#### James Arthur Fox, Tax Collector v. Pearl River Lumber Company.

1. Taxation. *Assessment. Growing trees. Beal estate. Sepa/rate interest. Code*1892, *U*3753, 3759, 3774.

While growing trees are real estate, yet they are subject to separate ownership; and where the soil belongs to one person, and the trees upon it to another, they may be separately assessed for taxation to their respective owners.

2. Same. *Approval of assessment. Bes adjudicóla. Code*1892, *\*3787.

Where the owner of trees, growing upon the land of another, returns them to the assessor for taxation, giving their value, the judgment of the board of supervisors approving the assessment, UDder code 1892, § 3787, defining the effect of such judgment, concludes the owner from disputing the validity of the assessment.

From tbe chancery court of Lawrence county.

Hon. Henry 0. Conn, Chancellor.

The Pearl River Lumber Company, appellee, was the complainant in the court below. Fox, Tax Collector, appellant, was defendant there.

The facts are fully stated in the opinion of the court.

*2*A. E. Weathersby, John U.*Arringtonand *McWillie &*Thompson, for appellant.

Growing trees are subject to separate ownership from the soil on which they stand, and they are part and .parcel of the real estate. *Harrell*v. *Miller,*35 Miss., 700; *McKenzie*v. *Shows,*70 Miss., 388. The Pearl River Lumber Company is shown by the record to have been the owner of $25,000 worth of standing timber in Lawrence county upon land, the fee simple title of which is in other parties.

We make two points as against the decree of the chancellor: First, The appellee returned its trees to the assessor for taxation, fixing the value thereof. This assessment was approved by the board of supervisors at the proper time, and in the proper manner, and thereby the assessment became *res adjudícala,*and forever excluded the taxpayer, the Pearl River Lumber Company, from disputing its validity. Code 1892, § 3787.

Second, The assessment itself was correct and proper, and was properly entered on the land roll, since the trees standing and growing were real estate. Code 1892, § 3774.

It will be observed that the owners of the soil gave in the same to the assessor at its value, less the value of the standing trees. It will be further perceived that the Pearl River Lumber Company gave the trees in to the assessor at their value, adding nothing thereto for the value of the soil. This is, therefore, not a case of double assessment, but is a correct and proper assessment of several and distinct interests in the real estate. Authorities are not wanting to show that the trees are the subject of a separate assessment, and our statutes, §§ 3758 and 3774, require in such case that if there be more than one claimant, all of them should be named in the assessment roll, and that each owner should give in his land — - that is, his interest in the land — at its intrinsic value. In New York it is held that distinct interest in the same parcel of land may be owned by several persons, and that where one person *3owns the soil, and another the buildings thereon, they should be separately assessed. *People*v. *Brooklyn,*93 N. Y., 308. And in Pennsylvania it is held that where the surface of land belongs to one owner, and the minerals thereunder belong to another, the respective interests should be assessed for taxation to each owner according to his interest, and according to the respective value of each interest, and it is further said that the owner of one interest cannot be charged with the whole tax. *Sanders*v. *Scranton,*105 Penn. St., 469. In Massachusetts we find that a right to maintain a dam upon the land of another is taxable, and that it is properly assessed as real estate to the owner of the right. *Flax Pond Water Go.*v. *Lynn,*147 Mass., 31. Unless the decree in this cause be erroneous, one thing is certain, and that is, that $25,000 worth of propery will escape taxation, and this result should be avoided if possible. The trees are not exempt from taxation. Liability to taxation is the general rule, exemption the exception, and exemption is not to be presumed or implied. *Frantz*v. *Dobson,*64 Miss., 631; Cooley on Taxation, 146-152; *Railroad Go. v. Thomas,*65 Miss., 553; *State*v. *Simmons,*70 Miss., 485; Constitution of 1890, Sec. 90 (h) ; lb., Sec. 112; Code 1892, § 3774.

*J. S. Sexton,*for appellee.

