181 Ind. 172 | Ind. | 1914
Appellant filed a claim before the Board of Commissioners of Sullivan County and it being refused, he appealed to the circuit court. lie filed an amended complaint in three paragraphs, to which demurrers were addressed and overruled as to the first, and sustained as to the second and third. There was an answer in general denial, and an affirmative answer and reply in general denial. At the trial the facts were agreed on, and no motion for a new trial was filed, and the agreed facts are not in the record. Judgment was rendered against appellant, from which this appeal is prosecuted, the errors assigned being as to the ruling on the demurrers to the second and third paragraphs of amended complaint.
The substance of the allegations of the second paragraph are: that on March 1, 1903, plaintiff was the owner of a described tract of land of 280 acres, in Curry Township, Sullivan County, which in 1903, between March 1 and June 1, was duly and legally assessed for taxation by the township assessor at $10,165; that there was no objection to, or modification of the assessment in any manner, or by any officer,
The third paragraph contains many of the allegations of the second, but travels on the theory, under its allegations, that the valuation and levy placed on the coal and mineral rights by the auditor and paid by the coal and coke company, was a part of the valuation fixed by the township assessor in 1903, and the same was true in 1904 and 1905, and that the auditor had no power to increase that assessment as against him, no reference being made in that paragraph to the action of the county board of review, or the State Board of Tax Commissioners.
Appellee’s theory is, that the assessment must have been wrongful, in order to authorize recovery, and that as the assessment in 1903 was not wrongful, the subsequent assessment could not be wrongful, and that in order to recover taxes claimed to have been wrongfully assessed, a clear case must be made. §6088 Burns 1908, supra; Board, etc. v. Murphy, supra; Board, etc. v. Armstrong, supra. Appellee is correct as to the last proposition, but it does not follow that there can be no change, so that a subsequent levy would not be wrongful, and we take it that the very purpose of the statute is to provide for the changing conditions arising from the severance of title to parts of property, in order that each shall pay its just pro
Appellee also urges that each paragraph is insufficient because it is claimed that it is not alleged that appellant had paid the taxes. In this counsel are in error, for it is distinctly and explicitly alleged in each. It appears that the taxes paid by appellant were neither justly nor equitably due. The case of Board, etc. v. First Nat. Bank, supra, is urged on us. In that ease, it was held that there was no wrongful assessment as to the bank, for the reason that the value of the stock included the value of the land, and the stockholders thus paid the taxes on the land, through the assessment on the stock which represented it, and was an overvaluation of the stock if anything, and not a wrongful assessment to the bank. That is far from the case where the failure of the auditor to do the duty imposed on him by law resulted in appellant’s land being charged with taxes not proportioned to its assessed value.
The court erred in sustaining the demurrers to the second and third paragraphs of complaint, and the judgment is reversed, with instructions to the court below to overrule the demurrers to each of those paragraphs, and for further proceedings not inconsistent with this opinion.
Note. — Reported in 103 N. E. 1075. See, also, under (1) 37 Cyc. 775; (2) 37 Cyc. 987; (3) 37 Cyc. 1009, 1059; (4) 37 Cyc. 1091; (5) 37 Cyc. 1174; (6) 37 Cyc. 1188. As to rights of owner of surface as against owner of minerals thereunder, see 135 Am. St. 131. For a discussion of an interest in minerals as taxable separately from land, see 15 Ann. Cas. 513.