OPINION OF THE COURT BY
FREAR, C.J.(Perry, J., dissenting.)
The facts are sufficiently set forth in the dissenting opinion of Mr. Justice Perry.
As to whether the assessment is on the forest land or on the water privilege alone we think it must be taken to be on the for*547■mer, as the wording is to some extent ambiguous and both parties proceeded before the Tax Appeal Court on the theory that the assessment was on the land and the decision of that court is based on that theory, although there are other papers in the case pointing in the other direction.
Robertson & Wilder for the assessor. J. A. Magoon and J. IAghtfoot for the tax-payer.' In our opinion the forest land is not within the exempting ■statute, assuming that that statute is still in force, not because the appellant has leased certain rights in this land along with other lands, but because other use is actually made of this land under that lease.
The lease of the water privilege was made in 1899 at an annual rental of $8,000. The assessment of the forest land is $64,000 — estimated on the eight-year rental rule, but this lease and rental is of all three tracts, the 8000 and 836-acre pasture tracts and this 5000-acre forest tract, and the evidence shows that by reason of this rental the assessments of the two pasture tracts were raised the year before from $44,180 to $83,360, and the year before that the assessment of the 8000-acre tract was raised from $24,000 to $40,000. The assessment of the forest land was raised the year before that now in question from $7,500 to $12,500 and the year before that from $5,000 to $7,500. Thus not only should the value due to the lease be distributed among the three lands which it covers, and perhaps the better way would be to assess all three lands as a whole, but there is much reason to believe that at least a part of that value is included in the assessments of the two pasture tracts — what part is included in the pasture tracts and what part should be included in the forest tract, it is impossible to sav. Under these circumstances we think that the most that can be done is to place the valuation of the forest land at the amount at which the Tax Appeal Court placed it the year before on the evidence then produced, there being nothing to show that the value has changed meanwhile.
It is so ordered.