Opinion
April 25, 1949.
1. Taxation — assessment mineral interests.
All separately owned oil, gas and mineral rights constitute an interest in real estate, even though under lease; and by Sec. 9770, Code 1942, all such separate interests are to be assessed and taxed separately from surface interests, and this includes a separate mineral fee interest in oil and gas in place created by grant or exception, the interest created in the lessee by the ordinary oil and gas lease, the royalty interest reserved in the lessor in an oil and gas lease, a perpetual royalty interest in oil and gas created prior to lease for production and an overriding royalty interest created out of the interest of an oil and gas lease, — overruling Smith County Oil Co. v. Board of Supervisors, 200 Miss. 18, 25 So.2d 457, 26 So.2d 685.
2. Taxation — assessment of separate mineral interests — mode of valuation.
In the separate assessment of lessee's interest in an oil and gas lease the assessment is made upon the value of that interest and not upon the entire mineral value of the land.
3. Taxation — back assessment of mineral interest.
While it is true that the owner of a separately assessable mineral interest who has failed to return that interest to the assessor but has allowed his said interest to be assessed with and as if a part of the surface cannot avoid a tax sale by later claiming the right to have a back assessment, this does not prevent a back assessment of the separate interest at the instance of the state tax-collector.
4. Courts — rule of property — prior decisions.
The rule that a prior decision which has become a rule of property should not be overruled with retroactive effect has full application in cases where the obligation of contracts entered into in reliance upon the earlier decision would be impaired, or where vested rights acquired in such reliance would be injuriously affected, but as to all other cases a court of final decision may expressly define and declare the effect of its decision overruling a former decision as to whether it shall be retroactive, or operate prospectively only.
5. Courts — decision overruling prior decision may be made retroactive as to all features except penalties.
Where owner of a separately assessable interest in an oil and gas lease withheld its return for separate assessment acting in good faith upon a prior decision, a decision overruling the prior decision would be made retroactive in a back tax proceeding as to the taxes, interest thereon, and costs but not as to penalties.
Headnotes as approved by Hall, J.
APPEAL from the circuit court of Madison County; H.B. GILLESPIE, J.
Alexander Alexander, for appellant.
Separately owned mineral rights have been subject to separate ownership and taxation in Mississippi for many years. Moss v Jourdan, 129 Miss. 598, 92 So. 689; Merrill Engineering Co. v. Capital National Bank, 192 Miss. 378, 5 So.2d 666; Wright et al v. Ingram-Day Lumber Company, 195 Miss. 823, 17 So.2d 196. Note the following quotation from the opinion: "Moreover, one of the ingredients of a cotenant's title to minerals is the speculative chance which is an acknowledged asset of ownership. As stated in Lynch v. Union Inst. for Savings, 159 Mass. 306, 34 N.E. 364, 20 L.R.A. 842, 'A particular piece of real estate cannot be replaced by any sum of money, however large; and one who wants a particular estate for a specific use, if deprived of his rights, cannot be said to receive an exact equivalent or complete indemnity by the payment of a sum of money. At title to real estate therefore, will be protected in a court of equity by a decree which will preserve to the owner the property itself instead of a sum of money which represents its value'."
In 1930 the Legislature determined to definitely provide that such separate "interest" in land should be separately assessed for ad valorem taxes, and furthermore, said separately owned interests must be separately assessed and taxes paid thereon by the owners. To this end Chapter 171, Laws of 1930, was enacted, the same taking effect May 17, 1930, and said law is incorporated into the 1942 Code of Mississippi as Section 9770.
Briefly the Act says that the separate interests subject to taxes are those "which are owned separately and apart from and independently of the rights and interests owned in the surface of such real estate, or when any person reserves any right or interest, or has any leasehold in the elements above enumerated, all of such interests shall be separately assessed."
It makes no difference how the owner acquired his separate interest whether by deed or by reservation (as the Federal Land Bank).
Leasehold is specifically mentioned as a separate interest. The law says "shall be assessed and taxed separately" — making it compulsory.
This case compels a sane and careful analysis of the various "interests in the land, which are embodied in and are necessary parts or elements of lands, where part minerals have been separated and are under oil leases." With deference to the court, we frankly admit that the fine distinctions separating the various interest holders, and their respective rights and privileges, must be thoroughly understood in order to remove the confusion caused by the two decisions in the Smith County and Stern v. Parker cases. These different ownerships are: (a) Land owner, who owns the surface and an undivided one-half mineral interest under the land. Except for his surface rights, his interest in the minerals is the same as those enjoyed by the mineral owner.
