(dissenting)—I do not agree with the conclusion reached by the majority opinion. Our statutes and administrative rulings when applied to the material facts disclosed by the record justify a holding that respondent acquired title to the reserved mineral rights and their incidents.
In 1912, Frank C. Allen became the owner of the real estate in question by patent from the United States. Sometime thereafter, he moved to the state of Florida and remained there until his death in 1919. Allen conveyed the *34land to the lone Lumber & Pole Co. The deed contained the following reservations:
“The parties of the first part reserve unto themselves, their heirs and assigns forever all minerals upon or in said lands together with the right to enter thereupon for the purpose of exploring for the same and for the purpose of mining and removing the same.”
In 1923, the corporation conveyed the land to respondents by a bargain and sale deed without any reservations or exceptions. Respondent McCoy testified at the trial that he had paid the taxes upon the real estate for the years 1923 to 1932. During this period of time, the land was vacant and unoccupied. The court found that such taxes were paid “each year before the same became due.” This finding is not challenged and should be accepted by this court. At the time of the making of the conveyance, the land was in its natural state, unimproved, had a growth of timber thereon, and its mineral status was unknown. The property was valued and assessed for taxation purposes as a unit and without regard to its separation into what I shall refer to, for convenience, as the “mineral estate” and the “surface estate.” Allen made no request to the taxing, authority that there be a segregation of the two estates for taxation purposes.
Our statute, RCW 84.04.090, defines “real property” to be the land itself and all substances in and under the same. The law recognizes the right of an owner of real property to separate it into different estates or interests, so that one may own the minerals with easement rights to carry on mining operations and another may own the remainder, which is usually referred to as the surface and its incidents. When there is such a separation of estates, there may be a segregation thereof and each estate valued and assessed for taxes, or the whole of the real estate may be valued and assessed as a unit. No statute exists requiring taxing authority to make such a segregation.
On September 27, 1928, the attorney general rendered' an opinion to the effect that a reserved mineral estate was subject to assessment and taxation as real estate, and that *35a county assessor had the legal right to so assess such property. (Opinions, Attorney General, 1927-1928, p. 943.)
On August 5, 1930, the tax commission informed a county assessor that he had the legal right to assess a mineral estate as real estate, and that such had been the action taken in many counties for more than twenty years past pursuant to instructions from the tax commission. Under date of April 21, 1942, the tax commission, by property tax ^bulletin No. 124, placed its construction upon our statute to the effect that, if an owner of a mineral reservation wishes to protect his interests, he must, in the absence of independent action by the assessor, apply to that official for segregation or notify him that he wishes the reservation specially assessed; that it then becomes the duty of the assessor to so segregate and assess the mineral reservation; but it remains the continuing responsibility of the owner from year to year to see that the reservation is so segregated and assessed.
This court has taken the attitude that opinions of the attorney general and of administrative agencies are not binding upon it, but are entitled to due and proper consideration with reference to questions arising in the performance of their official duties. This is especially true when administrative viewpoint and action has been of long standing and has not been challenged. I think we should now decide that, when Allen reserved the mineral estate, it became his duty to seek its segregation and separate assessment and to pay the taxes so assessed if he desired to escape the effect of RCW 7.28.080; also, that if there be no requested segregation and the assessor makes a unit assessment, it is not limited to the surface estate but covers all taxable estates.
Laws of 1893, chapter 11, p. 20, is an act “to quiet possessions and confirm titles to land.” Direction is given that the act shall be liberally construed for the purposes set forth therein. Sections 3 and 4 of the act are codified in RCW 7.28.070 and 7.28.080. The latter section of the act, if applicable to the reserved mineral estate, seems to me to solve the problem presented. It provides as follows:
*36“Every person having color of title made in good faith to vacant and unoccupied land, who shall pay all taxes legally assessed thereon for seven successive years, shall be deemed and adjudged to be the legal owner of such vacant and unoccupied land to the extent and according to the purport of his paper title. All persons holding under such taxpayer, by purchase, devise, or descent, before the seven years have expired, and who continue to pay the taxes as aforesaid, so as to complete the payment of the taxes for the term aforesaid, shall be entitled to the benefit of this section: Provided, That if any person having a better paper title to such vacant and unoccupied land, during such term of seven years, pays the taxes as assessed on the land for any one or more years of such term, then and in that case such taxpayer, his heirs or assigns, shall not be entitled to the benefit of this section.”
It is my view that, when a mineral estate is reserved from a grant of real estate, it may become “vacant and unoccupied land” within the meaning of RCW 7.28.080; that color of title thereto may be acquired in good faith; and if, in the absence of requested segregation, taxing authority assesses taxes upon all of the estates as a unit in the name of and to one holding a deed thereto without any reservations or exceptions and such person pays the taxes for seven successive years, he becomes the owner of the mineral estate.
It seems to me that when Laws of 1893, chapter 11, was enacted, the legislature sought to provide a method of stabilizing titles to real estate and also to aid in the collection and payment of taxes. The owner of real estate was advised that he would lose title thereto if he did not pay the taxes levied against it. One who in good faith acquired color of title to the land and paid such taxes for seven successive years, was advised that he would be deemed and adjudged to be the legal owner thereof to the extent and according to the purport of his paper title. A public policy aspect is voiced throughout the whole enactment. Giving the act a liberal construction, I find no difficulty in concluding that the deed from the lone Lumber & Pole Co. to McCoy “purported” to convey to him the entire tract of land described therein, and that such “paper title” constituted “color of *37title” contemplated by the act. We should give the words “color of title” and “purport of his paper title” the meaning and application necessary and proper to carry out the purpose set forth in the act, rather than to apply definitions of the words found in cases not involving the somewhat unusual situation here presented.
It seems likewise clear that, although a reserved mineral estate is such an unknown and intangible estate as to be incapable of physical occupancy or possession until mining operations take place, nevertheless, there may be a constructive occupancy thereof by the payment of taxes thereon so as to prevent the operation of RCW 7.28.080. But when a grantor reserves a mineral estate, abandons it, never makes any search for minerals or does any act indicating any intention other than to keep the title to the land clouded, has no segregation made for taxing purposes, and neither pays nor offers to share in the payment of the taxes, it should be held that the mineral estate was vacant and unoccupied within the meaning of the act. This disposal of the case makes it unnecessary to determine the other questions raised with reference to the application of RCW 7.28.070.
The judgment should be affirmed.