Weekly Trinity journal. [volume] (Weaverville, Calif.) 1857-1972, 1868-05-09
Arc Mining Lands Taxable IAN Opinion.

ASSCSSOIo
their duties, we have thought it best to give
place to the following opinion, to the rejection
of matter which would perhaps be of greater in
terest to the general reader. E. F. Bean, the
Assessor of Nevada county, asked the written
opinion of the District Attorney of that county
relative to the assessment of mining lands, and
taxation of the possessory title to mining claims
and farming lands. Also, how the assessment
of mining claims or possessory title to the same
should be entered on the assessment roll. FOL
lowing is the reply
DISTRICT ATTORNEYS OFFICE, NEVADA Co.
NEVADA CRY, April q, 1868
E. F. BEAN, Assessor of Nevada county-Sr:
have received yours OF April goth, containing
the following points for my official opinion:
LIN regard to the legal right to and collect taxes
upon the possessoy title to mining and farming lands in Ne
vada county
H-In regard the manner in which the of
mining claims the possessory title thereto should be
entered on the assessment roll
The great importance of the questions induces
me to answer you more fully and at greater length
than might otherwise have deemed necessary.
AS to the first There is no doubt, as the de-
cisions now stand, that mining claims and all
other possessory interests upon the public do
main are as much subject to assessment and tax
alton as any other species of property whatever.
The only doubt ever entertained as to the power
of the State to impose taxes on possessory inter-
ests, held by individuals on the public lands,
probably originated in the condition imposed by
Congress upon California, on her admission into
the Union, viz that she should never interfere
with the primary disposal of such lands, and
should lay no tax or assessment whatever upon
the same. The opinion held by some that
the mere settler upon the public domain under
the implied permission of Congress, whether for
mining, or for some other purpose, did not in
legal sense have any assessable estate or taxable
interest in the land apart from the title of the
Government, and that the imposition of tax
On him would in effect, be laying tax on the
land ITSELF in contravention of the terms of our
admission into the Union. Others, probably
supposed that, as mere trespasser, the miner
or settler could not be justly deemed to have
any interest whatever in the soil capable of be-
ing rated at fixed pecuniary value. And the
last view certainly, at one time, received the
high sanction of the U. S. Supreme Court, which
refused to entertain jurisdiction of an appeal in
volving the interest on public land, upon the de-
clared ground that such interests could have no
assgnable value in money. Lownsdale Us. Par
ish 81 Howard 29O.) An act of Congress has,
believe, since remedied this defect of jurisdc-
ton, and at all events that court does now hest
tate TO entertain appeals in causes involving
mere possessory rights. Apart however from
judicial opinions it is difficult to understand
how the taxing of possessory interests could
ever have been supposed to be in conflict with
the conditions upon which we were admitted into
the Union.
Regarding the subject solely in its relation to
the State and State jurisdiction, it seems obvi-
Gus, first, that the occupant of portion of the
publ land must be deemed to have an interest
or estate therein, separate from and Independent
of the title of the Federal Government; and Sec
ondly, that he cannot protect himself from taxa
ton and other public burthens, behind the title
of that Government. AS owner of the land, and
invested with the full right of soil property,
the Federal Government and its several depart
ments might, very consistently, refuse to con-
slider a settler in any light other than that of a
naked trespasser but the State is differently
situated. AS between the Government (the true
owner) and the settler, it is third party pos
sessed of local police jurisdiction over the set
tier and it has the legal right to regard his pos
sessory interests as property, and to treat it in
all respects as it treats other property. 1t can
not go behind his possession to peer into his til
tie or rather the question of the validity of his
title Is of real moment, for apart from the
title to the land and right of soil, he has de-
fined and Independent interest, endowed with
the quality of legal value, and possessing, in
very high degree the distinctive attributes of
property. This is the view which, from the be-
ginning of our history State, has received
the sanction of the several departments of onr
State Government. Laws have been enacted,
from time to time, to protect mining claims and
other possessory interests from tortious invasion
on the part of others. They have formed the
constant subjects of litigation in our courts.
They at all times have been, and still are, sold
and conveyed as property, are often mortgaged
or pledged to secure the payment of debts and
still more frequently, perhaps, have been levied
upon and sold, at judicial sales, to satisfy judg-
ments recovered in our courts. To assert, after
this, that possessory interests are not in the
widest sense property, would be to stultify
selves and repudiate all ideas of consistency.
have entered upon the foregoing not because.
it is necessary to the satisfactory solution of
your first question, but for the reason, if we are
to credit the public press, that many persons
some even in official statons-stl affect to be-
lieve that any attempt on the part of the State
to impose taxes on mining claims, or other pos
sessory interests, amounts to a breach of the
condition upon which it entered the Union.
have not pretended to venture upon an elab-
crate discussion of the peculiar character of such
rights, but have said enough, | apprehend, to
snow that they are very properly regarded by
the State as property in the srictest legal sense
and that there is no legal identity between them
and the paramount estate and ultimate right of
soil of the Federal Government.
But the questions of taxablity of mining claims
Herewith have been defnitively disposed of by
the highest authority in this State.
AS far back as 1858 the Supreme Court in the
most forcible and explicit terms, asserted the ca
pacity OF the State Legislature to impose taxes
on mining claims situated upon the public do
NAN Nm 10 common with other property. people
Us. Moore, IL Cal. 56-67 ct sequens.l True. the
court at the same time sustained the cause of
exemption as to mining cams-in which the
case mas since been overruled-but this fact
rather adds to, than detracts from the authorita.
tive character of the decision upon the question
OF power. much more recent case THE Peo-
pie rs. McCreery) decided at the October term.
1867, and published in the Sacramento Union Of
January Sd, 1868, has finally settled the cues
ton in all its bearings. There the question was
upon the constitutionality of the exemption,
rather than the power Of the Legislature to i'm.
pose the tax, aud the Court assuming the exist
ence of the latter as thing beyond dispute, pro-
ceeds to declare the cause of exemption, as re-
spects mining claims, growing crops and, in
short, all private property absolutely void. 1t
treats it precisely as if it had never had place