(b) One-half full participating mineral ownership. These mineral rights give the owner the right of ingress to develop and remove the minerals. In the event said one-half minerals are leased, then the owner has the usual I/8 royalty on his one-half minerals (1/16 of the whole) of all oil, gas and other minerals when produced. When the lease expires, from whatever cause, said one-half mineral rights continue, and thereafter said mineral holder may lease the said mineral rights (just as the land owner); receive the bonus or purchase price for the same, and receive annual delay rentals from the leaseholder to continue the lease on said one-half minerals in effect during the primary term. Said mineral interests are perpetual.
(c) Perpetual non-participating royalty interest, usually a fraction of the royalty, must not be less than one-eighth of production of oil and gas. Such royalty owner is entitled to his part say 1/2 of the 1/8 royalties of oil or gas produced under any lease on the land. When one lease expires for any reason, this perpetual royalty owner continues to own the privilege and right to his part of one-eighth or more, royalties recovered under any lease then outstanding or thereafter placed on the land or mineral interest in the land. This royalty owner does not participate in any leasing of the lands. Nor does he share in any bonus or delay rentals under any lease.
(d) Royalty under the particular lease is a fractional part of the one-eighth of oil or gas produced under a particular lease only, such as the Hunt lease in the Smith County case. Such royalty rights expire with the particular lease and only in the event of production under the particular lease does the royalty owner recover anything. He neither enjoys the right to share in the royalties under any subsequent leases, nor does he enjoy the speculative possibility that he may some day share in the royalty when there is production under any subsequent lease, no matter how far removed. Thus royalty under a particular lease only is a right to share in production under the lease, and this limited right or privilege was the only royalty right involved in the Smith County case, and caused the confusion which still exists as a result of this decision.
(e) The oil and gas lease; either executed separately by the land owner on his half minerals or by the one-half mineral owner only or by both combined into one lease so as to cover all the minerals: The lease-hold rights briefly give the lessee the privilege or option of drilling for oil or gas on the premises during the primary term, usually ten years. Out of production the lessee gets 7/8ths. If the leaseholder does not begin drilling operations within one year after the date of the lease, then he is usually required to pay lessor a delay rental for deferring drilling operations for an additional year. This annual privilege of deferring drilling operations continues each year during the primary term. When operations are being conducted in good faith or if there is production under the lease, the delay rentals and expiration date of the lease is extended. The lessor may forfeit or surrender the lease on any annual date by not paying delay rentals, and must forfeit the lease, in any event, short of operations and production, when the primary term expires.
(f) There may be other interests separately owned such as overriding royalties, which are fractional interests out of the lessee's 7/8th interest in production under the lease. Also oil payments which are nothing more than overriding royalty payable out of lessee's 7/8ths, but limited as to amount. These interests are not involved in this case, and shall only be mentioned.
We have detailed these separate interests to show that each has a special value; each is a separate interest in land, and each should be taxable under Section 9770. We are frank in stating that in our opinion the 1/8 royalty under the Hunt lease in the Smith County case was clearly subject to separate assessment and taxation, but we are now dealing with full participating mineral rights. Glassmire (Oil Gas), page 73 says: "It was recognized that simple assignments of royalty proper, accruing under a lease, conveyed nothing except proceeds when and as obtained, or purely personal property interests. Something more definite and perpetual was demanded, and the mineral deed, as covering oil and gas, then came into its own and accomplished its primary purpose of separating the fee estate in the minerals from the fee estate in the land, not as an operating contract, but as an instrument by which royalties might be obtained in the same way as the owner of the land might obtain them. A royalty proper is a participation in the proceeds derived under the terms of the lease. A mineral deed is not a 'royalty' but is an evidence of mineral ownership, or the rights thereto, which interest may or may not produce a royalty under an existing or subsequent lease. This definition of a 'royalty' has been quoted with approval by the Supreme Court of Kansas."
Obviously we must differentiate and remove the cloud cast by this Smith County decision, 200 Miss. 18. We call special attention to the Smith County case, which we will analyze, with the original record in the Supreme Court before us, as follows:
(a) The stockholders of Eastman Gardiner Company (timber owners and operators for many years) about fifteen years ago divided their extensive land holdings by deeding to South Mississippi Land Company the surface (land less all minerals) and deeded to Smith County Oil Company all the minerals under said lands. The situation remained in this status until about five years ago (at the instance of the writer who was called in as attorney for large stockholders) Smith County Oil Company deeded to their various stockholders their proportionate part of non-participating, but perpetual royalty interests under said lands, this leaving the fee ownerships of the lands vested as follows:
1. Surface only — In South Mississippi Land Company;
2. Perpetual mineral interests, but no royalty interests — In Smith County Oil Company, with full and exclusive right to lease, receive and collect bonuses for leases and delay rentals paid to keep said leases in force.
