I regret that I find myself unable to agree with the court in the conclusions arrived at or the reasoning upon which they are based. If the question was of minor importance, and did not vitally affect the public by opening the door and making it possible for the commonwealth *Page 276 to lose a substantial part of the revenue raised by taxation needed in the prosecution of the multiplied affairs of state, I might acquiesce, or at most content myself with merely registering my dissent without expressing my views. But, under the circumstances, I feel impressed with the duty of stating the reasons of my dissent without arguing or elaborating upon them, since a mere statement of them fulfills my purpose, and will be sufficiently convincing, I conclude, to the legal mind.
As is admitted in the opinion, the mineral lease involved had the effect to separate into two taxing units what was theretofore only one. Prior to the lease, it was the duty of the lessor, who was the owner of the entire piece of real estate, including the surface and all minerals under it, to assess the single unit at whatever was its reasonable market value, including the right to take coal therefrom, but which latter was by the lease transferred to the lessee, and it became his duty thereafter to assess it at its reasonable market value for the purpose of taxation as long as the right, first conferred upon him by the lease, lasted and remained separate from the fee. The original single unit for the purposes of taxation would be thus reduced by whatever was then the value of the right conferred by the lease. When the owners of such separated units of property for the purpose of taxation assessed them, it is my opinion that the commonwealth then became entitled to its lien and the right to enforce it, for the taxes arising from each of such assessments, and which together represented the whole value of the land, although as between the lessor and the lessee it was the duty of the latter to pay the taxes. When he by any means forfeited his right, which was an exclusive one, to take coal from the land, the unit that he had assessed for taxes did not thereby become extinct, but it only reverted, and went back to the lessor with whatever burdens the law in the meantime had put upon it, the same as if he, in any manner, had transferred it to a stranger. Such burdening law was in existence at the time the lease was made, and the lessor will be conclusively presumed to have made it with knowledge of it, and also, as I conclude, with knowledge of the right of the commonwealth to enforce the collection of its taxes as against that exclusive right which he had conferred upon the lessee by his voluntary lease, i. e., the new taxable unit that he thereby created, for the unexpired time *Page 277 it had to run, and by which, as I have stated, the remaining portion of his land was relieved of taxation to the extent of that value. I do not concede to him, as does the opinion, the right to enter into a contract with his lessee whereby the latter, through his own derelictions in bringing about a forfeiture of the lease, may deprive the commonwealth of the right to collect its duly assessed taxes as against the separate unit created thereby. Of course, I do not contend that the commonwealth would have a lien on the right created by the lease for the assessments made after the term for which it was given expired, but I do contend that it has such lien for the unexpired term of the lease at the time the assessment was made.
Illustrating my position: If the lease is for 20 years, and the assessment is made, say, for the eighteenth year, there would then be 2 years within which the exclusive right created by the lease was separated from the fee and in the lessee, and it is my view that the commonwealth would have the right to enforce a lien against the value of such right for 2 years (being the unexpired time when assessed) for the purpose of collecting its taxes, As a natural consequence, it is my position, and to which I have hereinbefore adverted, that it is incompetent for the parties to provide for a situation, the happening of which will operate to deprive the commonwealth of its just taxes, and that position is upon the theory that, when the lease became forfeited by the derelictions of the lessee, the separate unit for the purposes of taxation created by it was not destroyed, but reverted under the terms of the contract, and became reinvested in the lessor, subject, however, to the right of the commonwealth to enforce its past-due taxes against that right the same as it could have done for the particular year as against the lessee. In other words, the merger did not destroy the lien, but onlylessee's title to the property assessed by him.
Some supposed cases might serve to illustrate and elucidate my position: If one owning a vacant lot should contract with another whereby the latter was given the right to place improvements thereon, which he later did, and suppose that it thereby became the legal duty for the lessee, or improver of the lot, to assess and pay the taxes on such improvements, which assessment he made, but failed to pay the taxes. Then suppose that, because *Page 278 of some provided method for a forfeiture, the owner of the lot acquired the title to the improvement after it was assessed, and by operation of the forfeiture the owner of the lot also became the owner of the improvement. Could it be logically contended that he would take it under the forfeiture free from the lien of the commonwealth for unpaid taxes because the title to it was transferred and became merged under the leasehold agreement into the holder of the title to the land? The only difference that I can draw between the illustrated case and the instant one is that the thing assessed in the former was corporeal property, while in the latter it is incorporeal property. In either case the property assessed was not, I repeat, destroyed because of the forfeiture, but only became the property of a new owner.
Further illustrating: Suppose that the lessor, in providing for a forfeiture, should stipulate that the right or interest procured by the lease in the event of a forfeiture should revert to a third person instead of to himself. Could it then be insisted that the right or interest would be held by such third person, in whom the forfeiture vested it, free from the lien of the commonwealth for taxes that had theretofore been assessed against it? If the opinion is correct, that question could only be answered in the affirmative upon the theory that, when the lessee became divested of title, the property thereunder, as well as his title, was totally destroyed as though it had been consumed by fire or by any other destructive agency. Surely, that position could not be sustained by logic, and it is my contention that the third person would take the right created by the lease burdened with the commonwealth's lien for accumulated taxes while it was owned by the lessee, the prior owner. If I am correct in that conclusion, I can draw no distinction between such supposed case and the one where the right reverts, not to a stranger, but to the lessor. It has the same value if he again becomes its owner through the operation of the forfeiture as if the third person became its owner through the same manner as in the supposed case. The lessee in assessing the mineral right put no greater or different burden on it than would have been borne by the lessor if no lease had been given.
Under the principles of the court's opinion, the same consequences would follow if there had been an outright sale of the minerals followed by a conveyance of the fee-simple *Page 279 title, but in which conveyance there was contained a clause forfeiting the title upon the failure to perform a condition subsequent, since in that case there would be no more complete separation of the mineral title from the surface title, for the purposes of taxation, than the giving of a fixed lease term conveying such mineral right for the limited period; the duty of the mineral owner in the latter case to pay the taxes on his leasehold rights being imposed by statute in this jurisdiction, which in effect creates a separate estate in the lessee for the purposes of taxation for the full period of the lease the same as if the minerals had been purchased outright. The result of the opinion is to create the conditions wherein the dodger of taxes on mineral rights may join in the chorus, and joyfully sing: "This is the way I long have sought and mourned because I found it not," since all mineral leases that our statute requires to be assessed for taxation contain some character of forfeiture clause upon broken conditions subsequent. Under the principles announced in the opinion, all that is necessary to complete the defense to the right of the sovereignty to enforce its lien is for the lessee to breach the condition subsequent contained in his lease, followed by a reverter of his rights to the lessor who takes the then reconsolidated estate free of all taxes due on the mineral. The next day he can confer that right on another by executing a new lease, and the same process can be followed perpetually without the mineral right contributing anything to the public treasury for the support of the government.
I entertain no doubt but that the reasoning herein employed could be fortified by adjudications, and I am positively convinced that it is sustained by logic and fundamental principles of law and because thereof I must respectfully dissent from the opinion, and in which I am authorized to say that Judges Logan and Willis concur.