47 W. Va. 402 | W. Va. | 1900
As will be seen in 44 W. Va. 659, (30 S.E. 216), these cases have before been passed on-in this Court. That decision settled that the tract of-land involved in this litigation was held by tenancy in cotnmon by certain trustees, holding for the Flat Top Coal-Land Association, and Cecil and others, as heirs of Henley Chapman, and Sarah E. Torbett, as one óf the heirs of Hall, — the trustees owning five and one-half tenths thereof; the Chapman heirs, four-tenths, and Mrs. Torbett, one-twentieth. The said trustees, claiming the entirety of the tract of land, and denying the Chapman and Hall heirs any right therein, took sole possession of the land, by leasing it for coal mining to the Elkhorn Coal and Coke Company and the Shamókin Coal and Coke Company; and said lessees established an extensive plant, and mined large quantities of coal, paying the said trustees, lessors, large sums of money as royalty,— amounting, it is claimed, to one hundred and thirty-five thousand four hundred and six dollars and twenty-seven cents, up to September 5, 1895, the date of the decree,— holding said land to be such common property and-subject to such partition. The said decree, after declaring the shares of the parties in the land, directed an account to be taken of the moneys received by said trustees as royalties prior to the date of the decree; and, as to future royalties, it directed that said trustees jiay into the Bank of Bramwell, to the credit of the causes, four-tenths and one-twentieth of all royalties accruing after September-5, 1895. At the instance of said trustees, the clause requiring such payment into bank ivas suspended on the execution of a bond by the Flat Top Coal-Land Company in the penalty of ten thous-. and dollars; and, said bond having been given, the said trustees continued to collect all the royalty. From the 5th of September, 1895, to April 9, 1898 (the later date being the date of the affirmance by this Court of the said decree), the four-tenths and one-twentieth of said royalties going to the Chapman heirs and Mrs. Torbett, collected between said dates, amounted to twenty-three thousand two hundred and sixty-seven dollars and forty-one cents. After the 9th of April, 1898, the royalty going to the Chapman heirs and Mrs. Torbett was paid into said bank, and
The appellants complain of the decree because it orders a distribution of any part of the royalties paid since September 5, 1895; claiming- that the court should have held all of the royalties subject to its disposal until the coming in of the report of the partition commissioners, and the report of the commissioner in chancery as to rents, royalties, and improvements, as required by the decree of September 5, 1895. The trustees claim that as they took possession, and developed, by coal mining, certain parts of the land, they should be assigned their share of the land, so as to include the coal mines opened by them, and as this would not cover more than their share of the surface, and as all the coal sold by them came from that land, they should be allowed to retain the money from its sale, without accounting to the Chapman heirs and Mrs. Torbett for any part of that money, and that said heirs and Mrs. Tor-bett should be assigned their shares in the undeveloped land. The trustees base this position or claim on the well-established principle that, where one co-tenant has made improvements upon a part of the common land, such improvements -should be included in the land allotted to him in the partition, if the land is partible, and it can be done without injury to the rights of others, and the further principle, held in Dodson v. Hays, 29 W. Va. 577, (2 S. E. 415), that when the nature of the property is such as to admit of its use by several, and less than his just share is used and occupied by one tenant in common in a manner which in no way hinders or excludes other tenants in common from in like manner using and occupying their shares, such tenant does not receive more thati comes to his just share and proportion, within the meaning of section 14, chapter 100, of the Code, and is not accountable to his co-tenants for the profits of that portion of the property occupied by him. But does this case fall under that statute? The position mentioned would, on first impression, seem to be reasonable; but I repeat the question, does this case fall under that statute at all, or the decision in Dodson v. Hays? . Instead of doing so, does it not fall under section 2, chapter 92, of the Code, saying that “if a tenant in common, joint tenant
As to the point made by counsel, that the bill does not charge waste, or g-o on that theory. I have to say that it does so in a legal point of view. It charges common ownership, and charges that the trustees took coal from the land; and that in law constitutes waste, and relief would come under the praver of general relief.