3. Perpetual royalty rights, not less than 1/8 — In stockholders or royalty owners, as we shall hereafter term them.
These royalty rights were not royalties only under the oil and gas lease then in force, but were royalties that perpetually latch on any oil leases as may from time to time be given on said mineral interests by Smith County Oil Company or successor in interest. Although these royalty rights did not participate in bonuses or rentals paid under leases, they were neverthless very valuable separately owned interests in the lands.
(b) The assessment read "one-eighth interest in the oil, gas and mineral rights." This should have been clear that the assessment covered only 1/8 mineral right, but the record shows much confusion during the trial as to what was actually assessed. To clean up the question, please note from the record what was said at the hearing by T.J. Wills, attorney for the Smith County Oil Company: "The only issue involved in this litigation is the question of whether the property is taxable at all — the property assessed is not a one-eighth interest in the royalty interest but the one-eighth royalty received from the lease. And the contention of the appellant is that the one-eighth royalty received from the lease is not taxable, and that is the only question the taxpayer is presenting in this case."
It was evident that Smith County Oil Company had no royalty interest, and to avoid confusion (so they hoped, but actually to increase it) Mr. Wills further admitted: "In order that the record be not confused, it is again stated that there is no purpose in introducing the record of deeds or objecting to these assessments, because the Smith County Oil Company will assume the responsibility for the payment of taxes in event it is legally assessed."
(c) At the time there was outstanding an oil, gas and mineral lease from Smith County Oil Company to Hunt Oil Company, and said leasehold interest was assessed and taxes paid thereon. The issue at the trial of Smith County case in the lower court and also in the Supreme Court was whether the one-eighth royalty under the Hunt lease was subject to separate taxation, not whether fractional full partacipating mineral intrests when under lease were subject to taxation. Smith County Oil Company had full mineral rights under the lands, but not royalty under leases then or hereafter in force. The stockholders or distributees jointly owned all the royalty rights, under existing or subsequent leases. The attempted assessment in the Smith County case was on the "one-eighth interest in the oil, gas and other minerals." Smith County Oil Company owned all the mineral rights, except the royalty rights — the stockholders owned all the perpetual royalty rights. The assessment as made, taken literally, assessed only 1/8 of the mineral rights which if then under lease would entitle the owner to only 1/8 of 1/8 (1/64) royalty. If the assessment was meant to cover 1/8 royalty rights, necessarily it must have meant to cover only the 1/8 royalty under the Hunt lease. The confusion in this rather garbled record in the Smith County case removes the case as an authority on the simple question herein involved — whether the 1/2 full participating mineral rights of the Federal Land Bank are subject to taxation when they are under lease, and the lease has been assessed and taxes paid thereon.
Mr. Wills, attorney for the Smith County Oil Company, being anxious to limit the proposed assessment to the 1/8th royalty under the Hunt lease, agreed that Smith County Oil Company would assume responsibility for taxes (for the royalty owners) if legally assessed. A correct reading of the assessment as made, indicates that the assessment was on nothing more than a 1/8th full participating mineral right. Read it again, and you will agree that if Smith County Oil Company in fact only owned (which it did not) 1/8 mineral rights under the lands, then under Section 9770 said assessment would have been correct, as taxation of a separately owned interest in land. As shown by the record in the case, all parties, attorneys, assessors, clerk and others sought to relieve the confusion by agreeing that all that was assessed was the 1/8 royalty under the Hunt lease. Having rested their case on this theory, the Supreme Court held that 1/8 royalty under the particular lease covered oil and gas when produced only and not subject to separate assessment. The picture of the Smith County case is that one-eighth full participating mineral interest was in fact assessed, and was treated as covering only a one-eighth royalty under the Hunt lease. With this confusion in the record, we could naturally expect confusion in the decision, and the applicability thereof. This present case, therefore, for the first time asks whether a fractional full participating mineral interest is subject to separate assessment and taxation, whether under lease or not. Unquestionably, it is or Section 9970 is meaningless and the last decision in Hendrix v. Foote, 38 So.2d 11, on the Suggestion of Error, is to be given no force or efficacy.
