                               No. 84-265
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1984




MATHEW BROWN,
                Plaintiff and Appellant,


FERN HART, Missoula County Clerk
and Recorder, County Treasurer;
ROBERT PALMER and BARBARA EVANS,
Missoula County Commissioners; et al.
                Defendants and Respondents.




APPEAL FROM:    District Court of the Fourth Judicial District,
                In and For the County of Plissoula,
                The Honorable Joseph B. Gary, Judge presiding.

COTJPJSEL OF RECORD :

        For Appellant:
                Tipp, Hoven, Skjelset   &   Frizzell, Missoula, Montana

        For Respondent:
                Robert L. Deschamps, 111, County Attorney, J!lissoula,
                Montana
                Ililodragovich, Dale & Dye, Missoula, Montana



                                   Submitted on briefs: Sept. 20, 1984
                                     Decided: December 6, 1384




                                  Clerk
Mr. Chief Justice Frank T. Haswell delivered the Opinion of
the Court.
         This is an appeal by plaintiff from the Missoula County
District Court's denial of his claim for rescission of a tax
deed issued by the County to defendant Bruce Rlotkamp.            The
sole question on appeal is whether Montana's tax collection
laws governing real estate apply to improvements located on
tax-exempt lands.
          In 1976, Mathew Brown purchased a log cabin located on
Forest Service land.        Ee did not report the change of owner-

ship to the Department of Revenue, and tax bills continued to
be     sent to Brown's     predecessor in interest, Don Reardon.
erown apparently paid the 1977 taxes and the first install-
ment of the 1978 taxes.          He made no further tax payments.
Notices of the delinquencies were mailed to Reardon, as owner
of record, hut returned to the County as undeliverable.           The
County eventually took a         tax    sale certificate and   later
conveyed the cabin to Blotkamp by tax deed.          In 1983, a week
after the Countv had issued the tax deed, Brown tendered
payment of all past due taxes.          The County refused to accept
the payment.         Brown then brought suit seeking rescission of
the tax deed.         The District Court found for the defendants.
lile   affirm.
         Appellant does not challenge the sufficiency of the
process employed by the County in taking or conveying real.
property.        He contends, instead, that a separately owned
improvement is personal property and, so, not subject to the
real property recording requirements and not subject to tax
sale     as   real   estate.    Brown   argues   that, although   the
cabin--as a building situated upon land--may come within the
section 15-1-101(1)(e), MCA, definition of "improvements" for
purposes        of     r e a l property        assessment,           t h e ca.bin i s n o t an.

improvement a f f i x e d t o l a n d f o r p u r p o s e s of t h e r e p o r t i n g a c t

and n o t       "rea.1 e s t a t e 1 ' f o r p u r p o s e s o f     t h e t a x s a l e provi-

sions.         The c o n t e n t i o n s a r i s e from a p p e l l a n t ' s misapprehen-

s i o n o r m i s a p p l i c a t i o n of t h e laws of p r o p e r t y a.nd t a x a t i o n .

The c a b i n i s r e a l p r o p e r t y and an i n t e r e s t i n t h e c a b i n i s an

e s t a t e i n r e a l p r o p e r t y s u b j e c t t o t h e T i t l e 1 5 , C h a p t e r 17

t a x s a l e provisions.              S e c t i o n s 15-17-101        t h r o u g h 15-1.7-903,

MCA   .

                                                   I

          The R e a l t y T r a n s f e r Act i s i n c l u d e d w i t h i n t h e T i t l e 1 5

s t a t u t o r y scheme g o v e r n i n g t a x a t i o n o f p r o p e r t y .         See s e c -

t i o n s 15-7-301         t h r o u g h -311,     MCA.        Where n o t s u p e r s e d e d by

the Act's          definitions,          the     s e c t i o n 15-1-101,        MCA,     taxation

definitions          apply.         The t a x a t i o n d e f i n i t i o n s a r e ,    i n turn,

supplemented by t h e T i t l e 70 p r o p e r t y d e f i n i t i o n s .                 Section

1-2-107,        MCA.       The T r a n s f e r Act r e q u i r e s t h a t " [ a l l 1 t r a n s -

f e r s of r e a l property           ...        s h a l l b e r e p o r t e d t o t h e depa.rt-

ment      of    revenue."            Section        15-7-304 (1), MCA.                   (Emphasis

supplied.)           N e i t h e r t h e Act n o r t h e t a x a t i o n s t a t u t e s s p e c i f -

ically         define      "real      property."            [The T r a n s f e r   Act     defines

"rea.1 e s t a t e "     t o include         improvements a f f i x e d t o l a n d ,            but

the t e r m s     " r e a l p r o p e r t y " and " r e a l e s t a t e " a r e n o t i n t e r -

changeable.            Real p r o p e r t y d e s c r i b e s t h e t h i n g , i t s e l f ; r e a l

estate         describes       an    interest          in    real    property.           Sections
70-1-101,        -106,     -301, MCA.]

