The plaintiff is lessee of certain tide-lands situated in the city of Los Angeles and belonging to the state. The city assessed this leasehold estate and levied a tax thereon, which plaintiff paid under protest and in due time brought this action to recover the same. Judgment went for plaintiff, from which the defendant appealed.
On a hearing heretofore had of the case, it was considered in connection with L. A. No. 4504, entitled San Pedro, Los *Page 20 Angeles Salt Lake R. R. Co. v. City of Los Angeles (Cal.),179 P. 390, which, as to the power of the municipality to assess a leasehold estate in such property for the purpose of levying a tax thereon, involved the same questions. The latter case, however, had been before the court on a former appeal prosecuted by the plaintiff from a judgment in favor of the city upon sustaining its demurrer to the complaint, with the result that the judgment was reversed. (See San Pedro etc. R.R. Co. v. City of. Los Angeles, 167 Cal. 425, [52 L.R.A. (N.S.) 991, 139 P. 1071].) Upon going down of the remittitur the city was permitted to file an answer, and upon trial a judgment was entered in favor of the plaintiff, from which the city appealed. The hearing of the two cases thus considered together resulted in an affirmance of L. A. No. 4504, based solely upon the ground that the former decision thereof, as reported in167 Cal. 425, [52 L.R.A. (N.S.) 991, 139 P. 1071], constituted the law of the case. As to the case now under consideration, however, the court took a different view of the question involved and reversed the judgment rendered against the city. Thereafter the petition of the city of Los Angeles, as appellant in L. A. No. 4504, for a rehearing was denied, thus finally disposing of the subject of litigation involved therein. A like petition for a rehearing was presented by the plaintiff in L. A. No. 4600, being the case now under consideration, which was granted upon the sole ground that the court had failed to consider the question as to the assessment made of certain alleged improvements upon the leasehold. By an order made granting said rehearing, the court restricted further argument to the question alone of the validity of the assessment of the alleged improvements. (See Minutes, Sept. 11, 1918, 56 Cal. Dec., No. 2969.)
[1] The question to which the court on the former consideration of the case addressed itself and to which the chief argument of counsel was directed was whether the laws of this state authorize the taxation of leasehold interests in the tide-lands of the state. Upon this point, holding that municipalities have such power, we adopt the opinion of Mr. Justice Sloss, filed at the former hearing of the appeal, which is as follows:
"That a leasehold interest is property is a proposition not open to dispute. 'The thing of which there may be ownership is called property.' (Civ. Code, sec. 654) Interests in real property are called 'estates.' (Civ. Code, sec. 701) They *Page 21 are classified by section 761 of the same code as (1) estates of inheritance, (2) estates for life, (3) estates for years, (4) estates at will. The interest of the plaintiff under the lease from the state is an estate for years. There may be ownership of such estate. It is, therefore, property.
"Is it property for the purposes of taxation? Our constitution declares (art. XIII, sec. 1): 'All property in the state except as otherwise in this constitution provided, not exempt under the laws of the United States, shall be taxed in proportion to its value, to be ascertained as provided by law. . . . The section exempts property belonging to the state, and certain other kinds of property, not including interests like the one here involved. [2] With respect to all property not so exempted, the provision of the constitution that it shall be taxed in proportion to its value, to be ascertained as provided by law, is direct and mandatory. (Const., art. I, sec. 22.) The provision for the taxation of all property not exempt is repeated in section 3607 of the Political Code.