The Smith County decision was essentially wrong under any theory and we agree with the dissenting opinions therein, but if it should be extended to eliminate the fractional perpetual mineral interests of the Federal Land Bank which are under lease, the result would be:
(a) To invalidate the assessment for taxes of fractional mineral interests provided for in Section 9770, except as to mineral interests, not under lease. This would eliminate every valuable mineral right and subject to taxation only minerals which had no lease appeal. Section 9770 covers "any mineral, gas, oil . . . or similar interests in real estate . . . any leasehold in the elements above enumerated." In other words, Section 9770 specifically says minerals and leaseholds shall be separately assessed. Both are valuable rights. Fractional minerals have no value except when under lease and production of oil gas results from operations, other than a speculative value based on the hope and expectancy that such mineral rights will ultimately be worth leasing and development. It was not the purpose of Section 9770 to eliminate any element, or interest in land, which are subject to separate ownership and separate valuations; on the contrary the purpose and intent of Section 9770 was to embrace every interest or element of value when separately owned. Hundreds of thousands of dollars have been paid by mineral holders on their separately owned fractional mineral rights regardless of whether same were under lease or not. Such taxes, if erroneously paid, are not now subject to refund, thanks to the Legislature in passing in the act found in Chapter 445, Laws of 1948.
(b) If the Smith County rule is to be applied in this case, as an example, then the machinery of enforcing Section 9770 by any taxing authority would be hamstrung into utter uselessness. Oil and gas leases expire at will of the lessee, or holder of the lease. When the minerals are under a lease, the Federal Land Bank's position is that the assessor cannot assess the minerals, but as soon as the lease expires, from any cause, then the mineral interest becomes subject to assessment and taxation; that is until it is leased again. Thus a ridiculous situation would be created.
Owners of full participating mineral rights, as in the case, when under a particular lease, are entitled not only to a proportionate part of the 1/8th royalty under the lease, but have rights and privileges which extend far beyond the life of the particular lease, as follows:
(1) Said mineral holder must execute all subsequent leases which embrace his minerals.
(2) He receives the bonus or purchase price, for every lease that may be executed to cover said minerals.
(3) He receives delay rentals each year under said lease and all leases thereafter which are continued, except by operations or production.
(4) He receives the royalty of 1/8th of his fractional mineral interest in the event of production.
(c) The 1/8 royalty in the Smith County case, attempted to be assessed, was the royalty only under the Hunt lease, and is necessarily only a party of the particular lease. The fractional full participating mineral interests of the Federal Land Bank is a perpetual right to participation just like the land owner, in leasing, bonus, rentals, as well as royalties under production. The facts in this case are wholly dissimilar with the Smith County case; that which is sought to be taxed is wholly different and is not an undivided part of any particular lease that dies with the lease.
The Federal Land Bank also takes refuge in the decision of the Supreme Court in the case of Stern v. Parker, 25 So.2d 787, Suggestion of Error overruled, 27 So.2d 402. This case was decided when the suggestion of Error in the Smith County case was pending on April 22, 1946. Our opponents say that even if the Smith County Oil Company case does not apply so as to render unassessable the fractional full-participating mineral rights of the Federal Land Bank, still the Bank owes no back taxes on the said mineral rights under the doctrine of Stern v. Parker because (a) Taxes were paid for 1946 by the owner on the lands. (b) Taxes were paid for 1946 by the leaseholder on the oil and gas leases on said lands. (c) Stern v. Parker makes it unnecessary for a fractional mineral holder to concern himself about assessment and payment of taxes on his mineral interest, if a prudent land owner or a leaseholder pays his taxes.
This calls for a careful consideration of Stern v. Parker about which we make the following observations:
Stern v. Parker is dealing only with tax sales. The case specifically held: "Where deeds contained provision reserving in grantors, their heirs and assigns a one-half interest in all deposits of clay, oil and minerals, together with right of entry, the estate reserved in the lands was subject to ad valorem taxation." ( 25 So.2d 787). In this case the owner of the fractional mineral interests took a chance and did not comply with Section 9770 and assess his minerals and pay taxes thereon. The argument was made that since the mineral holder owned his minerals separately from the land owner, it was encumbent on the tax assessor to separately assess the minerals. In substance the court held that the duty of assessing the separately owned minerals was not upon the County assessors but upon the owner and the owner of the minerals would lose them if the minerals were not separately assessed and there was a tax sale of the lands. A pertinent quotation is herewith cited from Judge Griffith's opinion on the Suggestion of Error: "Here the assessment was of the appropriate surface description without any reservation or qualification or limitation appearing anywhere on the assessment rolls. It included therefore appellants' horizontal estate and inasmuch as they made no objection in writing as required by Section 9790, Code 1942, the assessment so made became unassailable as to the matter in pais upon which appellants seek now to rely. And this was the ultimate basis upon which our original opinion in this case is founded, as an unbiased examination of it will disclose (27 So.2d 403).
"Undoubtedly it was a purpose of Section 9770, Code of 1942, to allow the assessments of the separate interests therein mentioned to be so made as to relieve the owners of such interests of any concern or responsibility as to any other interest in the described parcel of land" (27 So.2d 403-404).
