McCormick v. Berkey

86 A. 97, 238 Pa. 264, 1913 Pa. LEXIS 954

Opinion

Opinion by

Mr. Justice Mestrezat,

This was a proceeding instituted under the Act of June 10, 1893, P. L. 415, for the purpose of determining the rights and title of the plaintiffs and defendants to the minerals underlying 192 acres and 113 perches of land in Quemahoning Township, Somerset County. Notwithstanding the numerous assignments of error there are but two questions for consideration here and both were properly disposed of in the court below. The exhaustive opinion refusing judgment non obstante veredicto dealing with the facts and law of the case filed by the learned trial judge renders an extended discussion unnecessary on this appeal. The appellants contend (a) that the court had no jurisdiction to frame an issue under the Act of 1893, and (b) that the conveyance of a part of the tract of land, with a reservation of the minerals thereunder, severed both surface and minerals from the residue for the purpose of taxation. The other questions raised in the court below dealt with matters of fact and were properly submitted under the evidence. They need not be considered here.

The pleadings in the case conferred jurisdiction on the court to frame an issue under the Act of 1893. The amended petition, accompanied by an abstract of title made part thereof, averred, in addition to the other necessary jurisdictional facts, that the 245 acres of land were conveyed to Henry McCormick’s predecessors in title and subsequently to him, “excepting and reserving, however, under the operation of this grant of the tract of land above described 192 acres, 113 perches of the surface of said tract of land” which had previously been conveyed to one Holsopple; that the respondents claim title to the minerals and mining privileges under the 192 acres and 113 perches of surface with mining privileges by virtue of a tax sale made in 1900; that McCormick and his predecessors had held the title to said minerals and had continuous possession of them for more than twenty years prior to the institution of these proceedings. The answer of the respondents averred that they held title to the minerals in controversy by virtue of a sale of such as unseated mineral lands made by the treasurer of Somerset County for the nonpayment of taxes assessed thereon, and that they were now and since they acquired title in 1904 had been in continued and uninterrupted possession of said minerals.

The petition discloses a prima facie title in the petitioners to the minerals in dispute. They are and were undeveloped and unimproved, and were not in the actual possession of any person. They were, as appears by the answer, assessed and sold as unseated lands. The only possession the respondents could have would be such as followed and were incident to the tax title which they acquired. This is not sufficient, however, under the averments of the petition, to give them a possession which will oust the jurisdiction of the court under the Act of 1893. It will be observed, as appears by the petition and abstract of title, that in all the conveyances subsequent to the Holsopple deed, the tract conveyed was described as a single body of land of 245 acres excepting and reserving the surface rights in 192 acres conveyed to Holsopple. This vested title in McCormick to the residue of the entire tract which was about 53 acres of surface and all the minerals underlying the whole tract of 245 acres. These lands were a single body. It is true they were composed of both surface and mineral lands, but they were all one compact body of land or real estate belonging to a single owner. While the surface of 192 acres was severed from the underlying minerals by the Holsopple deed, those minerals were not severed from the entire tract of 245 acres conveyed to McCormick by the Johnstown Lumber Company. It is not claimed that the 53-acre tract, in possession of McCormick and his trustees, was unseated, and hence being seated prima facie it made the residue of the entire tract conveyed to and held by him seated. We think the pleadings show a prima facie title to the minerals in dispute in the petitioners which casts the possession on them, and the answer denying both title and right of possession, the case is within the Act of 1893, and the court was right in assuming jurisdiction.

The appellants further contend that the conveyance of the 192 acres to Holsopple with the reservation of the minerals thereunder severed both surface and minerals from the residue of the entire tract for the purpose of taxation. Many of the requests for instruction presented to the court below are predicated upon the correctness of this proposition. They were all disposed of by the learned trial judge in holding that the deed to Holsopple severed the surface of the 192 acres from the minerals, but that it did not sever the minerals thereunder from the residue of the whole tract. On this point the learned judge said in his charge, whieh is the subject of the second assignment of error, “that this deed did not work a severance of the minerals underlying the part of the surface sold to John Holsopple, from the other part of the 245-acre tract, and that when the Johnstown Lumber Company conveyed to Henry McCormick it conveyed to him one entire estate, containing 245 acres, subject to the surface rights in the 192 acres which had been conveyed to John Holsopple and the privileges in the coal underlying the same surface.” For the purposes of taxation, this ruling was entirely correct. The entire tract of 245 acres, prior to the Holsopple conveyance, was seated land, was assessed and taxes were paid thereon. After the conveyance, Holsopple paid taxes on the surface he had purchased, and the residue of the larger tract was assessed and taxes paid thereon by the owners. It is true that it was assessed as 53 acres, but the number of acres was only descriptive for the purpose of identifying the tract, and the seating of that part of the residue made it all one seated tract of land. It was the whole of the residue of the tract regardless of the number of acres, and not 53 acres of land, that was included in the assessment for the purposes of taxation. It was the residue of the tract after deducting the surface rights in Holsopple that the taxing officers assessed, and on which McCormick and his predecessors in title paid taxes. If instead of selling the 192 acres of the surface to Holsopple the owner had sold 192 acres of the coal under the same surface it certainly goes without saying that the surface of the 245 acres and the remaining 53 acres of coal would have been assessed not separately but as one body of land. It is the duty of taxing officers to assess the entire adjacent real estate holdings of the owner, not severed or detached by his own act, as a single body, and they have no authority to divide them and assess them severally for the purposes of taxation: Brown v. Hays, 66 Pa. 229; Wilmoth v. Canfield, 76 Pa. 150; Scranton v. Gilbert, 16 W. N. C. 28. This rule applies where a tract of land has been assessed as a whole and part of the surface or minerals has been sold. The residue in the hands of the grantor or his grantee is one body or tract of land and should be assessed as such for the purposes of taxation. It is true that the owner of land may, by proper conveyance to another, sever the minerals from the surface and that each will thereafter constitute a separate and distinct estate taxable as such. That is not the proposition confronting us in this case. Here, we do not have the owner of a tract of land selling either the entire surface or the entire mineral strata, but the owner selling the entire tract and reserving a part of the surface. What was reserved or not sold by the grantor was severed from the residue of the tract, but the whole of the residue, surface as well as mineral, continued to be a single body of real estate, the title to which was vested by a single conveyance in a subsequent owner. Under the settled rule, therefore, it was the duty of the taxing officers to assess the surface and the minerals together as an entire body of real estate belonging to the owner. There was no authority in law for separating the minerals from the surface and assessing them separately. The assessment of the 53-acre tract was the assessment of the surface and all the minerals, and the taxes paid under such assessment were the taxes on the whole body of land.

It follows from what has been said that the act of the assessor in assessing the 192 acres of minerals as unseated land was wholly without warrant of law and void. The tax sale, therefore, passed no title to the grantors of the defendants, and the latter have no right to the possession of the minerals in dispute.

The judgment is affirmed.