Nos. 22-0139 and 22-0140 – Collingwood Appalachian Minerals III, LLC., et al. v. Richard
L. Erlewine FILED
June 15, 2023
Justice Hutchison, concurring, in part, and dissenting, in part: released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
This case involves separate tax deed conveyances in Wetzel County: the first
are two 1991 tax deeds, and the second is a 1995 tax deed. As I explain herein, I concur
with the majority opinion’s ruling concerning the 1995 tax deed that conveyed a 25% share
of the oil and gas royalties to Trio Petroleum and Waco Oil & Gas. But I dissent to the
majority opinion’s interpretation of Richard Erlewine’s 1991 tax deed. I am firmly of the
belief that Erlewine received a tax deed to the land undivided from a different 25% share
of the oil and gas royalties in 1991, and thus, that the majority opinion’s interpretation of
the law of tax deeds is incorrect. Moreover, due to the ambiguities in the laws regarding
tax deeds, particularly West Virginia Code § 11A-3-63, I call on the Legislature to clarify
its statutes on this topic.
Any tax deed lawyer looking at the chain of title recorded in Wetzel County
would fairly conclude that in 1945, Osburn Dunham bought 135 acres of land on Huff
Ridge with a 25% share of the subjacent oil and gas from Joseph and Myrtle Rogers. In
1949, Dunham bought another 25% share from James Sivert. Hence, in 1968, when
Dunham conveyed to Russell F. Stiles “the same land conveyed to the said Osburn Dunham
by Joseph E. Rogers” in 1945, it is fair to say that Stiles purchased land with only a 25%
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share of the oil and gas. Dunham continued to own a 25% share. And if there is any
confusion or ambiguity here, after 1968, Stiles paid taxes on 25% of the oil and gas and
Dunham paid taxes on another 25% share. While the majority opinion claims that the 1968
deed is unambiguous, it is actually Dunham’s and Stiles subsequent conduct which
clarified the intent behind the 1968 deed. Hence, when Dunham defaulted and failed to
pay his taxes, and the sheriff sold Dunham’s 25% share to Trio/Waco (for a mere $16.36),
the 1995 tax deed to Trio/Waco was unassailable. Trio/Waco and its successors clearly
own that 25% share under the 1995 tax deed.
That said, it is the other 25% share bought by Stiles in 1968 that is at the
heart of my dissent. There are several legal opinions in the record, known to every tax
assessor in the State of West Virginia, which show that this case does not involve a
procedural hiccup. No, the assessor’s actions in this case were in clear violation of West
Virginia law.
It is a long-standing problem in West Virginia deed law that tax assessors
have improperly and illegally sent landowners, who own a unified estate, multiple tickets
taxing the estate in pieces. Tax assessors, for a century, illegally split oil and gas, or coal,
or whatever royalties or minerals from the surface estate and slapped a tax on each interest
separately. The result was multiple, improper assessments that caused confusion, the
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This analysis, obviously, sets aside any questions about the effect of the
1949 merger of Osburn Dunham’s oil-and-gas shares.
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duplication and overpayment of taxes, accidental defaults, and multiple overlapping and
competing tax deeds following an auction of such interests.
The records of the Attorney General demonstrate that tax assessors botching
the taxation of land, and illegally taxing the surface separate from the minerals, is nothing
new. More importantly, those records demonstrate tax assessors knew those actions were
illegal. For instance, nearly a century ago, in 1928, a landowner sold the coal underlying
his tract of land in Harrison County and retained an undivided interest in the rest (the land
and the non-coal minerals underlying the land). The tax assessor charged taxes to the
landowner for “the surface” and the landowner paid the taxes. Then, oil and gas were
discovered beneath the tract, and a prosecuting attorney questioned (on behalf of his
county’s tax assessor) whether the landowner had forfeited ownership of the oil and gas
interest because the landowner never paid a separate tax on the oil and gas.
In a 1948, opinion, the Attorney General concluded the prosecuting
attorney’s question was balderdash. Specifically, the Attorney General found absolutely
no authority for a tax assessor to split a landowner’s undivided interest in land into pieces
for tax purposes. The Attorney General said:
Until there has been a severance of an estate in minerals there
is no authority for a separate assessment of the mineral interest.
Conversely there is no authority to omit from assessment an
unsevered estate in minerals. . . . There is no authority for the
separate assessment of unsevered interests in land. In the
instant case therefore the owner and assessor must have
intended to report for taxation the entire estate remaining after
the severance of coal, including the unsevered interest in oil
and gas.
