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Nos. 22-0139 and 22-0140 – Collingwood Appalachian Minerals III, LLC., et al. v. Richard 

L. Erlewine

Justice Hutchison, concurring, in part, and dissenting, in part:

This case involves separate tax deed conveyances in Wetzel County: the first 

are two 1991 tax deeds, and the second is a 1995 tax deed. As I explain herein, I concur 

with the majority opinion’s ruling concerning the 1995 tax deed that conveyed a 25% share 

of the oil and gas royalties to Trio Petroleum and Waco Oil & Gas. But I dissent to the 

majority opinion’s interpretation of Richard Erlewine’s 1991 tax deed. I am firmly of the 

belief that Erlewine received a tax deed to the land undivided from a different 25% share 

of the oil and gas royalties in 1991, and thus, that the majority opinion’s interpretation of

the law of tax deeds is incorrect. Moreover, due to the ambiguities in the laws regarding 

tax deeds, particularly West Virginia Code § 11A-3-63, I call on the Legislature to clarify 

its statutes on this topic.

Any tax deed lawyer looking at the chain of title recorded in Wetzel County 

would fairly conclude that in 1945, Osburn Dunham bought 135 acres of land on Huff 

Ridge with a 25% share of the subjacent oil and gas from Joseph and Myrtle Rogers. In 

1949, Dunham bought another 25% share from James Sivert. Hence, in 1968, when 

Dunham conveyed to Russell F. Stiles “the same land conveyed to the said Osburn Dunham 

by Joseph E. Rogers” in 1945, it is fair to say that Stiles purchased land with only a 25% 

FILED

June 15, 2023

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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share of the oil and gas.

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 Dunham continued to own a 25% share. And if there is any 

confusion or ambiguity here, after 1968, Stiles paid taxes on 25% of the oil and gas and 

Dunham paid taxes on another 25% share. While the majority opinion claims that the 1968 

deed is unambiguous, it is actually Dunham’s and Stiles subsequent conduct which 

clarified the intent behind the 1968 deed. Hence, when Dunham defaulted and failed to 

pay his taxes, and the sheriff sold Dunham’s 25% share to Trio/Waco (for a mere $16.36), 

the 1995 tax deed to Trio/Waco was unassailable. Trio/Waco and its successors clearly 

own that 25% share under the 1995 tax deed.

That said, it is the other 25% share bought by Stiles in 1968 that is at the 

heart of my dissent. There are several legal opinions in the record, known to every tax 

assessor in the State of West Virginia, which show that this case does not involve a 

procedural hiccup. No, the assessor’s actions in this case were in clear violation of West 

Virginia law.

It is a long-standing problem in West Virginia deed law that tax assessors 

have improperly and illegally sent landowners, who own a unified estate, multiple tickets 

taxing the estate in pieces. Tax assessors, for a century, illegally split oil and gas, or coal, 

or whatever royalties or minerals from the surface estate and slapped a tax on each interest 

separately. The result was multiple, improper assessments that caused confusion, the 

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This analysis, obviously, sets aside any questions about the effect of the 

1949 merger of Osburn Dunham’s oil-and-gas shares.
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duplication and overpayment of taxes, accidental defaults, and multiple overlapping and 

competing tax deeds following an auction of such interests.

The records of the Attorney General demonstrate that tax assessors botching 

the taxation of land, and illegally taxing the surface separate from the minerals, is nothing 

new. More importantly, those records demonstrate tax assessors knew those actions were 

illegal. For instance, nearly a century ago, in 1928, a landowner sold the coal underlying 

his tract of land in Harrison County and retained an undivided interest in the rest (the land 

and the non-coal minerals underlying the land). The tax assessor charged taxes to the 

landowner for “the surface” and the landowner paid the taxes. Then, oil and gas were 

discovered beneath the tract, and a prosecuting attorney questioned (on behalf of his 

county’s tax assessor) whether the landowner had forfeited ownership of the oil and gas 

interest because the landowner never paid a separate tax on the oil and gas.

In a 1948, opinion, the Attorney General concluded the prosecuting 

attorney’s question was balderdash. Specifically, the Attorney General found absolutely 

no authority for a tax assessor to split a landowner’s undivided interest in land into pieces 

for tax purposes. The Attorney General said:

Until there has been a severance of an estate in minerals there 

is no authority for a separate assessment of the mineral interest. 

Conversely there is no authority to omit from assessment an 

unsevered estate in minerals. . . . There is no authority for the 

separate assessment of unsevered interests in land. In the 

instant case therefore the owner and assessor must have 

intended to report for taxation the entire estate remaining after 

the severance of coal, including the unsevered interest in oil 

and gas.
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Attorney General’s Opinion of April 20, 1948, 42 W. Va. Op. Att’y Gen. 309 (1948)

(emphasis added).

