Scales v. Commissioner

H. L. SCALES, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Scales v. Commissioner Docket No. 11408. United States Board of Tax Appeals 10 B.T.A. 1024; 1928 BTA LEXIS 3978; February 27, 1928, Promulgated *3978 1. Amounts expended for labor determined and allowed as a deduction. 2. A grant of a perpetual easement and right of way to a levee improvement district, by which the owner was deprived of practically all beneficial interest therein and was merely the holder of the bare legal title, will be considered a sale for the purposes of this proceeding. J. M. McMillin, Esq., for the petitioner. Shelby S. Faulkner, Esq., for the respondent. MILLIKEN *1024 This is a proceeding for the redetermination of deficiencies in income and profits taxes for the years 1920, 1921, and 1922, in the respective amounts of $3,368.89, $3,365.35, and $12,035.60. At the hearing, the parties stipulated that for the years 1921 and 1922 there is no deficiency. The only errors complained of are (a) that respondent included in gross income for the year 1920 an amount received by petitioner in consideration of the sale of a perpetual easement to a certain levee improvement district, and (b) refusal of respondent to permit petitioner to deduct from gross income for 1920 certain amounts expended for labor during said year. It was further stipulated that the net income*3979 for the year 1920 was $9,679.51, subject to adjustment resulting from the decision of the Board concerning the two assignments of error urged by the petitioner. *1025 FINDINGS OF FACT. The petitioner is an individual with his principal office at Dallas, Tex., and is a large landowner and farmer. He was a large employer of farm labor and expended on that account during 1920 the sum of $1,918.59, but of this amount the respondent allowed only $643.19 as a reduction from gross income. The petitioner in 1905 purchased a tract of land in Kaufman County, Texas, containing 6,000 acres, for the sum of $113,000, being at the rate of $18.83 per acre. About 4,000 acres were upland and about 2,000 acres were river or creek bottom land subject to overflows from high water. The land was used for cultivation and grazing purposes. The bottom land was about two miles wide and frequently overflowed, so in order to improve the situation, the petitioner and other landowners caused to be organized Kaufman County Levee Improvement District No. 4. As a result of the levees and improvements constructed by this Levee Improvement District, the water which formerly spread over two miles*3980 of bottom land has been forced into a channel 1,600 feet wide. On October 7, 1920, the petitioner executed a writing, the material parts of which are as follows: That I, H. L. Scales, of Kaufman County, Texas, for and in consideration of the sum of Forty Eight Hundred and Sixty-Six ($4,866) Dollars, to be paid by Kaufman County Levee Improvement District No. 4 of Kaufman County, Texas, as follows: $4,866.00 cash in hand paid, the receipt of which is hereby acknowledged, have Granted, Sold, and Conveyed, and by these presents do Grant, Sell and Convey, unto the Kaufman County Levee Improvement District No. 4, of Kaufman County, Texas, the Right of Way, through and over my present surveys of lands situated in said Kaufman County, Texas, and more particularly described by field notes as follows: - * * * That said Kaufman County Levee Improvement District No. 4, shall have a perpetual easement and right-of-way over my lands above described, together with free and uninterrupted ingress, egress to and for the said Kaufman County Levee Improvement District No. 4, its assigns ans with its employees, servants and tenants and carts, wagons, carriages, machinery and other vehicles, horses, *3981 mules and engines, as by said Kaufman County Levee Improvement District No. 4, shall be necessary or convenient at all times and seasons forever, in, along, upon and out of said right-of-way, and shall also have the use of the wood, timber, water, soil, stone and anything else along said right-of-way, to be used in connection with the construction and maintenance of its levee by said Kaufman County Levee Improvement District No. 4, as contemplated by said levee district, and that said Levee shall have the right to drain and ditch said land and use any material, etc., necessary for the construction and maintenance of said levee and for any and all purposes for the better welfare and maintenance of said levee, which is being constructed by said District, and said Kaufman County Levee Improvement District No. 4, shall have *1026 complete control and supervision of said right-of-way, above described at any and all times. That the owner of said land may, under the direction and supervision of the District Supervisors of said Kaufman County Levee Improvement District No. 4, place stock, etc., upon said Kaufman County Levee Improvement District No. 4, and right-of-way, for pasturage, *3982 etc., but that whenever the District supervisors aforesaid, deem it best they may notify the owner of said stock and he shall remove same immediately from off said levee and right-of-way. That in consideration of the amount of money above-mentioned, said Kaufman County Levee Improvement District No. 4, shall be exempt from any and all claim and right for damages or any liability, etc., to any other land that I may own to be sustained hereafter on account of the construction and maintenance of said levee which is now being constructed by said Levee District. It