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Attorney General’s Opinion of April 20, 1948, 42 W. Va. Op. Att’y Gen. 309 (1948)
(emphasis added).
A similar question reappeared two decades later. In 1966, the Attorney
General issued an opinion to Hardy County regarding land on which a well was producing
natural gas. The natural gas was not severed from the land in the owner’s deed, but the
county assessor still issued two tax tickets to the owner: one for the land, and one for the
natural gas royalties. Regarding those tax tickets, the Attorney General explained that West
Virginia law – then, as now – requires an assessor to place one unified tax on “[t]he value
of land, the value of buildings, and the aggregate value” of all tracts or interests. W. Va.
Code § 11-4-2(5)(A). See also W. Va. Code § 11-4-9 (requiring the assessor to charge
only one tax for an owner’s undivided interest in any estate in land). Hence, the Attorney
General concluded:
Where land is owned and there has been no severance of an
estate in the gas mineral from such land, but there is known
natural gas within and underlying such land (regardless of
whether or not gas royalties are being paid to the owner thereof
pursuant to the terms of a lease), such land should be assessed
annually for ad valorem taxation purposes at its “true and
actual value”, taking into consideration all pertinent
indications of value, including, among any others, reliable
estimates, gas production reports, and royalties paid to the
landowner. Until there has been a severance of an estate in
the gas mineral, there is no authority for a separate assessment
of the gas underlying such land. There cannot be any separate
assessment of unsevered interests in land.
Attorney General’s Opinion of October 27, 1966, 52 W. Va. Op. Att’y Gen. 135 (1966)
(emphasis added).
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Accordingly, by 1966, it should have been clearly understood by county tax
assessors across the State that if an interest in natural gas has not been severed from the
land in a deed or will or other written conveyance, then there is no authority for the assessor
to issue a separate tax assessment for the gas underlying the land.
Now, recall that two years later, in 1968, Osburn Dunham conveyed to
Russell Stiles the same thing Dunham bought in 1945: “[a] tract of land situated on the
Huff Ridge” with an undivided, unsevered, one-quarter share of the oil and gas royalties.
Despite the repeated admonitions of the Attorney General, the Wetzel County tax assessor
mailed Stiles two separate tax tickets, one for the land, and one for the share of oil and gas.
This separate assessment had no basis in the law. Nevertheless, the Wetzel County assessor
sent two separate tax tickets for the next two decades.
One might presume the assessor was confused, or that the likely changing of
the guard caused a loss of institutional memory in Wetzel County. However, we have an
opinion from the West Virginia State Tax Department that applies to this situation. In
1988, the Department wrote a letter to the assessor of Wetzel County encouraging the
assessor to make “every effort” to repair his tax assessment books and to stop taxing
mineral interests separately from undivided land interests. The Department pointed out
that West Virginia Code § 11-4-2 prohibits a ”separate assessment of unsevered interests
in land.” More importantly, the Department made clear to the assessor that the tax sale of
a separate but unsevered mineral interest “would in all likelihood be considered invalid[.]”
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Letter from Robert A. Hoffman, Director, Property Tax Division, State Tax Department of
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West Virginia, to Ralph E. Phillips, Assessor of Wetzel County (November 7, 1988).
Hence, by 1988, the Wetzel County assessor’s office was clearly on notice
that it could not issue separate tax tickets on an unsevered, unified interest in land. Thus,
the sale of an improper duplicate tax ticket, for an interest in minerals, would in all
likelihood be considered invalid. Yet Russell Stiles continued to receive two tax tickets on
his unified estate, and when he failed to pay those two tax tickets, Wetzel County’s assessor
and sheriff put both of those tickets up for sale. Plaintiff Richard Erlewine bought one
ticket, and Trio/Waco bought the other, and those purchases resulted in the competing and
confusing 1991 tax deeds at issue in this appeal.
Now, put yourself in Richard Erlewine’s shoes in 1991 and ask, what did he
think he was buying at the tax sale? 3 The majority opinion repeatedly says he bought the
“property,” but the record says otherwise. If Erlewine had researched the chain of title, he
would not have seen the word “property” but, rather, would have seen the repeated use of
The letter indicates carbon copies were sent to “All County Assessors” in
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the State of West Virginia.
3
One question that might come to mind is whether Erlewine knew or should
have known that two tax sales were occurring regarding the Huff Ridge land on the same
day, and therefore “knew” that he was not buying the one-quarter oil-and-gas interest.