A similar question reappeared two decades later. In 1966, the Attorney 

General issued an opinion to Hardy County regarding land on which a well was producing 

natural gas. The natural gas was not severed from the land in the owner’s deed, but the 

county assessor still issued two tax tickets to the owner: one for the land, and one for the 

natural gas royalties. Regarding those tax tickets, the Attorney General explained that West 

Virginia law – then, as now – requires an assessor to place one unified tax on “[t]he value 

of land, the value of buildings, and the aggregate value” of all tracts or interests. W. Va. 

Code § 11-4-2(5)(A). See also W. Va. Code § 11-4-9 (requiring the assessor to charge 

only one tax for an owner’s undivided interest in any estate in land). Hence, the Attorney 

General concluded:

Where land is owned and there has been no severance of an 

estate in the gas mineral from such land, but there is known 

natural gas within and underlying such land (regardless of 

whether or not gas royalties are being paid to the owner thereof 

pursuant to the terms of a lease), such land should be assessed 

annually for ad valorem taxation purposes at its “true and 

actual value”, taking into consideration all pertinent 

indications of value, including, among any others, reliable 

estimates, gas production reports, and royalties paid to the 

landowner. Until there has been a severance of an estate in 

the gas mineral, there is no authority for a separate assessment 

of the gas underlying such land. There cannot be any separate 

assessment of unsevered interests in land.

Attorney General’s Opinion of October 27, 1966, 52 W. Va. Op. Att’y Gen. 135 (1966)

(emphasis added).
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Accordingly, by 1966, it should have been clearly understood by county tax 

assessors across the State that if an interest in natural gas has not been severed from the 

land in a deed or will or other written conveyance, then there is no authority for the assessor 

to issue a separate tax assessment for the gas underlying the land.

Now, recall that two years later, in 1968, Osburn Dunham conveyed to 

Russell Stiles the same thing Dunham bought in 1945: “[a] tract of land situated on the 

Huff Ridge” with an undivided, unsevered, one-quarter share of the oil and gas royalties. 

Despite the repeated admonitions of the Attorney General, the Wetzel County tax assessor 

mailed Stiles two separate tax tickets, one for the land, and one for the share of oil and gas. 

This separate assessment had no basis in the law. Nevertheless, the Wetzel County assessor 

sent two separate tax tickets for the next two decades.

One might presume the assessor was confused, or that the likely changing of 

the guard caused a loss of institutional memory in Wetzel County. However, we have an 

opinion from the West Virginia State Tax Department that applies to this situation. In 

1988, the Department wrote a letter to the assessor of Wetzel County encouraging the 

assessor to make “every effort” to repair his tax assessment books and to stop taxing 

mineral interests separately from undivided land interests. The Department pointed out 

that West Virginia Code § 11-4-2 prohibits a ”separate assessment of unsevered interests 

in land.” More importantly, the Department made clear to the assessor that the tax sale of 

a separate but unsevered mineral interest “would in all likelihood be considered invalid[.]” 
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Letter from Robert A. Hoffman, Director, Property Tax Division, State Tax Department of 

West Virginia, to Ralph E. Phillips, Assessor of Wetzel County (November 7, 1988).2

Hence, by 1988, the Wetzel County assessor’s office was clearly on notice 

that it could not issue separate tax tickets on an unsevered, unified interest in land. Thus, 

the sale of an improper duplicate tax ticket, for an interest in minerals, would in all 

likelihood be considered invalid. Yet Russell Stiles continued to receive two tax tickets on 

his unified estate, and when he failed to pay those two tax tickets, Wetzel County’s assessor

and sheriff put both of those tickets up for sale. Plaintiff Richard Erlewine bought one 

ticket, and Trio/Waco bought the other, and those purchases resulted in the competing and 

confusing 1991 tax deeds at issue in this appeal.

Now, put yourself in Richard Erlewine’s shoes in 1991 and ask, what did he 

think he was buying at the tax sale? 3 The majority opinion repeatedly says he bought the 

“property,” but the record says otherwise. If Erlewine had researched the chain of title, he 

would not have seen the word “property” but, rather, would have seen the repeated use of 

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The letter indicates carbon copies were sent to “All County Assessors” in 

the State of West Virginia.

3 One question that might come to mind is whether Erlewine knew or should 

have known that two tax sales were occurring regarding the Huff Ridge land on the same 

day, and therefore “knew” that he was not buying the one-quarter oil-and-gas interest. 