is also agreed and understood that the District Supervisors may remove all timber and obstructions lying on said lands, and keep the same clear of obstructions and timber, if necessary, but that the owner of said property shall have the right to said timber and wood, and it shall not interfere with the ownership and possession and use of said land by reason of said obstructions being removed. The rate per acre received by the petitioner was $15. The acreage sold was 324.4 acres, and total sum received was $4,866. As a result of this conveyance and the work done by the Levee Improvement District, the land over which*3983 the easement and right of way was granted is covered with water about 10 months every year, usually from 8 to 12 feet deep, and at no time since the construction of the levee has it been free of overflow for more than 2 months at a time. Prior to the construction of the levee the bottom land was used occasionally for grazing purposes and some of it for cultivation. Since the construction of the levee that part included within the levee has been useless for purposes of cultivation or grazing and has not been so used by the petitioner. The high water killed the grass, and the timber on it was not worth the cost of cutting and hauling to market. On March 1, 1913, this land was of the fair market value of $20 per acre, the acreage sold was 324.4 acres at $15 per acre, resulting in a loss to the petitioner of $5 per acre, making a total loss of $1,622, using the March 1, 1913, value as a basis. The cost of the 324.4 acres was $18.83 per acre, or a total of $6,108.45, resulting in a loss to the petitioner of $3.83 per acre, or a total of $1,242.45, using the cost as the basis. The respondent did not allow a loss on either basis, but includes in petitioner's income $4,866 proceeds*3984 of the sale to the Levee Improvement District. OPINION. MILLIKEN: Relative to the additional deduction of $1,275.40 paid for labor performed on the farms of the petitioner, we think the *1027 weight of the evidence supports the claim. He kept no regular books of account in the commercial sense, but had a check or check books, and kept a small pocket time or memorandum book, in which from time to time he made entries of expenditures for labor and other items. This latter book had been lost or destroyed at the time of the hearing, but petitioner testified that he kept the book and that it showed the expenditures claimed, that the entries were correct and that in preparing his return for 1920 he used it. Petitioner made an unsuccessful search for the records which he used in making his income-tax returns and we are of the opinion that his uncontradicted testimony warrants the allowance of the additional deduction claimed. The decision on the remaining assignment of error depends on the character and effect of the written instrument executed by the petitioner, the material parts of which are set forth in the findings of fact. Under article 7972, Vernon's Texas Statutes, *3985 levee improvement districts may be created for the purpose of reclaiming lands from overflow, to control the distribution of waters, to straighten streams, and to conserve and develop the natural resources of the State. Article 7979, Vernon's Texas Statutes, classifies such a levee improvement district as a governmental agency and a body politic and corporate. Under article 7981, Vernon's Texas Statutes, levee improvement districts are authorized to acquire lands or waters in fee simple or to acquire an easement or right of way to, over, or through the same. The levee improvement district in the instant case was organized by the petitioner and other adjoining landowners for the purpose of reclaiming their lands from overflow. From an examination of the written instrument herein, it will be seen that the bare legal title to the land was not conveyed by the petitioner, but the petitioner granted valuable and exclusive rights to the grantee. In the first paragraph after the description, it is provided that the District shall have a perpetual easement and right of way with free and uninterrupted ingress and egress to its employees, servants, tenants, carts, wagons, carriages, *3986 machinery and other vehicles, horses, mules, and engines as shall be necessary. It is further provided that the district shall have the right to use such wood, timber, soil, or stone on the right of way as may be necessary in the construction of the levee, and that it should have the right to ditch and drain the right of way. Complete control and supervision of said right of way at any and all times is given the District by the writing. The only rights retained by the owner are the right to pasture stock on said right to way and the right to remove from it such *1028 timber and wood not used by the district. The right of pasturage above-mentioned was subject to the approval of the district supervisors. Under the provisions of this instrument it is plain that about the only thing or interest remaining in the petitioner is the bare legal title and that this is of no practical or market value. According to the evidence and findings of fact, the petitioner has been deprived of all beneficial interest in the land, and it is useless for farming or grazing purposes. Under such circumstances, many courts hold that the granting of such an easement is tantamount to a sale of*3987 the fee. We have been cited to no case in Texas passing upon this question, but we find the general rule stated by the following authorities and