69 W. Va. 729 | W. Va. | 1911
The appellant here, a tenant in common with the appellee, her daughter, in a tract of 600 acres of land, brought this suit for partition thereof, offering the latter her choice of equal lots into which she regarded the land as susceptible of division, but asking an assignment to herself of the part on which an old family cemetery should happen to be.
After an unsuccessful demurrer, the defendant answered, expressing willingness to accept the plaintiffs offer and averring an agreement between the parties that E. E. Taylor, A. J. Long and M. J. Coberly should be appointed by the court to divide the land and make allotments of equal portions thereof to the parties in the event of failure of a mutual agreement. A decree was thereupon entered, appointing Taylor, Long and Coberly commissioners, and providing for assignment to the plaintiff of that portion on which the cemetery is located, if consistent with the best interests of both parties. They went upon the land, consisting of a long strip running back into the hills from the Tygart’s Valley Biver, and ran a line through it from one end to the other, so as to give each party a part of the river bottom land, a part of the cleared hill land, if any, a part of the timber and also water for agricultural and domestic purposes. Back from the river some distance a county road crosses the land, and another line was run along it, making four lots. Two of these on the’ southern or upper side, containing, respectively, 100.69 acres between the road and the river and 243 acres back of the road, on one of which the cemetery is located, were assigned to the plaintiff, and the other two, containing, respectively, 90.69 acres, lying between the road and the river, and 212 acres, lying back of the road, were assigned to the defendant. One of the commissioners, Long, refused to concur in or sign the report.
At a special term of the court, the parties again appeared and the plaintiff tendered and asked leave to file an amended bill, to the filing of which the defendant objected, but the court overruled the objection and permitted it to be filed. Then the latter demurred to it and, the demurrer having been overruled, an answer to the amended bill was immediately filed and replied to generally, and thereupon, over the objection of the plaintiff, the court heard the cause and rendered a final decree, confirming the report of the commissioners and appointing a special commissioner to convey the lots to the parties, respectively, in accordance with the report and the decree thereon.
The refusal of the court to allow time to take proof in support of the amended bill is a subject of lengthy and earnest complaint. If the subject matter of the amended bill bore materially on the main issue, this complaint might be well founded, but we are of the opinion that the matter set up in it amounts to nothing more than evidence which ought to have been presented to the commissioners and passed upon by them, or which it was proper to introduce as evidence to sustain the exception to their report. It says nothing more than that the plaintiff, pending the suit, had purchased a tract of land adjoining that portion of the land here involved which she now desires the court to assign to her; that, having purchased it and so produced a condition which makes it undesirable to adhere to her offer to
Upon consideration of all the evidence, we are also of the opinion that the court did not err in confirming the report of the commissioners and decreeing partition in accordance therewith. Upon the question of difference in value, we have nothing against the report except the opinions of three witnesses, controverted by the opinions of four, and the plaintiff’s offer to take the lower tract of land and the cemetery with a right of way to it and pay a difference of $500.00. No fact or circumstance,
Only one circumstance is shown constituting a plausible claim of an equity ignored by the court, namely, ownership of land adjacent to the part assigned to the defendant. There is no absolute right in a party to a partition of land to have his share so laid off as to adjoin his other lands. Ownership of adjacent land is a mere circumstance to be considered and may be counteracted by other considerations. The authorities relied upon, Hall v. Piddock, 21 N. J. Bq. 311, Cox v. McMullin, 14 Grat. 82, and 2 Dan. Ch. Pr. p. 1158, treat it as only an equitable circumstance, not as an absolute right. In this instance, the plaintiff tenaciously holds to her desire to have the cemetery assigned to her. At the same time, she wants her portion of the land laid off next to her other land. It does not appear that she can ob-' tain these two objects without detriment to the defendant. If the land should be so divided as to accomplish both results, the plaintiff would probably get all of the improved land. The form of her demand indicates impracticability of accomplishing the two results without giving a right of way over defendant’s land to the cemetery and the right to forever maintain a eemeterj^ within the midst of the defendant’s land, or division in a manner different from that adopted by the commissioners. We think the impossibility of laying off the plaintiff’s share of this land so as to adjoin her other land and give her the cemetery, with
For the reasons stated, we affirm the decree.
Affirmed.