[3] "The constitutional provision is not self-executing. It imposes upon the legislature the duty of providing a mode whereby to ascertain the value of the property to be taxed. (McHenry v. Downer, 116 Cal. 20, 24, [45 L.R.A. 737, 47 P. 779.] See De Witt v. Hays, 2 Cal. 463, 468, [56 Am. Dec. 352].) [4] If, then, the legislature had not provided any mode for the assessment of leasehold estates, it might well be said, as was said in the former opinion, that such an estate is not 'property for the purposes of taxation' under our fiscal laws. But there does not appear to be any such deficiency in our revenue laws. Section 3617 of the Political Code declares that the term 'property' includes 'all matters and things, real, personal, and mixed, capable of private ownership,' and that the term 'real estate' includes 'the possession of, claim to, ownership of, or right to the possession of land.' A leasehold estate carries a right to the possession of the land lease. (Civ. Code, sec. 819) It is, therefore, real property within the above definition. Other sections of the Political Code provide for the listing of real property, the description and valuation thereof, and contain a complete scheme for the assessment of the property, and the levy and collection of the taxes. This scheme is as readily adaptable to an estate for years as to a freehold estate. *Page 22
[5] "It is true that the code makes no specific provision for separate assessments of leasehold and reversion to the lessee and the owner of the fee, respectively. The usual procedure in this state, as elsewhere, has been to assess the entire value of the land to the owner of the reversion. Such assessment covers the value of the leasehold as well as of the reversionary interest, the sum of the two being comprised in the value of a complete ownership of the land. (Graciosa OilCo. v. Santa Barbara, 155 Cal. 140, [20 L.R.A. (N.S.) 211,99 P. 483].) The state thus receives the tax upon every interest in the land, and the requirement of the constitution and of section 3607 of the Political Code is satisfied. Where, however, the state owns the reversion, its reversionary interest, like all property owned by it, is exempt from taxation. In such a case it cannot be said that the private property right of the lessee is taxed through the medium of the taxation of the interest of the owner. Still less can it properly be said that because the interest of the state is not taxable, the private owner of a leasehold interest should be exempt from paying taxes upon the property that is owned by him.
"An illuminating discussion of the question is found inTrimble v. Seattle, 231 U.S. 683, [58 L.Ed. 435, 34 Sup. Ct. Rep. 218], a case which was not called to the attention of the department on the former appeal. The supreme court of Washington had upheld an assessment on certain leaseholds of tide-lands owned by the state. The assessment of the leaseholds was authorized by statutes enacted after the execution of the leases by the state. A writ of error was granted to review the judgment of the state court. The plaintiff in error contended that the leases imported an obligation that the lessor should pay all taxes and assessments, and that the federal constitution prohibited the impairment of this contract by a subsequent law. The supreme court of the United States held that no such obligation was included in the lease, saying:
" 'In ordinary cases the whole property is taxed and which party shall bear the burden is not a matter of public concern. But when the state makes the lease, the supposed obligation would be an obligation not to tax — a restriction of public import not lightly to be imposed (citing cases). It is urged that to deny the state's obligation discriminates unconstitutionally against this class of lessees, since all others are free from the burden. But that is not true. Whether landlord or tenant *Page 23 shall pay a tax is a matter of private arrangement, and the practice one way or the other has no bearing on the matter. The argument from inequality really works the other way. If these leaseholds are not taxable, they are a favored class of property; for ordinarily leaseholds are taxed even if they are lumped and included in the value of the fee. When an interest in land, whether freehold or for years, is severed from the public domain and put into private hands, the natural implication is that it goes there with the ordinary incidents of private property and therefore is subject to being taxed.'
"In Graciosa Oil Co. v. Santa Barbara, 155 Cal. 140, [20 L.R.A. (N.S.) 211, 99 P. 483], a separate assessment of a leasehold interest to the lessee was upheld. The case was discussed at some length in the opinion on the former appeal in the first of the cases before us, and it was pointed out that the lease in the Graciosa case carried with it a right to take a part of the substance of the land itself. There is, no doubt, a distinction between the grant of such right and an 'ordinary lease for usufructuary purposes,' and it may be conceded that the decision in the Graciosa case is not a controlling authority in favor of the appellant's contention here. On the other hand, that decision does not, as suggested by the former opinion dealing with the rights of the parties to the present appeals, support the respondent's position that its leasehold interest is not taxable. What was said in Graciosa Oil Co. v.Santa Barbara regarding the mode of taxing property leased by one private individual to another had no reference to a case like this, where the lessor is a governmental agency whose property is exempt from taxation. The opinion fully recognizes that, in the usual case, the assessment to the owner of the fee includes the value of both the reversion and the leasehold interest, and that, under such conditions, both interests are assessed, and the mandate of the constitution is followed.