(a) There is nothing wrong in the decision in Stern v. Parker, but it must not be misunderstood. When land is assessed properly, with no exceptions of separate ownership of interests therein, a tax sale of such land carries with it all houses, fixtures, gravel, timber and minerals of every nature situated in, on or under the land. However, these separate ownerships are still subject to separate assessment and taxation under Section 9770, and must be separately assessed, and it is encumbent upon the owners of such separate interest to have same assessed and pay taxes thereon. However, said owner suffers a penalty as it were, if he doesn't perform his duty to separately assess his interest by losing same at the tax sale of the land. Until said separately owned mineral interest is lost, however, it is subject to assessment under Section 9770, and to back-assessment by the State Tax Collector under Setion 9184, the procedure of which has been followed in this case.
(b) The Federal Land Bank relies on Smith County Oil case to relieve it of assessment of its minerals under lease, but with assurance they argue that regardless, the fact remains that the fractional mineral rights were not assessed and since the land owner and also the leaseholder paid his taxes, then this lets the Federal Land Bank out under Stern v. Parker.
(c) Thus, apply the rule of Stern v. Parker; the result would be:
(1) To utterly destroy the effect of Section 9770 as to separate mineral ownerships since a mineral owner could simply wait to see if the land owner paid his taxes on the land, when assessed as a whole fee, as is universally the case.
(2) Render the back assessment of such fractional mineral interests which have thus excaped assessment (whether deliberate or not) impossible by local tax collectors, assessors or the State Tax Collector. This would provide a loop-hole for any owner of separate interests in land to escape his share of the tax burden by "doing nothing" but watching and waiting to see if the owner pays his taxes. Whether the owner pays his taxes or not, said separate ownerships or interest in the lands, such as minerals of every kind and character are subject to taxes under Section 9770; this the crux of the case, Hendrix v. Foote, supra.
Beverly C. Adams, and E.F. Steiner, for appellee.
On January 1, 1946, appellee owned no interest in the minerals. All interests, in praesenti, had, prior thereto, been conveyed to the lease-holders. Appellee had left to it only a reversionary interest. Stokley v. State (1928), 149 Miss. 435, 115 So. 563; Pace v. State (1941) 191 Miss. 780, 4 So.2d 282; Armstrong v. Bell (1946), 199 Miss. 29, 24 So.2d 10; Koenig v. Calcote (1946) 199 Miss. 435, 25 So.2d 763.
Prior to execution of the mineral leases, appellee owned the fee simple title to a 1/2 interest in the minerals and the right of ingress and egress for the purpose of drilling, mining, exploring and producing minerals (McNeese v. Renner, 197 Miss. 203, 21 So.2d 7).
The granting clause in the leases involved is in the following language: "Lessor in consideration of . . . Dollars, in hand paid, the royalties provided, and the agreements of the Lessee herein contained, hereby grants, leases and lets exclusively unto Lessee for the purposes of investigating, exploring, prospecting, drilling, and mining for and producing oil, gas, and all other minerals, except sand and gravel, dredging and maintaining canals, constructing roads and bridges, and of laying pipe lines, building tanks, power stations, telephone lines, and other structures thereon to produce, save, take care of, treat, transport, and own said products, and building houses for its employees, and in general for all appliances, structures, equipment servitudes, and privileges which may be necessary, useful, or convenient to or in connection with any such operations for complete development and production of any or all of such minerals conducted by Lessee thereon the following described land. . . ."
Thus it will be seen that not only the minerals in place are conveyed together with the exclusive right to drill, but actually the oil when brought to the surface is owned by the lessee. One of the considerations for the lease (paragraph 1, Article III of the lease), is that the lessee shall "deliver to the credit of Lessor" one-eighth of the oil produced from the property. The practice of the mineral industry in Mississippi is for the oil company to sell the oil when produced and pay the lessor one-eighth of the value thereof. Irrespective of what language may appear in other leases, we have here a conveyance of, not a demise of, an interest in land. Title will revert to the lessor on any anniversary date of the lease upon failure of the lessee to pay delay rentals or at the end of the primary term unless at the end of such term there is drilling or production. The conveyance may be in perpetuity. Under Article V of the lease, the term is extended in the event of production of minerals "so long as the same is produced from said land in paying quantities." Under Article IX of the lease, there is a general warranty of title.
In construing oil and gas leases similar to the ones here involved, in the case of Koenig v. Calcote, supra, the court unanimously held that the lessee acquired "a determinable fee" in the minerals and the lessor had left to him "a reversionary fee interest".
Since the Texas case of Stephens County v. Mid-Kansas Oil Gas Company is a leading case on the determinable fee doctrine, since it was held there that the minerals conveyed to the lessee were subject to tax, and since our court has cited that case with approval in several decisions, we take the liberty of submitting the following quotations therefrom: "But it is earnestly insisted that the instruments conveyed only incorporeal hereditaments appertaining to the lands, and that the terms of the instruments precluded the vesting of title to the gas and oil save as personalty after being brought to the surface. . . .
