People ex rel. Carrell v. Bell , 237 Ill. 332 ( 1908 )

Mr. Justice Carter

delivered the opinion of the court:

This is an appeal from a judgment of sale entered in the county court of Cumberland county for taxes levied on a mining right in eighty acres of land in that county. The right is based on a certain instrument known as an oil and gas lease, dated October 27, 1905, signed by Charley M. and Rachel E. Queen, granting to one Priddy, his heirs, successors and assigns, in consideration of one dollar and the covenants of said lease, “all the oil and gas in and under the following described premises, together with the exclusive right to enter thereon at all times for the purpose of drilling and operating for oil, gas or water, and to erect, install and maintain all buildings and structures, machinery and appliances, and lay all pipes necessary for the production, storage and transportation of oil, gas or water upon and from said premises. Excepting and reserving, however, to the lessor the one-eighth (}i) part of all oil produced and saved from said premises, to be delivered in the pipe line with which the lessee may connect his wells. * * * To have and to hold the above premises for the term of one year, and so long thereafter as oil or gas is found on said premises in paying quantities.” The lease also contains provisions, among others, as to the payment of rent in case only gas is found or in case the well is not completed within sixty days. It appears from the stipulation of facts filed by the parties hereto in the trial court, that the lease had been duly assigned to and was owned by the Campbell Oil Company, the members of which are appellants herein, and that said company had drilled a well on said land which was then producing oil in paying quantities ; also, that the owner of the fee had paid the taxes on the fee, amounting to $14.10.

Sections 6 and 7 of chapter 94, (Hurd’s Stat. 1905, p. 1399,) in relation to taxing mining rights in this State, are as follows:

“Sec. 6. Any mining right, or the right to dig for or obtain iron, lead, copper, coal, or other mineral from land, may be conveyed by deed or lease, which may be acknowledged and recorded in the same manner and with like effect as deeds and leases of real estate. ,

“Sec. 7. When the owner of any land shall convey, by deed or lease, any mining right therein, such conveyance shall be considered as so separating such right from the land that the same shall be taxable separately, and any sale of the land for any tax or assessment shall not include or affect such mining right.”

Appellants contend that the term “other mineral,” in said section 6, only includes such minerals as are ejusdem generis with iron, lead, copper and coal, and does not include oil and gas. They also contend that as this statute was passed in 1861, and as oil and gas had not at that time been the subject of legislation or court action, the legislature could not have intended those products to be included in the term “other mineral.” We are unable to agree with these contentions. Section 6, above quoted, provides that “any mining right” may be conveyed by lease, and section 7 provides that when such mining right has been conveyed it shall be considered as so separated from the land that it is taxable separately. Does this oil lease properly come within the term “mining right?”

A mine is an excavation in the earth for the purpose of obtaining minerals; (2 Bouvier’s Law Diet.—Rawle’s ed.— 413;) an excavation, properly under ground, for the purpose of taking out some useful product. (Standard Diet.) A mining right may properly be deemed a right to excavate in the earth for the purpose of obtaining minerals or other useful products. In some of the States petroleum forms a very valuable part of the natural wealth and has been given careful consideration by the courts, and they have uniformly held, so far as the authorities we have examined show, that it should be classed as a mineral. (Appeal of Stoughton, 88 Pa. St. 198; Murray v. Allred, 100 Tenn. 100; Gill v. Weston, 110 Pa. St. 312; Williamson v. Jones, 39 W. Va. 231; Wilson v. Youst, 43 id. 826; Kelly v. Ohio Coal Co. 49 N. E. Rep. (Ohio,) 399; Blakely v. Marshall, 174 Pa. St. 425; 2 Bouvier’s Law Dict. 545.) The case of Dunham v. Kirkpatrick, 101 Pa. St. 36, is cited by appellants as tending to uphold the contrary view. While it holds that the reservation of "other minerals” in a deed did not include petroleum in that instance, it expressly states “it is true that petroleum is a mineral; no discussion is needed to prove that fact.” This court has recently decided that oil and gas are classed as minerals, though they may have peculiar attributes not common to other minerals which have a fixed and permanent situs. (Poe v. Ulrey, 233 Ill. 56; Watford Oil and Gas Co. v. Shipman, id. 9.) It is true that when the statute above quoted was passed, petroleum was not as extensive an article of commerce in this State as it has since become. That, however, does not exclude it from the act any more than it would gold, mica or some other mineral that might be discovered. In Gill v. Weston, supra, the same argument was advanced, and the court there said: “It matters not that the act of 1855 was passed before petroleum was discovered. It is a mineral substance obtained from the earth by the process of mining, and the land from which it is obtained may with propriety be called mining land.”

Manifestly, the mining right created by this lease is property and should be taxed. Appellants have cited authorities holding that it is not such a right that it can be taxed as real estate. (State v. South Penn Oil Co. 42 W. Va. 80; Kansas Natural Gas Co. v. Board of Commissioners, 89 Pac. Rep. (Kan.) 750; Kitchen v. Smith, 101 Pa. St. 452; Jones v. Wood, 54 Ohio St. 627.) Some of these authorities tend to hold that it cannot be taxed at all except as the oil or gas are taken from the land, and then they must be taxed as personal property. It should be noted that although the leases in those cases are substantially like the one here in question, the statutes in those States are quite different from the one here under consideration. The West Virginia court holds, in the case just cited from that State, that the lease does not convey a freehold interest. This court has held, under provisions in a lease substantially like this, that it conveyed a freehold interest. (Bruner v. Hicks, 230 Ill. 536; Poe v. Ulrey, supra.) In discussing the above sections of the statute in In re Major, 134 Ill. 19, we have held that even though there was no evidence that coal existed under the land, whatever there was of coal or mineral underlying certain land was reserved by the conveyance there in question, and the lease could be taxed. Similar leases affecting rights as to coal have been held to so separate a mining right therein that it should be taxed separately. (Consolidated Coal Co. v. Baker, 135 Ill. 545; Sholl Bros. v. People, 194 id. 24; In re Maplewood Coal Co. 213 id. 283.) Oil and gas, like salt water and other liquids and gaseous bodies, are different in their action from solid minerals, such as coal and iron, and this difference might, under certain conditions, require the application of different rules as to solid minerals than as to liquid or gaseous ones. (Watford Oil and Gas Co. v. Shipman, supra.) But such is not the case here. Whatever may have been decided in other jurisdictions, it is clear under the decisions in this State that this lease conveys such a mining right in the land here in question that it can properly be taxed separately, and that as it involves a freehold it should be assessed as real property.

Appellants contend that the board of review improperly assessed the entire mining right to appellants. So far as the record discloses there is nothing to show that the board did not assess to appellants only what was considered the fair value of the mining right obtained by them under .the lease. As to whether the one-eighth of oil reserved by the owners of the fee did, or should, cause the tax on the fee to be made higher is a question not raised on this record.

The judgment of the county court will be affirmed

Judgment affirmed.