Land embraces not only the soil, but its natural products, growing upon and affixed to it. Such things are a part and parcel of the realty, and pass by a grant of the land. *Ilarrell*v. *Miller,*35 Miss., 700; *McKenzie*v. *Shows,*70 Miss., 388. It being an undisputed fact in this case that the land was assessed to' parties other than the Pearl River Lumber Company, and that these other parties had paid the taxes thereon, it follows as a matter of fact that taxes have been paid on the standing timber growing on the lands so paid upon.

Even if the timber be taxable, it is apparent of record that the Pearl River Lumber Company is a joint stock corporation, *4and its property can only be taxed in pursuance of Code 1892, § 3758, which prescribes that “the president, or other officer of such a company, shall, on demand, or on or before the first day of June of every year, deliver to the assessor of the county in which the company or corporation is domiciled, or located, a written statement, under oath, of the capital stock paid in, and its market value, and to whom each share belongs.” *State*v. Simmons, 70 Miss., 485. Section 486 of the code of 1880, which is practically identical with § 3758 of the code of 1892, was construed, and it was held that “under our statutes a domestic corporation is taxed with the value of its capital stock, and individuals are not taxed on the shares of such stock held by them.” The trees could only have been assessed under the statutes to the Pearl Eiver Lumber Company at its domicile, which domicile is not in Lawrence county, but in Lincoln county. Furthermore, it is charged in the bill, and of course taken to be true on this hearing, that the complainant, the Pearl Eiver Lumber Company, was duly and legally assessed with all property which should have been assessed to it for the year 1900, and had paid all the taxes due thereon, and .also the privilege tax required by law for said year. This allegation is not denied by the answer. It necessarily follows that if the Pearl Eiver Lumber Company had paid all the taxes legally assessed to it for the year 1900, no valid sale of its property for taxes can be had. It is too plain for argument that the timber holdings of the lumber company add to the value of its capital stock, and must be considered in the valuation of the same; and as a matter of fact the valuation of the timber holdings of this company constitute a very large proportion of the value of its capital stock, and when the capital stock is assessed at its proper value in Lincoln county, as has been done, there is no room for re-assessing it in Lawrence county. If it be so reassessed, it will be double taxation, which is not permissible. The code of 1892, § 3772, provides that all lands shall be assessed according to its intrinsic value, and if the assessor of *5Lawrence county violated the law, and did not assess the land upon which the timber in controversy stood, at its just value, the Pearl Fiver Lumber Company is not in fault because thereof.

Argued orally by *John II. Arrington*and *It. If. Thompson,*for appellant, and by *J. S.*Sexton, for appellee.

Terral, J.,

delivered the opinion of the court.

The appellee, the Pearl Fiver Lumber Company, a Mississippi corporation, domiciled in Lincoln county, being the owner by purchase and conveyance of sundry large quantities of timber growing upon certain lands in Lawrence county, at the proper time in A.D. 1900, rendered to the assessor of Lawrence county a list of its property in said county subject to taxation, with the valuation thereof, and among the properties so owned by it and listed to the assessor as aforesaid, was the following: The timber growing upon certain lands therein described; and the said assessment so made by said company was duly entered upon the land assessment roll of Lawrence county for said year A.D. ■ 1900, which assessment was in due process of law approved by the board of supervisors of Lawuence county. The taxes so assessed to the lumber company not being paid on or before the 15th day of January (§ 3811, Code 1892), the tax collector was about to proceed to collect the same by sale, when the lumber company enjoined their collection. The Pearl Fiver Lumber Company, in its bill, alleges that it' had paid its privilege tax, and all other taxes for wdiich. it was legally assessed; however, not defining whether the privilege tax paid by it was that of a sawmill, under sec. 71, ch. 5, laws 1898, or the. privilege tax levied on each land timber mill company buying timber without the land on which it stands, under sec. 8, ch. 43, laws 1900, nor defining what composed the other *ad valorem*tax paid by it; but further avers that the assessment of the timber *6interest in Lawrence county was illegal and void, because, as it says, it was not competent to assess said timber interest owned by it separate and apart from tke land upon wkick tbe timber Ayas growing, and because the lands themselves were assessed to tbe various owners thereof. It appears from tbe evidence that all tbe land upon which tbe growing timber of appellee is situated was assessed to tbe 0Avner& thereof, but at a value diminished by the value of tbe timber OAvned by the lumber company, and that tbe estate and interest of said lumber company in tbe timber growing upon said land with its value was entered upon tbe land assessment roll in conformity with tbe list and assessment furnished by said lumber company to the assessor. Tbe motion of tbe tax collector to dissolve tbe injunction wms overruled, and from tbe decree to that effect be appeals.

