In re Appeal of Colby

Ladd, J. In conveying 160 acres of- land, appellant. Charles H. Colby, excepted therefrom all coal and other minerals beneath the surface, and in the spring of 1917, the assessor assessed the value of the “coal under” the several 4Q’s at $1,200 each. The board of review reduced this to $800, and the district court further reduced the assessment against the “coal, rights and appurtenances thereto owned by the complainant,” to $2,000. Section 1308 of the Code declares that all property, real and personal, is subject to taxation, and Paragraph 8 of Section 48 of the Code defines land, real estate, and real property as including Hands, tenements, hereditaments, and all rights thereto and interests therein, equitable as well as legal.” It will be noticed that the exception, or reservation, is of all coal in place, and that all provisions with reference to removal of same are additional thereto. Minerals beneath the surface may be made the subject of separate ownership, either by a grant of the minerals by the owner of the land, or by a grant of the land excepting the minerals; and thereby, an estate in fee simple is created in the minerals, as corporeal things real. 1 Tiffany on Real Property, Section 219; Snoddy v. Bolen, 122 Mo. 479; Marvin v. Brewster Iron Min. Co., 55 N. Y. 538; Sloan v. Lawrence Furnace Co., 29 Ohio St. 568; Manning v. Frazier, 96 Ill. 279. It is equally well settled that, when the fee in the mineral has been separated from the fee in the surface, the fee or interest in the former is assessable and taxable to the .owner thereof, as real estate. This much is settled by the statutes heretofore referred to; for surely, the title to minerals in situ constitutes an interest in land. See In re Major, 134 Ill. 19 (24 N. E. 973); Kansas Nat. Gas Co. v. Board of Commissioners, 75 Kan. 335 (89 Pac. 750); Wolfe [1107] County v. Beckett, 127 Ky. 252 (17 L. R. A. [N. S.], 688, and note collecting the cases). It is to be presumed that all “coal and iron and minerals on or under said land, including the oils of all kinds,” and the right to enter upon said land to mine these, were of some actual value. The appellant does not controvert this; but contends that, if coal exists beneath the surface, this is unknown to anyone, and for this reason, the assessment is excessive and unreasonable. No coal had been mined from the land. No tests had been made to ascertain whether there was coal therein. Oolby testified that the reservation or exception was included in the deed in the hope that coal or other minerals might be found, though he had never heard of their existence in the land; that the nearest railway switch was 4 miles distant, and the land 10 miles from the nearest town. Swanson, a mining and civil engineer, testified to having had 15 years of experience in prospecting for coal, and testified that, ordinarily, options were taken on land, and the existence of coal ascertained by drilling; that the value of coal beneath the surface depended on the quantity of the coal, its quality, and its availability for the market; that, to be workable, the vein must be not less than 3 to 3% feet thick; that its value can only be ascertained on a tonnage basis, when being removed; that a roof of sufficient strength to hold the soil above is essential to the mining of-the coal; that a country mine is of little or no value; that, in this particular region along the Pes Moines Eiver Valley, coal often lies in pockets, and in Monroe County, there are often what are known as faults, more or less extensive, being rock, or other substances, instead of coal. The witness further testified that, even when tested with drills, and coal is found, it usually turns out better or worse than figured, and that there is much uncertainty as to quality, and, even when prospected, it cannot be told from a single [1108] test whether there are merely a few acres of coal or a great many; that the value of coal under the land not prospected is purely speculative; and that, without prospecting, the probable existence of coal is mere matter of chance. All this was corroborated by Shivers, another expert; and the other evidence was that only by drilling could it be ascertained whether coal existed beneath the surface, and that, in Monroe County, the existence of coal at one place did not indicate that it was to be found at another, near by. Witnesses called by defendant, after drawing attention to the existence of country mines near by, and describing them, expressed the opinion that coal existed beneath the surface of the land in controversy, and that it was worth $25 or $80 per acre, they supposed, or something like that; but admitted that they knew nothing about there being any coal in said land, nor did they have knowledge that it extended to any considerable extent beneath the surface of the adjoining land. Thus, Cooley was asked: “You do not know that there is any coal at all on this Jeffers land, do you? A. I do not know a thing about it.” Pearson was asked: “If there is coal under the Colby land, you do not know it? A. I do not.” The other witness called by appellee, Maddy, was equally candid in saying that he knew nothing of the existence of coal there. This evidence leaves no doubt that there may be coal under this land, but that no one has any reasonable ground for so saying. The witnesses testifying in behalf of appellee based their conclusions on the inference that, because coal is found in adjoining land, it must exist beneath the surface of the land in question; but the experts — and they are not contradicted — were of opinion that such an inference was unwarranted. Whether coal exists in the described land, and is retained in situ by appellant, under the exception contained in the conveyance, is pure matter oí [1109] conjecture; and we are of opinion that the assessment should not exceed a nominal sum against each 40, as one dollar; and the assessment is ordered reduced accordingly. —Modified and affirmed. • Preston, C. J., Evans and Salinger, JJ., concur.