          While t h e " r e a l p r o p e r t v " o f s e c t i o n 15-7-304,             MCA,     is

n o t s p e c i f i c a l l y d e f i n e d f o r p u r p o s e s o f r e c o r d i n g and t a x a -

tion,     t h e d e f i n i t i o n can be a r r i v e d a t ,          either directly or
indirectl-y,         through       a     p a i r i n g of    the     1.a.ws of        property        and

ta.xatj.on.

         The c a b i n i n q u e s t i o n i.s l o c a t e d on F o r e s t S e r v i c e l a n d

on S e e l e y Lake.        I t was b u i l t more t h a n t w e n t y y e a . r s a g o a n d ,

a l t h o u g h it l a - c k s a f o u n d a t i . o n , i.s " a . f f i x e d W t o t h e l a n d by

means o f w a t e r and s e w e r T i n e s .               No h a i r - s p l i t t i n g    distinc-

tions       are,     however,          required.            The    cabin,        s o 1-01-19 a s       it

r e m a i n s upon t h e l a n d , i s r e a l p r o p e r t y .           " R e a l o r irnrnova.ble

property c o n s i s t s of            ...       t h a t which i s a f f i x e d t o l a n d . "

S e c t i o n s 70-1-106,       70-15-101,           MCA.      "A t h i n g i s deemed t o b e

a f f i x e d t o t h e l a n d when it i s           . . . permanently                r e s t i n g upon

it, a s i n t h e c a s e of              buildings."             S e c t i o n 70-15-103,          MCA.

Where p r o p e r t y i s a f f i x e d t o t h e l a n d o f a n o t h e r , " p e r m a n e n t -

l y " norma1l.y becomes a q u e s t i o n o f                  the parties'             intent, but

" [ n l e i t h e r t h e r u l e s o f t h e common l a w g o v e r n i n g t h e r e l a -
t i o n s h i p between t h e owner o f                t h e l a n d a n d t h e lessee, n o r

t h e i n t e n t i o n of t h e p a r t i e s a s expressed i n t h e i r c o n t r a c t

a r e c o n t r o l l i n g i n t h e f i e l d of taxation."               P a c i f i c M e t a l Co.

.    Northwestern           Bank         (Mont.      1983),       667     P.2d        958,     962,    40

St.F.ep.     1301,      1305.          An o b j e c t i v e t e s t a p p l i e s :      the taxing

authority          need o n l y    observe          the     structure;          the present            or

future intentions of t h e p a r t i e s a r e irrelevant.                                   The c a b i n

i s a b u i l d i n g r e s t i n q upon t h e ].and.             The f a c t t h a t it may b e

moved o r may h a v e t o b e removed i n t h e f u t u r e d o e s n o t ,                           for

t a x and. r e c o r d i n g p u r p o s e s , change t h e n a t u r e o f t h e c a b i n a s

real property.

         A less d i r e c t a n a l y s i s y i e l d s t h e same r e s u l t .                Proper-

t y must e i t h e r b e r e a l o r p e r s o n a l .             S e c t i o n 70-1-105,          MCA.

P e r s o n a l p r o p e r t y , when u s e d i n c o n n e c t i o n w i t h t a x a t i o n ,       is

d e f i n e d a s e v e r y t h i n g t h a t i s n o t i n c l u d e d . w i t h i n t h e meaning