*I*By tbe common law, trees are a part and parcel of the land I upon which they are growing or standing, for tbe term “land” embraces not only tbe soil, but its natural productions; and trees growing or standing upon land are not distinguishable in their character of real estate from tbe soil itself, until they are actually severed from tbe soil. *Harrell*v. *Miller,*35 Miss., 700 (72 Am. Dec., 154); *Jones*v. *Flint,*10 Adol. & E., 753; *McKenzie*v. *Shows,*70 Miss., 388 (12 So., 336; 35 Am. St. Rep., 654). By tbe common law also, several sorts of estates or interests, joint or several, may exist in tbe same fee; as that one person may own tbe ground or soil, another tbe structures thereon, another tbe minerals beneath tbe surface, and still another tbe trees and wood groAving thereon, etc.

Tbe counsel for appellee, as we understand bis contention, does not deny that tbe interest of appellee in tbe standing timber on tbe soil of another in Lawrence county is real estate, but that it is real estate assessable only to tbe owner of tbe ground or soil, and that tbe separate assessment of it to appellee by tbe assessor of Lawrence county is illegal and void. It is too plain for argument that by tbe common law as ad*7ministered in England, and in this state, the right and interest of appellee to the timber standing upon the lands of others in Lawrence county is an interest in real estate; and we see no reason why appellee’s said interest, being worth, according to its own valuation, more than $25,000, should not be separately assessed to it as the owner thereof. Our revenue law requires land to be assessed to the owner (Code 1892, § 3753) ; that, if there be more than one claimant, they should all be named (§ 3774); that each owner should give in his land at its intrinsic value (§ 3759) ; and, as each owner lists and values his own property, it reasonably follows that his separate interest, whatever it be, should be separately assessed. Such assessments are held valid in other jurisdictions. In New York it is held that distinct interests may be owned by several persons in the same parcel of land, as one may own the soil and another the buildings thereon, and that the buildings are assessable as real estate. *People*v. *Board of Assessors of City of Brooklyn,*93 N. Y., 308. In Pennsylvania it is said, where the surface of lands and the minerals thereunder have been severed by conveyance, and the respective interests have become vested in different owners, taxes should be levied upon each owner according to his interest only, and one cannot be charged with the whole tax. *Sanderson*v. *City of Scranton,*105 Pa., 469. In Massachusetts it is held that a right to maintain a dam upon the land of another is properly assessable as real estate. *Water Co.*v. Lynn, 147 Mass., 31 (16 N. E., 742).

The Pearl River Lumber Company can have no remedy by injunction for another reason. Of its own accord it rendered to the assessor of Lawrence county a list of lands in said county, upon which it claimed by conveyance the timber growing thereon, with its valuation of said timber interests; and said assessment of said timber was duly entered by the assessor upon the land assessment roll of Lawrence county, and said assessment roll was duly approved by the board of supervisors of said county; wherefore the said assessment of the appellee, *8by the express declaration, of § 3787, code 1892, became final and conclusive against appellee. It cannot thereafter be heard to question the validity of the assessment. Under § 3799 certain assessments might be corrected by application to the board of supervisors, but that subject does not fall under our present inquiry.

Upon the case made by the record we think the court erred in not dissolving the injunction, wherefore the decree below is reversed, the injunction dissolved, and the case

*Remanded.*