text writers. It is stated in 19 Corpus Juris, 909, as follows: It is true that in some cases the grant of an estate designated and described only by the particular use or purpose for which the land is appropriated will be held to pass a fee. Thompson on Real Property, sec. 285, in part, is as follows: An easement is a species of incorporeal hereditament, and as such it lies in grant, not in seisin. Although imposed upon corporeal property, an easement carries no corporeal interest in or right to the land. But where the whole exclusive use of a thing is obtained, the right becomes an interest, and there is no longer an easement. Cooley on Taxation, sec. 636, says: When an easement in land taken for a public use involves practically the exclusive possession and control of the property by the public and leaves the original owner with no right of substantial value, the property is exempt from taxation although he remains the owner of the fee. Again in sec. 1097, the same author says: Where a grantor retains no beneficial*3988 interest in the land conveyed, his only authority being to enter upon it for a special purpose, an assessment to him is erroneous. The case of ; , was a taxation case from the City of New York. It appeared that in 1831 one Ruggles was the owner of a considerable tract of land in the neighborhood of and surrounding what is now known as Gramercy Park, and that in order to make the lots salable he conveyed a certain portion thereof to trustees to the end that they and their successors should enclose and lay out and preserve, maintain and keep it as an ornamental park or square for the benefit of the owners of the surrounding lots and as a place of common resort and recreation. Subsequently, Ruggles conveyed lots of land surrounding Gramercy Park and the purchasers thereof held their property subject to the terms and conditions of the deed creating the *1029 trust to the park property. The defendants were the commissioners of taxes and assessments of the City of New York, and for the years 1903, 1904 and 1905 the property known as Gramercy Park was assessed in the sum of $500,000, and for the*3989 last year in the sum of $750,000. The proceeding was for the purpose of setting aside this assessment upon the ground that the trustees were the owners merely of the bare legal title and that they had no beneficial interest therein, and that, therefore, the property was not assessable against them for taxation purposes. The court so held, and in its opinion said: We then come to the consideration of the objection urged by the relators against these assessments, which is that, when an easement is carved out of one property for the benefit of another, the market value of the servient estate is thereby lessened, and that of the dominant increased practically by just the value of the easement. The respective tenements should thereafter be assessed accordingly; the determinate question of the assessable value of each of the properties affected being its market value, or the amount for which it would sell under ordinary circumstances. By section 889 of the Greater New York Charter (Laws 1901, c. 466), it is made the duty of the deputy tax commissioners in arriving at their conclusions as to the assessable value of taxable property, to state, under oath, to the board, the sum for which, *3990 in their judgment, each separately assessed parcel of real estate, under ordinary circumstances, would sell if they were wholly unimproved. Under this provision, it is the duty of commissioners of taxes and assessments to assess the property year by year at its actual market value, no more, no less. People ex rel. M.R. Co. v. Barker, 146 N.U., 312, . In this case it is apparent from the statement heretofore made, that the relators' property cannot be sold, under ordinary circumstances, for any sum whatever. No person buying this property would acquire any beneficial interest therein. Assuming that he could get legal title to it from the trustees, subject to the easements, his title would simply be a naked one with none of the usual advantages attendant upon the ownership of real estate; he would simply hold a title to a piece of property from which he could derive no benefit and in which he could have no rights of enjoyment, but which would be devoted entirely to the enjoyment and use of the surrounding property owners. A similar case is that of *3991 ; . There certain property had been taken by condemnation for the purpose of abolishing a railroad grade crossing, the fee still remaining in the former owners. The land was assessed for taxation against the title holders, the tax was not paid, and, after a sale for taxes, the title was conveyed to Lancy. In a contest between him and the City of Boston, the court held that Lancy acquired no title under the tax sale because the holders of the naked legal title had no beneficial interest in the land and it was not assessable against them for taxation. The court said in part: The petitioner's title is under a sale for taxes assessed to the former owners on May 1, 1897, and we must consider the effect of such a tax upon the rights of the public and of the railroad company, previously acquired. Each of the titles created by the taking was only an easement, and the fee remained in *1030 the former owners. But the easement in each case gave paramount and practically exclusive rights in the land taken. An appropriation of land to the use of the public for a highway under the right of eminent domain creates*3992 an