of    the     terms      "real         estate"        and     "j.mprovements."                  Section
15-1-101 (1) h    ,   MCA.    Taxable real property must, then, as
the so1.e remaining category, include all improvements.               The
cabin     is,    by    definition,     an    "improvement."       Section
15-1- 1 1 ) e     ,   MCA    (defining   improvement to       include all
buildings situated upon land).              The cabin is real property
for purposes of recording as well as taxation.                    Section
15-7-302, IICA (tying recording to taxation by stating that
the purpose of the Act is to facilitate tax assessment).
Brown was required to give notice to the County of the trans-
fer of cabin ownership.         Section 15-7-304, MCA.
        Whi1.e all property owners are held to a knowledge of
the taxation and recording laws, there may appear to be a
certain injustice in imposing upon the property owner a duty
to follow the legislature"           circuitous route to a definition
of taxable real property.         No claim of undue burden or ineq-
uitable result can be made in the present instance.                 Brown
was a licensed real estate broker when he purchase6 the
cabin.    He knew or should have known that such hills of sale
are routinely recorded.           He, in fact--and, perhaps, most
importantly--paid at least three installments of real proper-
ty tax on the cabin.            Erown may not shift to the taxing
authority the burden of discovering his interest in the cabin
or of keeping informed of his predecessor's current address.
Madden v. Zimmerman (1975), 1 6 6 Mont. 285, 290, 532 P.2d 414,
417.     Brown was required, by statute, to report his purchase
of the cabin to the department of revenue.              His faj-lure to
receive notice of the delinquencies and tax sale is a direct
result of his knowing violation of the reporting require-
ments.     He may not, now, claim that a grave injustice has
been done. Section 1-3-208, MCA.
                               11

        In addition to questioning the applicability of the
reporting laws, Rrown challenges the authority of the County
to sell- the cabin as real estate.      He argues that the real
property sale and redemption provisions apply only to real
estate and    land, not improvements.     Rrown contends that,
while the cabin may be defined as real property for purposes
of assessment, it is, nevertheless, personal property and
must be    sold under the statutory provisions covering tax
sales of personal property.
        Appellantls contentions are without merit.     Although
Brown is correct in concluding that the tax collection stat-
utes do not specifically address the instance of separately
owned improvements, his conclusion that the cabin should have
been sold as personal property--a cateqory from which it is
expressly excluded--is incorrect.    One of the only two sig-
nificant results of his interpretation would be to rob like
owners of improvements of their statutory right of redemp-
tion.     Logic and fairness require like treatment of all
owners of real property.
        Section 15-24-1104, MCA, provides that, - addition -
                                                in         to
all other remedies available - - collection - taxes, a
                             for the        of
county may bring action for the collection of taxes due on
private interests held in federal tax exempt lands.    Contrary
to appellant's contentions, the County was not required to
bring action.    It had the option to proceed, as it did, under
the general tax collection provisions.    The provisions relied
on by the County refer to land and real estate rather than to
real property.     See, sections 15-16-101 through 15-18-404,
MCA.     The County was not required to bring the section
15-24-1104, MCA, suit for collection or to proceed in the
manner of sales of personal property.
        The tax statutes define real estate to include the
possession of, claim to, ownership of, or right to the pos-
session of land.      Section 15-1-101(1) (k), MCA.       Brown's, and,
now, Rlotkamp's possessory interest in the leased land is, by
definition, real estate and          clearly   subject to       the real
estate sales provisions.         An ownership interest in the cabin
is   not,   however,    an     interest   in   land.      The    section
15-1-101 ( I ) (k), MCA, definition does not expressly apply but
neither does it expressly limit the interests to be included
within the meaning of "real estate."            [Compare the section
15-1-101, MCA, definitions employing the words "means" or
"shall mean" in place of the subsection                (k) nonexclusive
"includes."1    We have already concluded that the cabin is
real property for purposes of taxation.         Any interest in real
property is, by tradition and statute, denominated an estate.
Section 70-1-301, MCA.         We hold that an interest in improve-
ments situated upon tax-exempt land is real estate for pur-
poses of tax sale and is required to be treated by the taxing
authority in like manner as all other real estate.                   The
present tax sale conformed to this requirement.            Our holding
is in accord with        the    1-egislature's express     intent that
separately owned      improvements be regarded as real estate.
See, sections 15-8-701(2)(g), MCA          (requiring that improve-
ments located on tax-exempt land be assessed in the same
manner as other real estate); 15-18-309, MCA (providing that,
where land is owned by the United States, a tax deed issued
to an    individual    is prima     facie evidence of a right of
possession).
      The cabin was subject to tax sale as real estate.      The
order of the trial court is affirmed.



                                 7 & d l Chief @
                                         t @ M L c Justike




lr concur:
 ie




      Justices




Mr. Justice Fred J. Weber:
       I concur in the result.