"Ownership of the gas and oil in place meant having the exclusive right to possess, use, dispose of the gas and oil. The grantors were clearly devested of the right to either possess, use, or dispose of the gas and oil in place in the lands described in the instruments here involved as soon as the instruments were executed. At the same instant, the right to possess, use, and dispose of such gas and oil in place passed to the grantees in said instruments and to their assigns. Complete divestiture of title to the gas and oil could hardly be more clearly evinced than by the necessity for an express grant or reservation of even enough gas for domestic use in the grantors' dwellings. Dominion over a thing could not well be completer than it is in those persons who may, at their will, assign it to any other person, with or without consideration, for a time which may be forever. Sims v. Sealy, 53 Tex. Civ. App. 518, 116 S.W. 630. The fact that whoever owns the gas and oil, under these instruments, is subject to certain obligations to the former owners, express and implied, with regard to exploration for, and production of, the gas and oil, and with regard to the payment of royalties, in no wise reinvests the former owners with title. Nor does the possibility of future reversions accomplish present reinvestitures of title in the former owners. . . .
"In Wolfe County v. Beckett, 127 Ky. 252, 17 L.R.A. (N.S.) 689, 105 S.W. 447, the court of appeals of Kentucky had before it leases granting 'the right to drill . . for oil and gas for a definite term of years, and, in case oil or gas is found in paying quantities, to continue said operations so long as same is found in quantities that pay', in consideration of certain royalties in oil and gas. In holding such lease as effective as conveyances would have been to pass title to the oil and gas in place, the court said: 'During the continuance of the lease, the ownership of the oil or gas is vested in the lessee; and, as the lease continues so long as oil or gas may be found in paying quantities, does not the lessor part with his title to the oil in situ for all practical purposes, for the reason that has no value if it cannot be produced in quantities that pay? We therefore conclude that the form of contract is immaterial, and that it makes no difference whether the oil or gas privileges be conveyed by deed or lease, just so the effect of the instrument is to vest in the lessee all property rights to the oil or gas that maye be found in paying quantities on the leased premises.'"
It is therefore demonstrated that every present interest in real estate owned by appellee; i.e., minerals in place and the right of ingress and egress to the surface was conveyed to the lessee upon the execution of the oil and gas lease. There remains in appellee only the reversionary interest in the minerals in place.
The general rule, followed in this state, is that where a present interest and a reversionary interest are vested in different persons, the tax burden is to be borne by the owner of the present interest. The rule was well stated in 51 Am. Jur. Taxation, Section 947 as follows: "Generally, when present and future interests in the same property are owned by different persons, as in the case of life tenants and remainder-men, the duty of paying taxes is upon the owner of the present interest."
Appellee does not own a present interest in the minerals. The leaseholder owns all of the minerals under the ground before production and owns all the minerals brought to the surface after production. In consideration for the conveyance of the ownership of the minerals, the lessee pays appellee, as long as the lease is in effect, either delay rentals or the value of 1/8 of the minerals produced and brought to the surface. Is there anything taxable there? When land is sold on credit, is the promissory note for the consideration subject to real estate ad valorem taxation? We can see no difference in the two cases.
The general rule is that it makes no difference in determining if there has been a complete severance of the minerals, whether the mineral rights are conveyed by deed or lease so long as the effect of the instrument is to vest in the lessee all property rights to the minerals. This is clearly set out in 51 Am. Jur. Taxation, Section 437, as follows: "However, the fact that the instrument creating the right is called a lease is not conclusive that it does not sever the fee. The form of contract is immaterial; it makes no difference whether the mineral rights are conveyed by deed or lease, so long as the effect of the instrument is to vest in the lessee all property rights to the minerals."
Appellant quotes in Point 1 of her brief the following from the case of Merrill Engineering Co. v. Capital National Bank, 192 Miss. 378, 5 So.2d 666: "Moreover, it is well settled by the great weight of authority from other jurisdictions that until brought to the surface and reduced to possession, oil and gas constitute an interest in real estate and not personal property, . . ."
This is the very point we have been trying to make, The entire interest in the minerals, the right to explore for them, the right to take possession of them, the right to bring them to the surface, and the ownership of them after they are brought to the surface are vested in the lessee. Only after the minerals "are brought to the surface and reduced to possession" of the lessee is 1/8 thereof credited to appellee.
