Great Salt Lake Minerals & Chemicals Corp. v. State Tax Commission , 1977 Utah LEXIS 1342 ( 1977 )

ELLETT, Chief Justice

(concurring and dissenting):

I concur in the main opinion except as to the holding that the dikes may be taxed. Those dikes are soil and land as much now as they were when their components were in a flat plane.

U.C.A. 1953, 59-2-2, provides in substance that no tax shall be levied upon lands, the title to which remains in the state, held or occupied by any person under a lease from the state. However, it further provides that improvements on such lands may be taxed. We then have the problem of deciding whether or not the items in dispute are land or improvements to land.

In the case of Backus v. Hooten¹ the question of what was an improvement upon land was decided. There, the owner of land employed a contractor to level his land so as to permit irrigation water to flow across it. The contractor was paid a sum in excess of $500 for his work; however, he failed to pay some materialmen and they sued the owner of the land under a statute² which made the owner of the land personally liable for “(t)he construction, addition to, or alteration or repair of, any building, structure or improvement upon land . . unless a bond was required from the contractor. The owner had not required a bond and the issue was whether the leveling of the land was an improvement thereto. This Court held that the leveling of the land enhanced its value but did not constitute an improvement upon the land.

It would seem that the unleveling of land by making dikes would be no more of an improvement upon the land than was the leveling thereof in the Backus case. The mere moving of earth from one place to another does not change the land into an improvement on the land even though it makes the land more valuable. The dikes are not improvements; they are a part of the realty and cannot be taxed as improvements upon realty.

California has held that levies or embankments of a canal were not improvements taxable as improvements separate and apart from a canal which was taxable.³ That court also held that the fill of earth and sand made between a breakwater and the mainland was not an improvement upon the land taxable as such and was merely a part of the realty.⁴

The mere fact that some dirt and rocks were brought upon the land from other land does not change the matter. As soon as other soil is added to soil in place, it also becomes a part of the soil. Even the addition of excrement from animals becomes land as soon as placed upon the premises. If it were not so, the farmers throughout the nation would be in trouble.

In the case of Goddard v. Winchell⁵ a meteorite fell upon a farmer’s land which was leased to a tenant. A third party, apparently with the permission of the tenant, retrieved the meteorite. The owner of the land sued to recover it and the Iowa court held that it belonged to him as owner of the land.

It seems to me that these dikes are merely bumps in and a part of the land, and as such they belong to the State of Utah and are not taxable.

1 . 4 Utah 2d 364, 294 P.2d 703 (1956).

2 . U.C.A. 1953, 14-2-1.

3 . Kern Valley Water Co. v. Kern County, 137 Cal. 511, 70 P. 476 (1902).

4 . San Pedro L.A. & S.L.R. Co. v. City of Los Angeles, 180 Cal. 18, 179 P. 393 (1919).

5 . 86 Iowa 71, 52 N.W. 1124 (1892).