Another reason against allowing the trustees to keep all the money arising from the coal, without accounting to their co-tenants, on the theory that the trustees took no more than their lawful share, is that the trustees denied all title in the Chapman and Hall heirs, took sole possession, and excluded them from the laud. Those trustees cannot say, or have the benefit of the theory, that they did not exclude the Chapmans and-Halls, as they did not even concede their right when the Chapmans and Halls demanded a share in the land, but defended that suit through all the courts till the right of their adversaries was established. Therefore, if the taking of the coal is viewed, not as waste, but in the light of ordinary use for agriculture, and thus coming under section 14, chapter 100, of the Code, still the trustees must account, though they took less than their share, because of their exclusion of their co-owners. Early v. Friend, 16 Grat. 21, (Syl., point 2); Rust v. Rust, 17 W. Va. 901.
But the trustees, conceding for the moment that the case does not fall under chapter 100, section 14, and taking coal is waste, would fall back on a supposed general principle of equity, and say: “We have not occupied more land in mining than our share. All the coal taken by us came from the land occupied and improved by us, and, as that land can and should be assigned to us in the partition, we consequently ought to keep the proceeds of the coal, without accounting for it to the Chapman heirs and Tor-bett; and they should be compelled to take their share in undeveloped land, with its coal, which they may mine if
It is said that the trustees are entitled to keep the coal money because the decree of September 5, 1895, is res judi-cata, upon the question, and is violated by the decree of January 27, 1899. This calls upon us to construe the former decree. The clause above quoted from that decree directs-the commissioners ot partition to assign to the trustees their land, so as to include the land which they mined, if the same can be done without'injury to other owners,, and, in case the mined laud shall belaid off to th& trustees nothing should be deducted from the value of that land for coal mined therefrom, but that they shall estimate the value at such sum as would be done if the land had in it still the coal taken therefrom. The trustees say that this provision finally gives and compels them to take the land -exhausted by mining, and consequently lets them keep the money arising from the coal royalties since it cannot be that the court intended to force the trustees to take exhausted land, without deducting the value of the coal mined, and also yield to the Chapmans and Torbett their
It is hardly necessary to say that, as the Chapmans and Torbett have elected to participate in the money, the trustees cannot, in the partition, be given the exhausted land, without deduction of the coal taken from it. The Chap-mans and Torbett cannot have their full proportionate share of the land, as if never mined, and money also. As to the argument that the court erred in giving the money to the Chapmans and Torbett prematurely, before the coming in of the reports of partition and of rents and profits: It is said that whether the trustees shall be deprived of this money depends on the final determination of the question, whether they took more than their just share, and that this can only be determined upon the final account; but we hold that their accountability does not depend on that, but on the fact of waste. Having determined that the money goes to the Chapmans and Torbett, why withhold it longer from them? A large sum is in the hands of the trustees, received before 5th of September, 1895, in which the Chapmans and Torbett have a share, under principles above given; and that money has not yet been disposed of or passed on by the circuit court. This money is adequate to meet any demands for management or improvements, if any be allowed, and especially adequate in view of the fact that the improvements are mostly trade fixtures put up by the lessees, and removable by them,— not belonging to the trustees, who receive net money for royalty. I see no reason for keeping the money passed on by the decree of January 27, 1899, any longer from the people entitled to it, seeing that it cannot be needed for any future purposes of the case.
As to the disposition of the moneys from royalties paid prior to 5th of September, 1895, or the mode of partition of the land: These subjects, not being before us, remain for the action of the circuit court, and we express no opinion
The trustees claim that, as the husband of Mrs. Tor-bett is living, she is not entitled to her share of the money until his death, and that said trustees are entitled to its interest until his death, and that the decree erred in giving her her share at once. The former decision by this Court settled that point in favor of the correctness of the subsequent decree as to it.
Affirmed.