On January 1, 1946, appellee was the owner of undivided interests in oil, gas and mineral rights in and under certain lands in Madison County, Mississippi. These mineral interests were leased by appellee prior to said date under the usual ten year oil, gas and mineral lease whereby appellee, as lessor, received an initial cash consideration which is usually termed a bonus, and this kept the lease alive for a period of one year; the obligation of drilling by the lessee could be deferred and the lease kept in effect thereafter from year to year by the payment of an annual delay rental; in the event of the production under the lease the lessor was to receive as a royalty one-eighth of the oil, gas and other minerals produced and saved. The surface rights and also other undivided oil, gas and mineral interests were owned by other parties, and the said surface and other mineral interests were placed on the 1946 land assessment roll of the county as a flat assessment upon the land without excepting upon the assessment roll the lease or the separate interests owned by appellee; the lease was separately assessed to the lessee therein named. The appellee filed with the tax assessor of the county a list of the oil, gas and mineral rights which were separately owned by it. Thereafter there was rendered the decision of this court in Smith County Oil Co. v. Board of Sup'rs. of Simpson County, 200 Miss. 18, 25 So.2d 457, 26 So.2d 685, and upon the basis of that decision the appellee withdraw its assessment upon its undivided oil, gas and mineral interests under lease, and said interests were not assessed to appellee and no taxes thereon were paid by it for the year 1946.
On May 14, 1948, the appellant gave written notice to the county tax assessor to enter a back-assessment against appellee for 1946 taxes on said separately owned mineral interests, and on the same date the tax assessor gave notice to appellee that such assessment had been made. At the June 1948 meeting of the Board of Supervisors of Madison County the appellee appeared and filed written objections to the assessment, and at the same meeting the Board entered an order sustaining the objections and disapproving the assessment and striking the same from the roll. From that order the State Tax Collector appealed to the Circuit Court where the cause was tried upon an agreed statement of facts. Following the holding in the Smith County Oil Co. case, supra, the Circuit Court held that since there was a valid assessment of the leasehold to the leaseholders, and of the lands to the surface owners, the, mineral interests of appellee were necessarily included in one or the other of said assessments and, therefore, did not escape assessment and were not subject to back-assessment, and, consequently, the back-assessment was disapproved and disallowed. From that action the State Tax Collector appeals.
From the foregoing statement of the case it will be seen that there is raised in this case exactly the same question which was decided by a divided court in the Smith County Oil Co. case, supra, and we are confronted with the question whether we shall follow that decision or overrule it. It was therein held that the owner of a separate mineral interest under lease, where the lease is assessed for ad valorem taxes, had either an interest in minerals under the surface which cannot be inspected and appraised for taxation or a royalty in the minerals when produced which does not become assessable for ad valorem taxes until produced and brought to rest upon the surface. This conclusion was drawn from some of the language used in the controlling opinion in Gulf Refining Co. v. Stone, 197 Miss. 713, 21 So.2d 19, which was unnecessary for a decision of that case, and which was cleared to some extent in the opinion on the suggestion of error in Hendrix v. Foote, Miss., 38 So.2d 111, not yet reported in the state reports, wherein the Smith County Oil Company case was modified if not specifically overruled.
We do not herein disturb in any manner the conclusion which was reached in Gulf Refining Co. v. Stone, supra, but we are of the opinion that Smith County Oil Co. v. Simpson County, supra, was erroneously decided and should be overruled if not already overruled by Hendrix v. Foote, supra.
Section 9770 of the Mississippi Code of 1942 provides "Whenever any buildings, improvements or structures, mineral, gas, oil, timber or similar interests in real estate, including building permits or reservations, are owned separately and apart from and independently of the rights and interests owned in the surface of such real estate, or when any person reserves any right or interest, or has any leasehold in the elements above enumerated, all of such interests shall be assessed and taxed separately from such surface rights and interest in said real estate, and shall be sold for taxes in the same manner and with the same effect as other interests in real estate are sold for taxes. All interests in real estate herein enumerated shall be returned to the tax assessor within the same time and in the same manner as the owners of land are now required by law to list lands for assessment and taxation and under like penalties. . . ."
(Hn 1) This statute was discussed at length in Hendrix v. Foote, supra, and we do not now elaborate further thereon except to note that under the plain provisions thereof every separately owned mineral interest in land is subject to separate assessment, and this includes the type of mineral interest owned by appellee in the case at bar, and, although under this statute the lease thereon is subject to separate assessment, this does not relieve the separately owned mineral interest from liability to such assessment.
It is no longer subject to argument in this state that separately owned oil, gas and mineral rights constitute an interest in real estate, even though the same be under lease. Indeed that very right is the one thing that is chiefly the subject of barter and sale in the oil business in this state, and such rights have a market value. The fact that such value is not uniform throughout the state, and is based largely upon what the oil companies may believe to be the prospects of production after geophysical and geological exploration and tests, does not in anywise alter the fact that such rights do have a market value.