There is no proof of that in the record. We know, today, that there were two overlapping 

sales because of the power of hindsight. Further, there is no duty in either the common law 

or the West Virginia Code that requires a tax purchaser of one unpaid tax ticket to research 

the other tax tickets being concurrently sold, to determine if the tax assessor has erred and 

created any duplication or overlap.
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the word “land.” For instance, he would have seen that, beginning in 1968, Stiles had title 

to “a tract of land situated on Huff Ridge” with an undivided interest in one-quarter of the 

oil and gas. If Erlewine saw an advertisement for the tax sale of Stiles’s property and had 

looked in the county assessor’s tax books, then he would have seen that Stiles owned 135 

acres of land on Huff Ridge. When Erlewine paid the sheriff and assessor $6,000 for 

Stiles’s unpaid taxes, the notices to redeem described the property as “Land – 135 Huff 

Ridge” and “135 acres of land on Huff Ridge.” The 1991 tax deed to Erlewine said the 

same thing: he was “the purchaser of 135 acres of land on Huff Ridge.”

My dissent, in part, is based on the majority opinion’s avoidance of the word 

“land” and its clear meaning under West Virginia’s tax laws, a meaning which undermines 

the majority opinion. The majority opinion repeatedly says that Erlewine only bought the

“property,” but that is incorrect. The numerous deeds and documents in the record say 

Erlewine bought “135 acres of land” at the tax sale. West Virginia Code § 11A-1-1 says 

that “[t]he words land or lands or tract or tracts of lands . . . shall be deemed to include an 

undivided interest in any freehold estate in land.” Likewise, West Virginia Code § 11-4-9 

says “the words land or lands or tract or tracts of lands . . . shall be read to include an 

undivided interest in land and an undivided interest in any estate in land[.]”

Hence, from Erlewine’s perspective in 1991 when he received a tax deed to 

“135 acres of land,” he could fairly believe that the tax assessor and sheriff followed the 

law, and believe he had purchased “an undivided interest in any freehold estate in land” or 

an “undivided interest in any estate in land” that had been owned by Stiles, and by Dunham, 
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and by Rogers. In other words, Erlewine could believe he bought an undivided interest in 

135 acres of land and one-quarter of the oil and gas. When Erlewine brought his lawsuit, 

he could have fairly believed that he, and not Trio/Waco and its successors, owned at least 

a 25% share of the oil and gas. Therefore, the majority opinion avoided the legal definition 

of “land” by repeatedly invoking the term “property” to describe Erlewine’s interest.

The majority opinion also makes much of the fact that Stiles failed to pay 

both tax tickets, and it uses that fact to differentiate this case from Orville Young, LLC v. 

Bonacci, 246 W. Va. 26, 866 S.E.2d 91 (2021), where one duplicate tax ticket was paid,

and another was not. I do not think that fact is controlling because, as I detailed above, the 

law is clear that the tax assessor never should have split Stiles’s undivided estate into two 

separate tax tickets for the two decades after 1968. However, despite the tax assessor’s 

grievous violation of the law, the majority opinion ignores the rule applied in Orville Young

that “[a] deed made pursuant to a tax sale under a void assessment is void.” Syl. pt. 4, 

Blair v. Freeburn Coal Corp., 163 W. Va. 23, 253 S.E.2d 547 (1979). I understand that, 

when Trio/Waco forked over $700 for its 1991 deed to “135A Huff Ridge OG 1⁄4 Int.” it 

believed it was buying a one-quarter share of the oil and gas royalties.

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 But the fact remains 

that Stiles’s separate oil-and-gas interest should never have been on the tax assessor’s 

4 Of the many odd facts in this case, the oddest is this: Stiles was charged 

$700 a year in taxes for a one-quarter share of the oil and gas interest, while Dunham was 

charged $16.36 for an identical one-quarter share. 
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books, and any tax sale under a void assessment is itself void. That is a legal fact and is 

why I am convinced that Trio/Waco bought nothing in 1991.

Clearly, Legislative action is needed because the majority opinion has 

overextended West Virginia Code § 11A-3-63 (1994) by interpretation.

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 That Code 

section, which I call § 63, excuses any procedural “irregularity, error or mistake” in the 

delivery of a tax deed, and then allows the original, taxpaying estate owner to bring an 

action to void the tax deed in limited circumstances.

