dеlivered the opinion of the Commission of Appeals, Section A.
We adopt the following statement of the case mаde by Justice Alexander in his opinion prepared for the Court of Civil Appeals:
“A. S. Victory and others brought this suit against the county judgе and county commissioners of Upshur County and others to restrain the collection of certain county and state taxes theretofore assessed against the royalty interest owned by the plaintiffs in certain land in said county. From the allegations contained in plaintiffs’ petition and the exhibits attached thereto, it appears that on January 1, 1932, the plaintiffs owned certаin land in Upshur County, which land had theretofore been leased by them to third parties for oil and gas mining purposes. The plaintiffs rendered said land for taxes to the county tax assessor, but indorsed on said rendition the following notation: ‘This does not include the 1/8 royalty under oil lease. The royalty is not subject to taxation against these lessors, see: Ehlinger v. Clark,117 Tex. 547 ,8 S. W. (2d) 666 ; Stephens County v. Mid-Kansas Oil & Gas Co.,113 Tex. 160 ,254 S. W. 290 , 29 A. L. R. 566.’ The county tax assessor aсcepted said rendition with the values as fixed thereon by said property owners. Thereafter during the same year said tax аssessor, at the time and in the manner and form provided by law for the assessment of unrendered real estate, separatеly listed and inventoried plaintiffs’ mineral or royalty interest in said land, placed the same on the rendered tax rolls of said county, and duly assessed same for the taxes levied for the year*32 1932, which assesment was thereafter duly approved by the commissiоners’ court of said county. Plaintiffs paid all taxes claimed to be due against said land under the voluntary rendition thereof as made by them, but refused to pay the taxes claimed to be due against their mineral or royalty interest in said land as assessed against same on the unrendered tax rolls of said county. It is the latter item of taxes that is here in dispute. The plaintiffs in their petition to restrain the collection of said taxes set out fully the terms of the oil and gas mining leases and sought to establish that they owned no such mineral or royalty interest in said land as was subject to taxation as real property. The trial court sustained a general demurrer to plaintiffs’ petition and upon the plaintiffs’ refusal to further amend dismissed the suit. The plaintiffs appealed.”
The Court of Civil Appeals affirmed the judgment of the trial court.
1 Application for writ of error was granted because of the pendеncy at that time in this Court of the case of Sheffield v. Hogg involving the same question. Every question presented in this case was later dеcided contrary to the contentions of plaintiffs in error by the opinion of this Court in Sheffield v. Hogg,
2 Plaintiffs in error contend, however, that the other question presented was not decided in that case. That question relates to the authority of the tаx assessor under the facts above stated to assess the royalty interest as unrendered property. The notation made by plaintiffs in error upon the rendition sheet is copied above. By it they expressly excepted their royalty and reprеsented that all their mineral interest had passed by determinable fee to the lessee. That this is the proper construction of the notation, is made certain when the cases cited as a part thereof are considered. In their pleаding in this case "it was alleged “ * * * which royalty interest was excepted from their voluntary rendition.” In the Sheffield-Hogg case this nota-' tion was placed on the rendition sheet: “Note: It is not the intention to render any of the oil, gas, sulphur or other minerais in the abоve lands, as said minerals were transferred, set over, sold and conveyed by Will C. Hogg, Miss Ima Hogg, Mike Hogg, and Tom Hogg to John Hamman pеr instrument dated June 6, 1913, recorded in Book 125, pages 53 et seq., of the
The same question was presented for decision in Bracken v. Van Zandt County,
In the case of Republic Insurance Co. v. Highland Park Independent School District, recently decidеd by this Court,
- Upon the authority of these cases, the judgment of the Court of Civil Appeals in this case should be upheld.
The question for decision is a tax question only. It therefore becomes unnecessary to write upon the question so well discussed in the briefs of what constitutes a severance of the mineral estate from the surface estate in land. Our holding is limited to this conсlusion: If a taxpayer, who owes the duty of rendering his property for taxation, voluntarily undertakes to exclude a portion thereof, even though such portion be an integral part of the whole, from his rendition sheet, the tax assessor is authorized tо treat that portion as unrendered property and proceed to list and assess same in accordance with thе statutes.
Both the trial court and the Court of Civil Appeals have correctly decided every question presented and their judgments are accordingly affirmed.
Opinion adopted by the Supreme Court February 24, 1937.