There is no proof of that in the record. We know, today, that there were two overlapping
sales because of the power of hindsight. Further, there is no duty in either the common law
or the West Virginia Code that requires a tax purchaser of one unpaid tax ticket to research
the other tax tickets being concurrently sold, to determine if the tax assessor has erred and
created any duplication or overlap.
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the word “land.” For instance, he would have seen that, beginning in 1968, Stiles had title
to “a tract of land situated on Huff Ridge” with an undivided interest in one-quarter of the
oil and gas. If Erlewine saw an advertisement for the tax sale of Stiles’s property and had
looked in the county assessor’s tax books, then he would have seen that Stiles owned 135
acres of land on Huff Ridge. When Erlewine paid the sheriff and assessor $6,000 for
Stiles’s unpaid taxes, the notices to redeem described the property as “Land – 135 Huff
Ridge” and “135 acres of land on Huff Ridge.” The 1991 tax deed to Erlewine said the
same thing: he was “the purchaser of 135 acres of land on Huff Ridge.”
My dissent, in part, is based on the majority opinion’s avoidance of the word
“land” and its clear meaning under West Virginia’s tax laws, a meaning which undermines
the majority opinion. The majority opinion repeatedly says that Erlewine only bought the
“property,” but that is incorrect. The numerous deeds and documents in the record say
Erlewine bought “135 acres of land” at the tax sale. West Virginia Code § 11A-1-1 says
that “[t]he words land or lands or tract or tracts of lands . . . shall be deemed to include an
undivided interest in any freehold estate in land.” Likewise, West Virginia Code § 11-4-9
says “the words land or lands or tract or tracts of lands . . . shall be read to include an
undivided interest in land and an undivided interest in any estate in land[.]”
Hence, from Erlewine’s perspective in 1991 when he received a tax deed to
“135 acres of land,” he could fairly believe that the tax assessor and sheriff followed the
law, and believe he had purchased “an undivided interest in any freehold estate in land” or
an “undivided interest in any estate in land” that had been owned by Stiles, and by Dunham,
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and by Rogers. In other words, Erlewine could believe he bought an undivided interest in
135 acres of land and one-quarter of the oil and gas. When Erlewine brought his lawsuit,
he could have fairly believed that he, and not Trio/Waco and its successors, owned at least
a 25% share of the oil and gas. Therefore, the majority opinion avoided the legal definition
of “land” by repeatedly invoking the term “property” to describe Erlewine’s interest.
The majority opinion also makes much of the fact that Stiles failed to pay
both tax tickets, and it uses that fact to differentiate this case from Orville Young, LLC v.
Bonacci, 246 W. Va. 26, 866 S.E.2d 91 (2021), where one duplicate tax ticket was paid,
and another was not. I do not think that fact is controlling because, as I detailed above, the
law is clear that the tax assessor never should have split Stiles’s undivided estate into two
separate tax tickets for the two decades after 1968. However, despite the tax assessor’s
grievous violation of the law, the majority opinion ignores the rule applied in Orville Young
that “[a] deed made pursuant to a tax sale under a void assessment is void.” Syl. pt. 4,
Blair v. Freeburn Coal Corp., 163 W. Va. 23, 253 S.E.2d 547 (1979). I understand that,
when Trio/Waco forked over $700 for its 1991 deed to “135A Huff Ridge OG ¼ Int.” it
believed it was buying a one-quarter share of the oil and gas royalties.4 But the fact remains
that Stiles’s separate oil-and-gas interest should never have been on the tax assessor’s
4
Of the many odd facts in this case, the oddest is this: Stiles was charged
$700 a year in taxes for a one-quarter share of the oil and gas interest, while Dunham was
charged $16.36 for an identical one-quarter share.
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books, and any tax sale under a void assessment is itself void. That is a legal fact and is
why I am convinced that Trio/Waco bought nothing in 1991.
Clearly, Legislative action is needed because the majority opinion has
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overextended West Virginia Code § 11A-3-63 (1994) by interpretation. That Code
section, which I call § 63, excuses any procedural “irregularity, error or mistake” in the
delivery of a tax deed, and then allows the original, taxpaying estate owner to bring an
action to void the tax deed in limited circumstances.
