In a petition for rehearing filed in this case appellant contends: 1. That the right of a desert-land entryman to the use and enjoyment of lands to which the United states owns the fee title is not real property nor taxable as such under North Dakota Statutes; 2. That if this right is taxable as real property the assessment thereof was void for the reason that at the time of the assessment the county auditor had failed to give the notice required by § 2304a2 Supplement to the Compiled Laws of 1913. Neither of these contentions was presented in the oral argument or in the brief which appellant filed in the case in this court. Since we have held that the interest of the entryman is taxable and since appellant now takes issue with that holding we think it proper to amplify what we said upon that question in the original opinion.
In the opinion heretofore filed, we said that the right of the *Page 444 entryman to the possession, use and the fruits of the land was real property under the provisions of § 5249, Compiled Laws 1913, which declares that real property includes "that which is incidental or appurtenant to land. Appellant urges that we overlooked § 5252, Compiled Laws 1913 which he states clarifies and limits the meaning of the phrase "incidental or appurtenant to land" as used in § 5249 so that it includes only easements. It is, however, unnecessary for us to resolve this question as there is a more direct route to the result we have announced.
Section 2076, Compiled Laws 1913 provides: "Real property, for the purpose of taxation, includes the land itself, whether laid out in town lots or otherwise, and, except as otherwise provided, all buildings structures and improvements (except plowing and trees thereon) and all rights and privileges thereto belonging or in any wise appertaining, and all mines, minerals, quarries in or under the same." This section expressly subjects rights and privileges appertaining to real property to taxation as such. But, appellant says they may not be taxed separately but only as an adjunct to the land to which they appertain. The question as to whether or not rights or privileges, held by persons who are not exempt from taxation, in real property the fee title to which is held by one who is exempt from taxation, are taxable as real property was fully and carefully considered in the case of Otter Tail Power Co. v. Degnan, 64 N.D. 413, 252 N.W. 619. In that case we held that the Otter Tail Power Company's right to the use of the tax exempt property of the city of Devils Lake was taxable as real property under the provisions of § 2076, supra. It follows that the rights and privileges in land held by the appellant in this case are taxable as real property. But appellant says that while the result in the decision is correct, the court's construction of § 2076, supra, is incorrect and the result should have been reached by a construction of § 2118, Compiled Laws of 1913. It may be that the decision could have rested upon a construction of § 2118, supra, but nevertheless we did construe § 2076 and that construction has been the settled law of this state since 1935. We think the reasoning of the decision in this case is sound and amply supported by cited authority and we therefore adhere to it.
The second proposition contended for in the petition, viz.: that the *Page 445 assessment of the tax was void because the county auditor failed to give the notice required by § 2304a2 Supplement to Compiled Laws 1913, must of course rest in the first instance upon proof that the required notice was not given. There is no such proof. It is true as appellant claims that the record of the tax proceedings which is in evidence does not show affirmatively that the notice was given but this is not sufficient. A tax deed is prima facie evidence of the regularity of all proceedings from the assessment and valuation of the land by the assessor up to the execution of the deed. Comp Laws 1913, § 2206. The presumption is that the county auditor gave all the notices required by statute and this presumption can only be overcome by direct evidence that such notices were not given. Twedt v. Hanson, 58 N.D. 571, 226 N.W. 615; Peterson v. Reishus, 66 N.D. 436,266 N.W. 417, 105 A.L.R. 724. See also Fisher v. Betts, 12 N.D. 197, 96 N.W. 132; Pine Tree Lumber Co. v. Fargo, 12 N.D. 360, 96 N.W. 357; Anderson v. Roberts, ante, 345, 1 N.W.2d 338.
The petition for a rehearing is therefore denied.
BURR, Ch. J., and NUESSLE, CHRISTIANSON, and MORRIS, JJ., concur. *Page 446