[6] "The principle that a possessory right in public land is private property, and that it may be assessed for purposes of taxation to the person in possession, although in point of law he may have no right as against the state or government owning the land, has long been settled in this state. (People v.Shearer, 30 Cal. 646, 655; People v. Frisbie, 31 Cal. 146;People v. Cohen, 31 Cal. 210.) The first two of these cases are referred to in the decision of the first appeal in San Pedroetc. R. Co. v. Los Angeles, 167 Cal. 425, [52 L.R.A. (N.S.) 991, *Page 24 139 P. 1071], and they are sought to be distinguished upon the ground that the possession of the claimant was one designed to ripen into an ownership of the fee, under the land laws of the United States. But a careful examination will show that this ground of distinction is not tenable. In the Shearer case (30 Cal. 646), the court pointed out that the occupant had not made the payment which was necessary to vest in him any legal or equitable right as against the government. He was, however, in possession, and his right as possessor was held to be property subject to taxation. The court said: 'The possession itself of the public lands and the improvements thereon, whether by naked trespassers or those who claim in addition a right of pre-emption, as to everybody except the United States, have always in California, and in most, if not all, of the new states, been regarded as valuable property interests. The transfers of such possession and improvements have always been held to constitute a valuable consideration for a promise. The possessors often derive and enjoy large revenues from them. Contracts for such possession, and rights growing out of them, are constantly recognized, protected, and enforced by the courts, and, in this state, a very large share of the litigation in the courts maintained by means arising from taxation grows out of this very class of rights. . . . Such possession of the public lands, and the improvements put upon them, are, therefore, recognized and protected as a valuable species of property in the possessor.' It was further said that these possessions 'exist wholly independent of pre-emption laws, without any pre-emption right or intention to claim such right, and always anterior to the existence of those rights. . . . And this property is property in the citizen or inhabitant having possession, and not in the United States. This property, so recognized and protected, in our judgment is clearly not exempt from taxation.' (Page 659.) And, accordingly, it was held that such possessory rights should be assessed and that 'the value of the possessory right should be put down and not the value of the land itself,' as the basis of the assessment for taxation. A mandate was issued to the assessor to compel him to do so.
"This conclusion was reached regardless of whether the person in possession was intending to claim as pre-emptioner or homesteader, or whether his possession could ever have ripened into a fee. Nor was the decision in People v. Frisbie, 31 Cal. 146, *Page 25 put upon any such theory. Each of these cases was decided upon the ground that possession of land, with or without right or expectation of right or title from the government, was a species of property in the possessor, and as such subject to taxation. The inability to tax the fee vested in the public is, therefore, no obstacle to the taxation of the possessory right, whatever its nature may be. If a bare possession by the sufferance of the real owner is subject to taxation where the estate of the real owner is exempt because the state or the United States is such real owner, it is impossible to uphold the proposition that the estate of one holding a valid estate for years under lease from the state is not subject to taxation. That estate is not included in any assessment to the landlord or owner of the estate in remainder.
"We do not agree with the suggestion made in the closing paragraph of the decision in 167 Cal. 425, [52 L.R.A. (N.S.) 991, 139 P. 1071], that a holding that the plaintiff's leasehold interest is subject to assessment and taxation would make void every assessment against the owner of land subject to a lease without an assessment against the lessee of the value of his leasehold. As has already been said, in the ordinary case the value of the leasehold is included in the value assessed to the owner of the fee. What the constitution and the law require is that all property shall be taxed in proportion to its value. And this is done when the whole value of the land is assessed to the owner of the fee. Section 3628 of the Political Code provides that no mistake in the name of the owner of real property shall render the assessment thereof invalid. The validity of the assessment would not, therefore, be affected by the fact that the values of the several estates in the land are united in a single assessment in the name of the owner of one of such interests."
Upon the views thus expressed, it follows that the decision in 167 Cal. 425, [52 L.R.A. (N.S.) 991, 139 P. 1071], must be deemed overruled.