What the majority opinion appears to miss here is that this case has nothing 

to do with the delivery of a tax deed; it instead involves a tax assessment that was improper 

and void from the get-go. This wasn’t a procedural misstep; it was a violation of 

substantive law. For that matter, the majority opinion does not venture to guess what 

“procedure” means in § 63, it simply presumes that the issuance of illegal duplicate tax 

tickets for decades is a ”step in the procedure leading up to and including delivery of the 

tax deed.” Id. The majority opinion also misses that § 63 is designed to preserve “the due 

5 West Virginia Code § 11A-3-63 provides:

No irregularity, error or mistake in respect to any step 

in the procedure leading up to and including delivery of the tax 

deed by the deputy commissioner shall invalidate the title 

acquired by the purchaser unless such irregularity, error or 

mistake is, by the provisions of section forty-nine of this article 

or section two, three, four or six, article four of this chapter, 

expressly made ground for instituting a suit to set aside the sale 

or the deed.
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process rights of owners of real property,” W.Va. Code § 11A-3-1, and it might also be 

designed to protect assessors and sheriffs from lawsuits by tax deed purchasers. But § 63 

does not, and it cannot, limit the rights of the purchasers of conflicting tax deeds like 

Erlewine and Trio/Waco from suing to clarify the quality of their deeds. The assessor sold 

Trio/Waco something that was a legal fiction, but sold Erlewine something that had, as a 

matter of law, the appearance of being complete, undivided title. The majority opinion 

rewrites the 1991 deeds and chalks it up as nothing more than an irregularity, error, or 

mistake in the delivery of the two tax deeds. While the 1991 deed to Trio/Waco put a cloud 

on Erlewine’s 1991 deed, the majority opinion interprets § 63 to say that Erlewine has no 

right to clear that cloud in a courtroom.6

Worse, let us take the majority opinion to its logical (but clearly wrong) 

conclusion. If the majority opinion is correct, Erlewine should never have filed this 

lawsuit. Instead, Erlewine should have put a cloud on Trio/Waco’s tax deed by claiming 

his deed encompasses all of the oil and gas estate, and then commenced drilling on his 135 

acres of land. Under the majority opinion’s interpretation of § 63, Trio/Waco and its 

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To bring my concerns full circle, let me return to the Orville Young v. 

Bonacci case and this Court’s inconsistent interpretation of § 63. Recall that in Bonacci, 

the majority opinion concluded that a lawsuit could be brought to interpret the meaning of 

a tax deed for a simple, factual reason: one of the two duplicate tax tickets had been paid. 

In the case at bar, the majority opinion says a case is precluded by § 63 because neither of 

the two duplicate tax tickets was paid. The majority opinion fails to explain what language 

in § 63 would permit the action in Bonacci but preclude the action in this case.
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successors would have been prohibited from bringing a lawsuit to challenge Erlewine’s 

interpretation of his tax deed.

I simply cannot believe that this is what the Legislature intended.

This case is all about public policy. The focus of any case interpreting deeds 

is on preserving the sanctity of titles and maintaining the stability of land transfers. The 

presumption should be that county tax assessors follow the law and assess a property based 

on its entire, undivided value. Courts should not permit assessors to violate the law, nor 

should courts be required to sanction those violations of law, yet that is what the majority 

opinion seems to suggest. I realize that it might not seem “fair” that an oil-and-gas 

company spent $700 for a tax deed to oil and gas that might now be worthless. But the 

policy question here is: who is the law going to protect? The sanctity of land titles and the 

notion that tax assessors comply with the law? Or, speculators who buy tax deeds to 

properties, sight unseen, gambling that the purchase might someday be worthwhile? 

Someone who buys “land” at a tax sale should be allowed to assume the law has been 

followed, and that the “land” encompasses the undivided estate of the prior owner who 

failed to pay their taxes. By permitting assessors to “get away” with double, triple, or 

quadruple assessments on land interests in violation of state law, the Court is encouraging 

gambling by tax purchasers. If the majority opinion had been decided differently and had 

applied the settled law that tax assessors are supposed to tax undivided interests in land

only once, then buyers of tax liens would be motivated to investigate whether a purchase 

is void because it violates the law. Assessors would no longer be able to pawn off multiple 
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assessments to the same property interest, generating litigation between buyers, because 

there would be no more buyers of worthless tax liens. That said, it is for the Legislature to 

establish policy in such matters.

In sum, I respectfully dissent. I believe the circuit court correctly interpreted 

the 1991 tax deed as giving Erlewine the same interest as his predecessor, Stiles. 

Erlewine’s 1991 tax deed conveyed to him a 100% interest in the land and all the minerals 

except for an undivided one-quarter interest in the oil and gas. The majority opinion, 

therefore, errs in holding otherwise, and I hope that the Legislature intervenes to clarify its 

intent as to how duplicate, unpaid tax deeds should be handled, by courts and counties, in 

the future.