
    MINES AND MINING — TAXATION.
    [Harrison (7th) Circuit Court,
    May Term, 1908.]
    Burrows, Laubie and Cook, JJ.
    F. E. Johnson v. J. S. Lacey, Aud., and A. W. Cole et al. Comrs.
    1. APPORTIONMENT OP VALUATION BETWEEN OWNER OP SURFACE AND OWNER OF Coal, when Coal Conveyed after Decennial Appraisement.
    Where coal is sold and conveyed after the regular decennial appraisement, it is the duty of the county board of equalization under Sec. 2792-a Rev. Stat., passed April 23, 1904 (97 O. L. 294), upon application by the owner of the surface to equitably apportion the said valuation between the owner of the surface and the owner of the coal according to the relative value of their respective interests.
    
      2. Decennial Valuation not Reduced upon Sale and Removal op Timber.
    The sale and removal of timber from land does not entitle the owner of the land to any reduction of the decennial appraisement under Sec. 2753 Rev. Stat.
    [Syllabus approved by the court.]
    Appeal from Harrison common pleas eonrt.
    Hollingsworth & Worley, for plaintiff:
    Cited and commented upon the following authorities: Jones v. Wood, 6 Cire. Dec. 538 (9 R. 560) ; Cincinnati College v. Yeatman, 30 Ohio St. 276; Sheldon v. Coates, 10 Ohio 278; Kellogg v. McLaughlin, 8 Ohio 114; Magruder v. Esmay, 35 Ohio St. 221; Ward v. Barrows, 2 Ohio St. 241, 246: State v. Baine, 47 Ohio St. 447 [25 N. E. Rep. 54] ; Black v. Hagerty, 9 Cire. Dec. 93 (16 R. 255); Gager v. Prout, 48 Ohio St. 89 [26 N. E. Rep. 1013]; Hagerty v. Huddleson, 60 Ohio St. 149 [53 N. E. Rep. 960] ; Mitchell v. Franklin Co. (Treas.) 25 Ohio St. 143.
    E. S. McNamee and Perry & Rowland, for defendants.
   COOK, J.

This action is before ns on appeal. Plaintiff, T. E. Johnson, is the owner of a large farm in this county and was such owner at the time of the decennial appraisement in 1900. The farm consists of tillable land, woodland, and buildings; and is underlaid with a valuable vein of coal. The tillable land, woodland and buildings were appraised separately; nothing being said by the appraiser in his return about the coal. In the trial before the common pleas court, the evidence in which case is by consent used as the evidence before us, the decennial appraiser testified that the coal was not taken into consideration in the appraisement.

Johnson paid for the farm $14,000, but a short time before the ap-praisement, and it was appraised at $8,800.

January 80, 1903, Johnson sold the coal underlying the farm for the sum of $4,320; the consideration mentioned in the deed being $1. The auditor placed the coal upon the tax duplicate at $4,320, against the purchaser, claiming that the company purchasing it had failed to list it for taxation.

Sometime after the sale of the coal Johnson cut the timber off the land and sold it for about $4,000. After the sale of the coal and timber, Johnson made application to the auditor, under Sec. 1025 Rev. Stat., to-deduct from the appraisement of his land the amount which had been placed upon the tax duplicate against the purchaser of the coal to wit: $4,320. This, the auditor refused to do. In refusing to make the deduction under this section, we think the auditor acted right. No proof was made by Johnson as to the actual value of the coal as compared with the valuation of the whole farm as required by the section. Dye v. State, 73 Ohio St. 231 [76 N. E. Rep. 829].

Furthermore, we are fully persuaded that Sec. 1025 Rev. Stat. does not apply to eases of this character, but only to cases where there has been a separation by sale, or otherwise, of the surface of the land. That would seem to be so from the plain reading of the statute: “A part only of any tract or lot. ’ ’ This would hardly include the severance of the coal or other mineral from the surface.

In Dye v. State, supra, page 237, it is said:

“It may be seriously doubted whether this statute authorized the severance of the surface of the land from the coal or other mineral embedded beneath it, so as to transfer the latter to a purchaser, leaving the other parts of the land to stand in the name of the vendor. ’ ’

Johnson then, made application to the county board of equalization at its annual meeting to apportion the valuation of his farm as made at the preceding decennial appraisement between him and the purchaser of the coal. This, the county board of equalization refused to do. Johnson also made application to the auditor to deduct the value of the timber,' which he had cut oft the farm and sold, or an equitable part thereof, from the value as fixed at the decennial appraisement. This, the auditor refused to do. He then brought a suit in the court of common pleas against the auditor and the commissioners as the county board of equalization to enjoin the auditor from continuing upon the tax duplicate the full amount of the decennial appraisement of his farm, and to require the auditor to deduct from the same $4,320, the value of the coal sold; and also the sum of $4,000, the value of the timber which he cut off the farm.

The court of common pleas refused to deduct the value of the coal ■sold, or any part of the same, but allowed the claim for the timber cut off and sold, set up in the second cause of action, and enjoined the auditor from continuing on the tax duplicate the full amount of the decennial appraisement and ordered him to deduct the value of the timber cut from the farm.

As to the claim made in the first cause of action we see no reason why an injunction should not be allowed prohibiting the auditor from •continuing on the tax duplicate the equitable value of the coal sold according to the relative value of the coal with the surface. This is the plain provision of Sec. 2792-a Rev. Stat., passed April 23, 1904 (97 O. L. 294), and we do not understand why the common pleas court decided otherwise.

As to the claim set up in the second cause of action it is clearly untenable. Plaintiff relies on Sec. 2753 Rev. Stat. This section has no-application to cases where the owner voluntarily cuts off timber and sells it. That section applies to eases of “destruction by fire, flood, cyclone, storm or otherwise of any structure of any kind, or of orchards, timber, •ornamental trees, or groves over $100.”

Webster defines destruction as: “The act of destroying, tearing down, subversion, demolition, ruin.” Plaintiff’s claim in his first cause of action will be allowed, and in his second cause of action will be refused. It does not, however, follow that Johnson should be allowed the full amount of $4,320, as a reduction of the appraised value of his farm for taxation at the decennial appraisement but only an equitable division; and the county board of equalization should .make such equitable division at its next annual meeting. Until such division is made by the •county board of equalization, the auditor is enjoined from the continuing •on the tax duplicate of any greater sum than the amount of the decennial appraisement less the sum of $4,320.

The second cause of action of plaintiff’s petition will be dismissed. The costs will be equally divided between plaintiff and defendants.

Burrows and Laubie, JJ„ concur,  