38 W. Va. 201 | W. Va. | 1893
In the month of September, 1892, the United States Coal, Iron & Manufacturing Company applied to the County Court of Randolph county to have certain coal-rights held by it as assignee of certain leases or contracts stricken from the assessment-books as improperly charged against it, and as improperly assessable. The petition was predicated upon the following facts :
In the year 1872 one Isaac Carpenter by contract took from Crawford Scott and several others the right to mine the coal from several different tracts of land aggregating one thousand one hundred and fifty one acres, all of which contracts were identical in the conditions and provisions contained therein, leasing to the party of the second part all of the coal and veins of coal in, under and upon said respective tracts of land with the right of entering upon said land and boring and exploring for said veins, and also the right to cut timber from the said lands for mining purposes, for such term of years as should be required to mine and remove all the merchantable and marketable coal under and upon said tracts of land which could be mined and taken out without extraordinary expense and outlay ; — and for all coal mined and taken out under said leases the parties of the first part should be paid at the rate of ten cents per ton for each and every two thousand four hundred pounds semi-annually on the 1st day of January and July in each year; — and in case no coal should be mined under said lease for the term of ten years from the date thereof the party of the second part might, at his or their option, declare the terms of said leases at an end, and surrender the same to the party of the first part, but
A copy' of one of said agreements was exhibited with said petition, and, as before stated, it was agreed that said agreements were identical. An examination of this agreement, which was executory, and under which nothing appears to have been done (although more than twenty years have elapsed since it was made) shows that it was not under seal; and our statute (Code, § 1, e. 71) provides that no estate of inheritance or freehold or for a term of more than five years in lands shall be conveyed unless by deed or will, etc.
In this case, however, an attempt seems to have been made to confer upon the grantee the right for an indefinite time to mine and remove the coal underlying these lands, and, although nearly twenty years had elapsed, at the time this attempted assessment was made, without anything having been done by the party' of the second part or his assignee in compliance with its terms, yet said company
In view of the statute, then, can we say, that, when this assessment was attempted to bo made, iu the year 1892, the plaintiff in error was the holder of any coal-interest in said lands, or that it was properly assessed as such? At best these contracts could only be regarded as leases of the mineral rights under the respective tracts of land, not un-derseal, for a term of more than five years, in direct contravention of the statute, which provides that “no estate of inheritance or freehold or for a term of more than five years in lands shall be conveyed unless by deed or will and, more than ten years having elapsed since the date of said contracts, tlife plaintiff in error might at his option declare the terms of the lease at an end, and surrender the same to the party of the first part.
If the plaintiff in error should seek to enforce the right to mine and-remove the coal from said lauds in pursuance of the terms of said contract, it might be met and defeated upon the ground that the contract was not under seal, and more than five years had elapsed since the execution of said contract; and should the party of the first part seek to enforce the terms of said contract against the plaintiff in error, it might be met and defeated by the fact that the party of the second part had the right, after the lapse of ten years, to declare the terms of the lease at an end, and surrender the same to the party of the first part.
At the time, then, this assessment was sought to be made it could not be said that the plaintiff in error held any coal or mineral right in said lands, which could be enforced by it in a court of law; and, more than ten years having
It is frequently the case that the mineral and coal in a tract of land are held by one party while the surface is held and owned by another, and it is when this is the case that the mineral and coal shall be assessed separately. The owner of the land owns it from- the center of the earth to the heavens, and the coal is but a part of the land, and if a man rents a part of his land the law does not require the lessee to be assessed with the taxes on the portion leased, but the assesssment is made to the owner.
That section 4, c. 36, of the Acts of 1891, in providing for the re-assessment of lands, in speaking of coal privileges or interests hold by a party or company exclusive of the surface, meant and intended coal-privileges or interests owned by such party or company, is apparent from the context, for the same section provides that the commissioner, in order to assist him in ascertaining and fixing the value of said lands,and mineral, shall, when practicable, examine the owner of said lands, not the lessee, under oath, etc.
Section 8, c. 29, of the Code provides that the clerk of the County Court, in making out the land-books, shall correct errors and mistakes, which he may discover in any such land-books, as to thenara.es of persons properly charge
For these reasons my conclusion is that the Circuit Court erred in refusing the plaintiff in error the relief prayed for in its petition, and in dismissing its appeal. -The judgment complained of is therefore reversed, and the canse is remauded to the Circuit Court of Randolph county for further proceedings to be had therein, with costs to the plaintiff in error.