nor the evidence shows that the plaintiff has any title or interest in the lands. The complaint avers merely that the plaintiff has an estate and interest in certain described lands, to wit, “Mineral Rights.” It contains not a word to show that there is any mineral on either or any of the tracts of land. In the brief of the respondent it is said no examination of these lands has been made, and it is not known whether they contain mineral of any kind or not; and that is strictly in accord with the stipulation, § 19. Now as the pleadings and the evidence fail to show that the plaintiff has any title or interest in the lands, the case presents merely a moot question, and not any right to real property. Hence, the action should be dismissed. This court will not waste its time in considering and deciding cases about nothing.