The Fairmont West Virginian. (Fairmont, W. Va.) 1904-1914, 1905-07-03

Lttreiy separate from King and 1T
should pay taxes upon this estate, al.
actual value. This Is not donble. nor
unjust nor unequal taxation.
] may here add, what have before
Indicated, that in order to adtudicate
the interests of the land owner and
lease holder. and determine the es-
tates or interests of each. We must not
lose sight OF the fact that the value Of
oil and gas must be ascertained by
what they will sell for at the mouth of
the well. In place at the bottom Of
the well they cannot be used for any
purpose. They would be wholly with
out value IL they could not be brought
to the, surface. So that 1t is the joint
act OF the lessor and lessee which
gives value to the oil and gas, and
each has an interest in them.
If were left to my own Judgment
should be inclined to construe these
OIL and gas contracts as conditional
sales, regarding the royalties as the
purchase prices, and yesting the title
in fee in the lessee when the oil or gas
was found in the premises in paying
quantities. This would eliminate all
questions as to the estates or interests
OF the parties, and also all questions
of the place at which the property
should be assessed. 1t would be real
estate until delivered in the tanks or
pipes. and the county, district and mu.
nicipal corporation would receive the
taxes therefrom as from other real es.
tate situated therein. But the deci.
sions of our Supreme Court, as we'll
as the decision of other Supreme
Courts preclude me from so holding
sitting as Circuit Court. Then while
the law, as we find 1t. does not confer
upen the lessee, by these contracts a
freehold estate in the oil and gas in
place, yet the law does regard and
will enforce the lessee's exclusive
right, Ito the exclusion of even the
owner of land) to remove this oil and
gas, and therefore recognize the les.
sees interest in them,-in the things
themselves. This right, our Supreme
Court says does not amount to a free.
hold. 1t is less than freehold, and
as 1t is some kind of an estate, IT
must be chattel real. We must not
say that the plaintiff has no title or
interests to protect. II this were true
the plaintiff could maintain no action
whatever in regard to this contract.
] conclude that this contract, by
whatever name, called. is taxable un-
der the act of 1905, but was it taxable
before this act, and II so can 1t be
charged with taxes for the past five
years, not having been assessed dur.
ing that time? This feature of the
assessment law is referred to indirect.
ly in the Harvey Coal G Coke Com
pany case. but not passed upon by the
Supreme Court. This question as ap.
piled to chattels real has never been
passed upon so far as | am aware by
any of the courts If this State.
Counsel for the County Court insist
that back taxes" of this kind may be
assessed and collected. The tax com.
missioner, who is well versed on all
such questions, appeared before me
on the discussion of these motions in
vocation, and comedies that the act
of 1905, is not retro active in this re.
gard.
The statute relied upon by counsel
for the County Court, as authorizing
assessors to enter for taxation prop.
erty which has been omitted, will be
found in Sec. co, chapter 80, of the
Code of 1901, and Sec. 10s OF chapter
rs acts of 1905, amending said chap.
ter 20. 1t is as follows: IF assessors
discover that any taxes on per-
sonal property were omitted in any
former years, not exceeding five, he
shall enter the same, with interest
Il ereon in his personal property
book" The same language will be
found in Sec. SO, chapter 20 of the
Code Of 1865, except that the period
is there limited to two years. This
section as 1t now stands was construed
by the Supreme Court in the case of
City of Wheeling vs.. Hawley, IS w. ",
427. Judge Patton in delivering the
opinion Of the court in that case said:
doubtless the purpose Of the statute
was not 10 let any man escape from
his share of the burdens of taxation,
because by accident or design in any
year he was not charged with the
emount of taxation to which he was
liable on the property owned by him.
Taxation is required to be equal and
uniform; and there is no reason that