Ashe Carson Co. v. State

138 Ala. 108

• Court: Supreme Court of Alabama
• Decided: November 15, 1902
• Status: Published

Opinion

HARALSON, J.

As stated by the appellant’s counsel in brief, the main proposition in this case is, whether the interest acquired by appellant under the lease from the Bonifays was such a separate and special interest in land as would make appellants liable for taxes on the same under subdivision 1 of section 3911 of the Code, which provides that “Every separate or special interest in any land, such as mineral, timber, or other interest, when such interest is owned by a person other than the owner of the surface or soil,” is subject to taxation.

The defendant below, appellant here, on the 18th December, 1900, leased from R. A. and R. H. Bonifay, for turpentine purposes, all the pine timber fit for such purposes, on 9,130 acres of pine lands, — which lease was to terminate on the 1st of January, 1911., — whereby defendant had the right to enter on said lands, when and as they wished, and box, for obtaining turpentine, pine trees thereon, measuring ten inches in diameter at the butt, with the right and privilege of constructing and maintaining all rights of way, dirt roads, tram roads and railroads upon said, lands necessary for the proper manufacture, selling and hauling of the turpentine made, raised, bought, sold or handled by them; and also to construct and maintain such still locations as they might deem necessary; to have free use of all necessary wood, for their turpentine business; to erect for their use all necessary buildings and machinery on said lands, the buildings, at the end of the lease, to be the property of the lessors, and the machinery the property of the lessees, etc., etc.

The defendant pleaded the general issue, and also set up by special plea that the property named in the complaint and assessment was not subject to taxation, and that defendant had no taxable interest in said property. Issue was joined on the pleas and verdict rendered for the State, the jury finding the taxable value of the leasehold interest to be $7,000. Judgment was rendered against the defendant for the costs.

The statute above quoted, under which it is claimed the State has the right to tax the interest the lessees acquired under their lease as an interest in land, is one which must be strictly construed against the State. The purpose of the statute was to tax the ownership of the land, and when the title to some substantial part of the land is vested in one person, and the general title is vested in another, the interests are taxable separately.! it does not extend to a person who has a mere right to go upon land of another to derive some profit therefrom./ Construing the statute most strictly against the State (Cooley on Taxation, 266), it would seem that the right which was given to the lessees by the lessors, under their contract to take crude turpentine from standing trees, was not a special possessory interest in the land itself within the meaning of the statute. — Kennedy S. & C. Co. v. Sloss I. & S. Co., 137 Ala. 401. The turpentine was the' only thing to be acquired by the lessees from the timber ancl land. Under the lease the land and timber remained the property of the lessors. The sole object of the lessees in entering into the contract was to extract from the trees the crude turpentine, as a product from the land, leaving the trees and the soil to the lessors, the owners of the land, after the expiration of the lease.

The court erred in giving the general charge for the Stare, and in refusing a like charge for the defendant.

Reversed and remanded.