APPEAL from the County Court of Franklin County; the Hon. ROY
O. GULLEY, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 16, 1956.
The appellant, W.W. Adams, is the grantee of a tax deed to the minerals underlying certain land in Franklin County. The appellees, former owners of this severed mineral estate, filed an application in the county court of Franklin County, seeking a reconveyance of said property pursuant to sections 255, 256, and 257 of the Revenue Act of 1939, as amended, herein referred to as the Reconveyance Act. (Ill. Rev. Stat. 1951, chap. 120, pars. 736-738.) The county court ordered the reconveyance, and a freehold being involved, the appellant appeals directly to this court.
In their application for reconveyance, filed October 21, 1951, the twenty-four appellees alleged, in substance, as follows: (1) that they were the owners of the minerals, including oil and gas, underlying certain described land in Franklin County; (2) that the appellant was the grantee of a tax deed dated October 15, 1948, duly recorded, conveying said minerals; (3) that neither the appellant, nor anyone claiming under said tax deed, is in possession of said property; (4) that neither the appellant, nor anyone claiming under said tax deed, had instituted proceedings in good faith to take possession within one year after the date of the deed; (5) that on August 16, 1951, the appellees, through their agent, tendered to appellant $1486.52, based on an estimate prepared by the county clerk of amounts expended by the appellant on the tax sale, subsequent taxes paid, interest at 7 per cent per annum, statutory fees and costs, and at the same time demanded reconveyance; (6) that the appellant refused said tender and refused to reconvey; and (7) that the affidavit of tender was filed with the county clerk as provided by statute.
The appellees asked that the court order the amount of the tender be deposited with the county treasurer for the benefit of the appellant, direct the sheriff or master in chancery to reconvey said premises in the name of the appellant, and fine him in accordance with the provisions of the statute.
The appellant filed a motion to dismiss the application, which alleged that the act in question could not and was not intended to apply to a tax title to minerals, including coal, oil and gas, underlying land; that if the statute should be construed as applicable to minerals it was unconstitutional and in violation of the due process clause of the fourteenth amendment of the Federal constitution and section 2 of article II of the Illinois constitution; and that the act so construed would also be contrary to section 22 of article IV of the Illinois constitution.
The court overruled the motion to dismiss. The appellant then filed an answer, admitting that he was grantee of the tax deed, that the tender had been made, and that he refused the tender. But he denied the other averments of the application. As a part of his answer, the appellant also filed by way of affirmative defenses the points raised in his motion to dismiss and further alleged that the act, if construed as applicable to underground minerals, was so vague, indefinite and uncertain as to render it unconstitutional and void.
Said statutory provisions, originally enacted in 1909 and now incorporated into the Revenue Act of 1939 as sections 255, 256, and 257, are as follows:
"§ 255. Whenever the grantee of a tax deed to real estate, or any one claiming thereunder, shall not be in possession or occupation of said premises so claimed and shall not take or institute proceedings in good faith to take possession within one year after the date of the first tax deed under his alleged tax title, or whenever the grantee of a tax deed to real estate or any one claiming thereunder shall suffer the same to be forfeited to the State or again sold for taxes or special assessments before he has completed the payment of all taxes and special assessments legally assessed thereon for seven consecutive years, then it shall be lawful for the owner of said real estate or his agent or attorney to pay or tender said tax title holder the amount of moneys paid out and expended by said tax title holder upon said sale with seven per cent (7%) interest per annum thereon, together with subsequent taxes and special assessments paid and the statutory fees and costs incurred, and that upon such payment or tender the said tax title holder shall reconvey the premises aforesaid to the owner thereof. The amount of such tender may be based upon an estimate prepared by the county clerk. * * *
"§ 256. Any tax title holder failing or refusing to reconvey said premises to the owner thereof on demand after payment or tender of the amounts due, as provided for in section 255 of this Act, shall be fined a sum not less than fifty dollars ($50.00) and not more than two hundred dollars ($200.00) for each offense. One-half of said fine shall go to said property owner and one-half to the county.
"§ 257. Upon affidavit or proof of tender being made, as provided by section 255 of this Act, the county court, in the same proceeding wherein the sale upon which said deed issued, may order, upon the service of such notice as the court shall direct, the amount of said tender to be deposited with the county treasurer and that the sheriff or any master in chancery in said county shall, in the name of the holder of such title, reconvey the premises to the owner thereof.
"Whenever the tax purchaser makes application to withdraw moneys deposited with the county treasurer he shall deliver to the county treasurer a reconveyance of said tax title to the owner who made said deposit."
Evidence presented to the trial court disclosed the following: The property in question is the mineral estate underlying about 700 acres of land in Franklin County. It is described in the tax deed to the appellant by thirteen parcels containing from 37 to 100 acres each, and the plat introduced shows that the parcels adjoin one another in such a way as to produce a large, highly irregular-shaped piece of property. Prior to the time the appellant obtained his tax deed, appellee Pickens was the owner of the solid minerals under the land, and the other appellees were the owners as tenants in common of the oil and gas. The appellees owned the minerals only, and their property was assessed and taxed separately from the surface estate. The tax deed in question conveys only the underlying minerals to the appellant. As of the time of the hearing, the appellant, a resident of Denver, Colorado, had brought no legal or equitable action of any kind to take possession of the property, nor had he or anyone else ever endeavored to reduce the minerals to possession by drilling for oil and gas or digging for coal or other minerals. The tender was made by the appellees and refused by the appellant, as alleged, and the amount of the tender is not questioned as insufficient.
The appellant further introduced the testimony of a land man for various oil companies who testified that in the 48 counties of the State where oil and gas are produced the average is two dry holes for every producer; that in "wildcat" territory, the average is one producer to thirty dry holes; that the acreage in question is "wildcat;" and that the cost of drilling a well in the area is about $12,000. Subject to objection by appellees as to relevancy, it was stipulated that to justify a new coal mine in Franklin County in 1948 and later years at least 2000 acres in a compact, solid block would be needed and that the cost involved in sinking a shaft and equipping a new mine would be more than $500,000.
The appellant relies in substance upon three propositions for reversal, as follows:
(1) Because of the physical and economic impossibility or impracticability of taking actual possession of a mineral estate and because an action for possession thereof (ejectment) allegedly will not lie, the Reconveyance Act does not apply to mineral estates held under tax deed, the holder of said tax deed being in constructive possession thereof.
(2) If construed as applying to mineral estates, the Reconveyance Act is void because its provisions are ...