What the majority opinion appears to miss here is that this case has nothing
to do with the delivery of a tax deed; it instead involves a tax assessment that was improper
and void from the get-go. This wasn’t a procedural misstep; it was a violation of
substantive law. For that matter, the majority opinion does not venture to guess what
“procedure” means in § 63, it simply presumes that the issuance of illegal duplicate tax
tickets for decades is a ”step in the procedure leading up to and including delivery of the
tax deed.” Id. The majority opinion also misses that § 63 is designed to preserve “the due
5
West Virginia Code § 11A-3-63 provides:
No irregularity, error or mistake in respect to any step
in the procedure leading up to and including delivery of the tax
deed by the deputy commissioner shall invalidate the title
acquired by the purchaser unless such irregularity, error or
mistake is, by the provisions of section forty-nine of this article
or section two, three, four or six, article four of this chapter,
expressly made ground for instituting a suit to set aside the sale
or the deed.
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process rights of owners of real property,” W.Va. Code § 11A-3-1, and it might also be
designed to protect assessors and sheriffs from lawsuits by tax deed purchasers. But § 63
does not, and it cannot, limit the rights of the purchasers of conflicting tax deeds like
Erlewine and Trio/Waco from suing to clarify the quality of their deeds. The assessor sold
Trio/Waco something that was a legal fiction, but sold Erlewine something that had, as a
matter of law, the appearance of being complete, undivided title. The majority opinion
rewrites the 1991 deeds and chalks it up as nothing more than an irregularity, error, or
mistake in the delivery of the two tax deeds. While the 1991 deed to Trio/Waco put a cloud
on Erlewine’s 1991 deed, the majority opinion interprets § 63 to say that Erlewine has no
right to clear that cloud in a courtroom.6
Worse, let us take the majority opinion to its logical (but clearly wrong)
conclusion. If the majority opinion is correct, Erlewine should never have filed this
lawsuit. Instead, Erlewine should have put a cloud on Trio/Waco’s tax deed by claiming
his deed encompasses all of the oil and gas estate, and then commenced drilling on his 135
acres of land. Under the majority opinion’s interpretation of § 63, Trio/Waco and its
6
To bring my concerns full circle, let me return to the Orville Young v.
Bonacci case and this Court’s inconsistent interpretation of § 63. Recall that in Bonacci,
the majority opinion concluded that a lawsuit could be brought to interpret the meaning of
a tax deed for a simple, factual reason: one of the two duplicate tax tickets had been paid.
In the case at bar, the majority opinion says a case is precluded by § 63 because neither of
the two duplicate tax tickets was paid. The majority opinion fails to explain what language
in § 63 would permit the action in Bonacci but preclude the action in this case.
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successors would have been prohibited from bringing a lawsuit to challenge Erlewine’s
interpretation of his tax deed.
I simply cannot believe that this is what the Legislature intended.
This case is all about public policy. The focus of any case interpreting deeds
is on preserving the sanctity of titles and maintaining the stability of land transfers. The
presumption should be that county tax assessors follow the law and assess a property based
on its entire, undivided value. Courts should not permit assessors to violate the law, nor
should courts be required to sanction those violations of law, yet that is what the majority
opinion seems to suggest. I realize that it might not seem “fair” that an oil-and-gas
company spent $700 for a tax deed to oil and gas that might now be worthless. But the
policy question here is: who is the law going to protect? The sanctity of land titles and the
notion that tax assessors comply with the law? Or, speculators who buy tax deeds to
properties, sight unseen, gambling that the purchase might someday be worthwhile?
Someone who buys “land” at a tax sale should be allowed to assume the law has been
followed, and that the “land” encompasses the undivided estate of the prior owner who
failed to pay their taxes. By permitting assessors to “get away” with double, triple, or
quadruple assessments on land interests in violation of state law, the Court is encouraging
gambling by tax purchasers. If the majority opinion had been decided differently and had
applied the settled law that tax assessors are supposed to tax undivided interests in land
only once, then buyers of tax liens would be motivated to investigate whether a purchase
is void because it violates the law. Assessors would no longer be able to pawn off multiple
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assessments to the same property interest, generating litigation between buyers, because
there would be no more buyers of worthless tax liens. That said, it is for the Legislature to
establish policy in such matters.
In sum, I respectfully dissent. I believe the circuit court correctly interpreted
the 1991 tax deed as giving Erlewine the same interest as his predecessor, Stiles.
Erlewine’s 1991 tax deed conveyed to him a 100% interest in the land and all the minerals
except for an undivided one-quarter interest in the oil and gas. The majority opinion,
therefore, errs in holding otherwise, and I hope that the Legislature intervenes to clarify its
intent as to how duplicate, unpaid tax deeds should be handled, by courts and counties, in
the future.
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