In 4 Summers Oil and Gas, Perm. Ed., sec. 783, it is said "A separate mineral fee interest in oil and gas in place created by grant or exception, the interest created in the lessee by the ordinary oil and gas lease, the royalty interest reserved in the lessor in an oil and gas lease, a perpetual royalty interest in oil and gas created prior to lease for production, and an overriding royalty interest created out of the interest of the oil and gas lessee are all property interests, real or personal, and subject to taxation. . . ." (Italics supplied).
And in 4 Summers Oil and Gas, Perm. Ed., § 797, it is said "In those jurisdictions where it is held that an oil and gas lessee's interest is taxable as real or personal property, assessments are made upon the value of that interest and not upon the entire mineral value of the land. Under the usual royalty clauses of oil and gas leases, one-eighth of the oil and gas, or the value thereof, is reserved to the lessor. This is a property interest and is therefore taxable. . . ." (Italics supplied).
It is worthy of note in determining the legislative intent in the adoption of said Section 9770 that within less than three weeks after the decision in the Smith County Oil Co. case the legislature adopted Chapter 409 of the Laws of 1946 and provided for the payment of a mineral documentary tax upon the very type of mineral interest herein involved and further provided for exemption from ad valorem taxation of such mineral interests from and after January 1, 1947, conditioned upon payment of such mineral documentary tax, and the agreed statement of facts in this case shows that appellee paid that tax and secured its exemption from ad valorem taxation for 1947 and thereafter.
(Hn 2) From the foregoing it is seen that not only under our statute but also under the general law as announced in Summers the royalty interest reserved in the lessor in an oil and gas lease is subject to ad valorem taxation, and it will be further noted that the interest of the lessee is not to be assessed upon the entire mineral value of the land but only upon the value of the leasehold interest.
It is contended by appellee that these views are not in accord with the holding in Stern v. Parker, 200 Miss. 27, 25 So.2d 787, 791, 27 So.2d 402. (Hn 3) In that case it was held that the owner of a separate mineral interest is under duty to see that his interest is properly entered upon the assessment roll and assessed for ad valorem taxation and that if he is derelict in this duty and permits the land to sell to a third person for taxes upon an assessment of the whole property to the surface owner without any exception of a separately owned mineral interest, and further permits such a tax title to mature in the purchaser, he cannot afterward have his mineral interest back-assessed and save it from the consequences of the tax sale. The court in that case did not hold that the owner of a separate mineral interest cannot be back-assessed when he has failed to list his interest for assessment and when the entire estate is assessed to the surface owner. What the court did hold was that the owner of the separate mineral interest cannot avoid his duty to see that his mineral interest is assessed and take chances on the surface owner paying taxes on the whole, and then claim as a matter of right that the mineral interest should be back-assessed and takes out the tax sale "after it had been sold for defaulted taxes." Stern v. Parker was correctly decided and is not departed from in this opinion.
Upon the views above expressed Smith County Oil Co. v. Board of Sup'rs of Simpson County, supra, is hereby specifically overruled.
(Hn 4) Appellee contends that the decision in the Smith County Oil Co. case constituted a rule of property upon which it relied in withdrawing its 1946 assessment upon its separately owned mineral rights under lease, and that for this reason our decision should not be made retroactive if that case is overruled. The rule invoked by appellee has full application in cases where the obligation of contracts entered into in reliance upon the earlier decision would be impaired and in cases where vested rights acquired in reliance upon such decision would be injuriously affected, but it is also the well settled rule that in other cases courts of final decision may expressly define and declare the effect of a decision overruling a former decision as to whether or nor it shall be retroactive, or operate prospectively only. 21 C.J.S., Courts, § 194, p. 327. (Hn 5) A majority of the court is of the opinion that this decision should be made retroactive to the extent of appellee's liability for taxes, interest and costs, but not as to penalty, the liability for penalty being denied for the reason that it is here shown that appellee, in withdrawing its 1946 assessment on separately owned mineral rights under lease, acted in good faith and in full reliance upon the Smith County Oil Company case.
Accordingly the judgment of the lower court is reversed and the cause remanded for further proceedings not inconsistent herewith.
Reversed and remanded.
Alexander, J., took no part in the consideration or decision of this case.
I concur in the result reached in the controlling opinion, but respectfully dissent from overruling Smith County Oil Co. v. Board of Sup'rs of Simpson County, 200 Miss. 18, 25 So.2d 457, 26 So.2d 685. I think that we went as far as we should go in the opinion of the Suggestion of Error in Hendrix v. Foote, Miss., 38 So.2d 111.