dissenting.
I agree with the conclusion of the Tax Court that the method of valuation of plaintiff’s land for tax purposes for the tax years 1966 and 1967 was discriminatory and therefore violated both the equality provisions of the Fourteenth Amendment and the uniformity provisions of the Oregon Constitution, Art. I, § 32 and Art. IX, § 1.
The evidence is sufficient to support the conclusion that the assessor’s action in appraising plaintiff’s *500property on a different basis than other property of the same kind was a part of the same pattern of systematic discrimination which characterized the appraisal in Penn Phillips Lands, Inc. v. State Tax Comm., 247 Or 380, 430 P2d 349 (1967).
As the Tax Court pointed out, the assessor, in fixing the value of the land of other taxpayers, combined the acreage in 85% of the tax lots involved, whereas in appraising plaintiff’s land the tax lots were treated separately.
The majority opinion takes the position that because plaintiff, in 1964, requested that its property be assessed according to individual tax lots and had sold most of the lots according to the division so made, it cannot now complain that the assessor adopted plaintiff’s plan. This point, which the Tax Commission argued below, was in my opinion adequately answered by the Tax Court in the following excerpt from its opinion:
“* * * This may have been true in 1964 but for the years involved herein, 1966 and 1967, the plaintiff is requesting the application of the schedule on the basis of its total acreage in the same manner the schedule is applied to other owners in Christmas Valley, and particularly to the other sub-dividers.” Penn Phillips Lands, Inc. v. Commission, 3 OTR 399 at 403 (1969).
The majority holds that plaintiff failed to establish discrimination in the fact that other subdividers were not assessed on the basis of the lots sold out of the subdivision but were assessed on the basis of the whole tract as if not subdivided.
I am not sure that I understand the court’s reasoning. The majority deems it significant “that only five *501of the 25 alleged ‘subdivisions’ were engaged in any sales activity prior to January 1, 1966.” I do not think that plaintiff, in proving systematic discrimination is limited to proof of sales prior to January 1,1966. The assessment of the property of others at any time before the trial, if evidencing discrimination, should be considered. The Tax Court noted in its opinion that “ [t]he evidence showed that at least 19 other owners in the nine townships were subdividing and selling, or attempting to sell, their land in various sized parcels,” and that “[i]n almost every instance where the ownership in the section exceeded 80 acres, the land was valued on a total acreage basis although the other sub-dividers had offered for sale or sold their land in parcels ranging from five acres to over 80 acres.”
The majority attempts to distinguish between the appraisal of the value of a subdivision in which “sales activity is beginning” and the appraisal of the lands included in a subdivision when “essentially all” of the tracts have been sold. I fail to see the relevancy of this distinction where, as in the present case, it is apparent that all of the lots, both those sold by plaintiff and those sold by the other subdividers, were in the same stage of development. West Hills, Inc. v. State Tax Commission, 255 Or 172, 465 P2d 233 (1970), relied upon by the majority, is not in point. In that case the subdivided lots were in different stages of development and therefore warranted different evaluations according to their development.
Continuing its treatment of the subdivision sales the majority then shifts to the point that plaintiff had requested the assessor to divide its property into tax lots as designated by plaintiff. This point is without merit for the reasons given by the Tax Court and which I have set out above.
*502The evidence also shows that the assessor valued plaintiff’s unimproved sagebrush land at a higher figure than similar land owned by others. The majority opinion apparently justifies this discrepancy on the ground that plaintiff’s land was actually sold, thus establishing a value, whereas the other land was not sold. I do not think that the mere fact of sale is enough to distinguish the value of lands in all other respects of the same character.
I would affirm the judgment of the Tax Court.
Sloan, J., joins in this dissent.