82 W. Va. 462 | W. Va. | 1918
This suit was instituted by the commissioner of school lands of Barbour County to sell for the benefit of the school fund lands and interests in lands alleged to have been forfeited to the state for non-entry on the land books for taxation for five successive years, or delinquent and sold and purchased by the state for non payment of the taxes assessed thereon, and not redeemed within the time allowed by law.
The questions certified for decision are presented by the demurrers to the bill of some of the defendants, overruled, who are alleged to have been owners of undivided interests in the oil and gas in or under certain tracts of land situated in said county, and proceeded against as tracts Nos. 36, 38, 39, 41, 42, and 43.
According to the specific allegations of the bill the whole • of the estates in these lands was originally owned by one or more persons and taxed as such in their names respectively, but that prior to their alleged forfeiture undivided interests in the oil and gas were by deeds either reserved or sold, and that these undivided interests had by subsequent conveyances and reservations become vested in the demurrants, and that according to the deeds referred to and described in the bill, with perhaps one exception, the owners of the other estates and interests in the land continued to be owners of and presumptively taxed with the whole of the estates therein, including the oil and gas.
As these allegations apply generally to all undivided interests in the tracts so proceeded against, in stating the ease we need not go into details as to each particular tract, or recite how the present owners derived their respective interests therein.
The allegations of the bill, applicable to the undivided interests in all these tracts, relied on to show forfeiture for
So the question presented is, does the bill on demurrer show forfeiture for non-entry, entitling the state to sell, or requiring the owner or owners of said undivided interests to redeem the same?
It is not alleged that after said reservations or grants either the assessor, as the law would seem to require, ever valued said oil and gas interests for taxation, or that there was thereafter any reduction in the value of the land as entered before the severance of said undivided interests, or that the said interests had then any value for taxation beyond the value of the whole estate in the land; nor that the value of the land taxed as “surface” did not include the oil and gas and other mineral interests therein. With the exception noted, the owners of these tracts, entered as “surface”, for all the years for which forfeiture is claimed, continued to own un- ! divided interests in the oil and gas, and presumptively the i value of their interests therein was included in the valuation |of the land entered as “surface”, and certainly the general . allegation that these oil and gas interests or estates were not ■subsequently taxed will not overcome the presumption that ¡said'undivided interests continued charged to the owners of the estates entered as “surface.”
It is well settled by prior decisions construing statutes prior to chapter 35, Acts of 1905, relating to the subject, that while the whole of any estates in land, whether surface, timber, coal, oil or gas, after severance, may be the subject of separate assessment, that separate assessments or sale for
And according to these decisions presumptively when there has been no separate assessment of estates in timber, coal, oil,': gas or other interests in land, without a different showing, they are deemed to have been included in the entry of the land. As is said in Sult v. Hochstetter Qil Co.: “Taxation in the name of any person claiming the land in whole or in part under any given title prevents forfeiture, not only as to him and the portion of the land claimed by him, but as to all the land so taxed and all persons claiming the same or any part thereof under the same tilde.”
As the law was prior to 1905, thei*efore, in the absence of any allegation that the value of these undivided interests in the oil and gas separately owned were not included in the lands entered as “surface”, we think the bill is insufficient for not more specifically negativing the presumption that they were so included.
The fact that the other undivided interests in the oil and gas continued to be owned by the persons in whose names the lands were taxed as “surface”, coupled with the fact that assessments of undivided interests in such estates were not lawfful, overcomes we think the inference sought to be drawn from the alleged absence of separate valuation and entry thereof on the land books.
But the contention on behalf of the state is that section 39, of chapter 29, of the Code, enacted by chapter 35, Acts 1905, which stands in the place of section 25, chapter 29, Code of 1899, was intended to remove the disability of the earlier statute, and that as amended by the later act the assessor is now not only permitted, but when there has been a segregation of interests or estates in land, that it is his bounden duty to value and enter on the land books in the name of the respective owners thereof the whole, if owned bj' one person, or if divided, in the name of the owners of the undivided interests or estates, whether in the timber, coal,
Of course if the whole estate in the oil and gas or other mineral has once been separately assessed as pi’ovided by said section 39, of chapter 29, and the same or any part thereof is thereafter omitted from the land books for the requisite period, upon the principles of our decisions, the whole, not some undivided interest therein, would become forfeited for non entry and non payment of taxes, unless it could be shown that the part entex-ed, in fact, included the whole, but by mistake was erroneously entered as an xuidivided interest.
For the foregoing reasons we are of opinion to reverse the decree, with direction to sustain the demurrers of the respective demui'rants, but with leave to plaintiff, if so advised,
Reversed and remanded.