interest in the public which cannot be affected by a subsequent attempt to tax the land to the owner of the fee. The various provisions as to taxation of real estate and the collection of taxes are inapplicable to property held for such a public use. It has often been decided that lands appropriated to such uses are exempt from taxation. * * *. We are not aware that there has ever been an attempt to tax the fee held by an owner of land which was taken and used for a highway or railroad, or that the court has, in terms, decided that the interest of the owner of the fee in such a case is exempt from taxation. But the implication from the cases is to that effect, and we are of opinion that where an easement in land taken for a public use involves practically the exclusive possession and control of the property by the public, and leaves the original owner with no right of substantial value, the property is exempt from taxation, although he remains the owner of the fee. * * * In the case of ; , the principle is laid down that the object of construction is to arrive at the intention of the parties, *3993 that technical rules should not be Applied, and that in case of a deed the entire instrument must be considered. In that case the writing under consideration was headed "Deed of Right of Way," but the granting clause was to the effect that the grantor "hath given, granted, bargained and sold to the Cumberland & Ohio Railroad Co. so much of his lands in said county as is required for the use of the road." This was held to pass the absolute title. Relative to the nature of a right of way for a railroad, the Supreme Court of Iowa, in ; , said: The easement is not that spoken of in the old law books, but is peculiar to the use of a railroad, which is usually a permanent improvement, a perpetual highway of travel and commerce, and will rarely be abandoned by nonuser. The exclusive use of the surface is acquired, and damages are assessed, on the theory that the easement will be perpetual; so that, ordinarily, the fee is of little or no value, unless the land is underlaid by quarry or mine. In *3994 ; , the question arose as to the nature of a written instrument conveying certain rights to a drainage district. The action was one to quiet tile, and on a question of adverse possession it was contended by the appellant that the conveyance to the drainage district was, in effect, a lease, and that the possession of the district holding under him was the possession of appellant. The instrument conveyed "The perpetual easement and right of way for the construction, maintenance, building and repairing of ditch No. 1," and contained the following provision: This conveyance being made to said grantees as a right of way for said ditch, which is not to exceed 100 feet in width across said premises, but only so much of said width is to be used in the construction of said ditch and placing the waste banks as shall be absolutely necessary for said ditch purposes. *1031 The said grantor hereby expressly reserves to himself, his heirs and assigns, the exclusive right at all times hereafter to enter upon, use, and occupy and enjoy the said strip of ground for hunting and fishing purposes, and for all other uses*3995 and purposes, of every kind and character, which will not and do not interfere with or impair the use and occupation thereof by the grantees as a ditch and levee for drainage purposes. The court said: This instrument is not a lease, as appellant contends. It is the conveyance of an easement or right of way across the premises, based upon whatever right or title appellant had, and the district went into possession under this deed. It did not hold this strip for appellant, and its possession was not the possession of appellant. In ; , where a cemetery company had been assessed for street improvements, it appeared that the company had conveyed a part of the property assessed to lot holders, retaining certain rights only. As to these lots the assessment was held illegal, the court saying: In this respect, I think the commissioners in making this assessment applied an incorrect legal principle. The only authority which the cemetery company could exercise over the portion conveyed was the right to enter upon it for the purpose of keeping the grounds in repair. It had no other beneficial*3996 interest in it. As to that portion the widening of the avenue could confer upon the relator no appreciable benefit. In , it was said: A grant of the exclusive use of lands, as it excludes the grantor from all benefit in it, is a grant of the soil itself, and not a mere easement. In view of these authorities and the facts that the petitioner has surrendered perpetual and complete control of the 324.4 acres involved herein to the Levee Improvement District, and that it is useless for purposes of cultivation or grazing because almost always overflowed by water, we must hold, for the purposes of this proceeding and for taxation, that the conveyance to the Levee Improvement District was tantamount to a sale and that petitioner has no beneficial interest therein. In all likelihood he could not sell the bare legal title for anything of value. It follows that the consideration received, to wit, $4,866, should not be included in this income for 1920, and that there should be deducted from the remaining gross income the sum of $1,242.45, the amount of petitioner's loss between the cost of the property and the amount he received. *3997 . Judgment will be entered on 15 days' notice, under Rule 50.