[7] The improvements upon the leasehold were assessed at the sum of $92,850, upon which a tax of $1,151.35 was levied. As described in the assessment-book, the property assessed was: "Improvement on a tract of land leased from Long Beach city to S. P., L. A. S. L. R. R. Co., dated October 2, 1905, for 46 years, for land and water rights in 61.90 acres, being that part of fill lying south of Terminal Island and north of *Page 26 strip reserved by city, in section 18, T. 5 S., R. 13 W." The court found, as alleged in the answer of defendant, that after the execution of said lease, but prior to the assessment, plaintiff constructed a breakwater of rocks upon said premises and along the southerly line thereof, and filled or caused to be filled with earth and sand the lands lying between the mainland and said breakwater, by dredging in such manner that all of the lands described in said lease were at the time of such assessment no longer submerged, but dry lands lying above the line of high water. It thus appears that the improvements consisted of a stone retaining-wall or breakwater built of rock and the filling in of the submerged land by depositing thereon earth and sand to a depth or thickness sufficient to raise the level of the surface above the line of high tide. In its supplemental brief, counsel for the city, which is the appellant here, concede that respondent is correct in its contention that the fill so made upon the land is not an improvement within the meaning of section 3617 of the Political Code, which defines improvements as "all buildings, structures, fixtures, fences and improvements erected upon or affixed to the land, except telephone and telegraph lines." We are in full accord with this agreed view of the subject of the parties. The fill was not an "improvement erected upon or affixed to the land," but, when made, was a part of the realty — indeed, it was the land itself, the surface of which was changed by bringing it to a higher grade. Surely, it could not be said the tenant would be entitled to remove this fill at the expiration of the lease by virtue of a provision contained therein to the effect that it might remove all improvements made. In the case of Kern Valley etc. Co. v. County of Kern, 137 Cal. 511, [70 P. 476], the court had under consideration the question as to whether the embankments and levees constructed along the margin of a canal constituted an improvement within the meaning of section 3617 of the Political Code, or was a part of the canal. The court said: "We do not think this definition (section 3617) can be said to include embankments or banks forming the margin of the canal, and it was therefore proper to include the levees as part of the canal." So here, we think the fill was not an improvement within the meaning of the section, but when made constituted the realty itself, the fee of which was in the state, and hence not subject to assessment. *Page 27
While appellant concedes the fill is not subject to assessment, it insists that as an abstract proposition of law the breakwater constructed of rock is an improvement within the meaning of section 3617, and as such assessable for taxation. It is unnecessary to determine such question. The assessment was not merely for improvements upon the leasehold; hence we can indulge in no presumption that the assessor in making the assessment included therein only such property as was legally assessable. (Western Union Tel. Co. v. Los Angeles, 160 Cal. 124, [116 P. 564].) [8] It conclusively appears that the breakwater was not separately assessed, but included in the assessment with the fill, with which unlawful assessment it is indivisible. Therefore, conceding the breakwater to be assessable, the assessment thereof, as shown by the record, is so blended with the assessment of the fill that it renders the entire assessment void. (State v. Central Pacific R. R. Co.,127 U.S. 1, [32 L.Ed. 150, 8 Sup. Ct. Rep. 1073], and County ofSanta Clara v. Southern Pacific Co., 118 U.S. 394, [30 L.Ed. 118, 6 Sup. Ct. Rep. 1132].) [9] "If the different parts, lawful and unlawful, are blended together in one indivisible assessment, it makes the entire assessment illegal." (State v.Central Pacific R. R. Co., 127 U.S. 1, [32 L.Ed.150, 8 Sup. Ct. Rep. 1073].) Indeed, appellant recognizes this fact and concedes "that the judgment should be sustained in so far as the assessment upon improvements is concerned."
The judgment, in so far as it declares the assessment upon the improvements void, is affirmed, and in so far as it in effect adjudges the assessment of the leasehold estate void, is reversed, and the trial court is directed to modify the judgment in accordance herewith.
Sloss, J., Wilbur, J., Richards, J., pro tem., and Angellotti, C. J., concurred.