140 S.E. 4 | W. Va. | 1927
This suit was instituted for partition of 1 1/2 acres of oil and gas land, situated in Roane County, and owned by the parties as follows: 1/2 of the mineral and surface by the plaintiff, R. C. Hall; 1/2 of the surface by the defendant, L. E. Garrett; and 1/2 of the mineral by the defendants, L. A. Douglas, R. R. Douglas, Ufa Douglas, Hallie Douglas Adams, Ethel Townsend, Vera McKown, J. B. Vineyard and Flora Vineyard, subject to a lease for oil and gas to the defendant United Fuel Gas Company. The answer of the United Fuel Gas Company avers that it will cost more than the value of the gas to drill a well on the land; that "the only way in which the rights of the parties in the oil and gas and other minerals thereunder can be preserved is to sell the same and divide the proceeds"; and prays in the alternative for dismissal of the bill or sale of the minerals and distribution of the proceeds among the parties in interest.
By decree of June 27th, 1925, the circuit court "adjudged, ordered and decreed that the surface only of said land can be partitioned in this suit". This Court upon a former appeal affirmed that decree, in so far as it directed the partition in kind of the surface only, and remanded the cause for sale of the oil and gas and distribution of the proceeds among the parties in interest. Hall v. Douglas,
(1) The entry of the decree of sale before determining the interests of the parties in the oil and gas, and the absence of proof that the interests of all the parties would be thereby promoted.
(2) The denial to the plaintiff of the right to participate in the proceeds of sale, and the directing of payment of one-half thereof to J. P. Young, a stranger to the suit.
The decree involved in the former appeal specifically determined the interests of the parties in the oil and gas, as well as the surface of the 1 1/2 acres of land. The appellant, having averred in its answer that the only way in which the rights of the parties in the oil and gas could be preserved was by sale and division of the proceeds, is not in position to question the propriety of the sale; nor is it prejudiced by the decree complained of, in so far as payment of one-half of the proceeds of sale is directed to J. P. Young, as assignee of the plaintiff, R. C. Hall. The appellant, however, is prejudiced by the decree denying it the right to participate in the proceeds from the sale of the interest in the oil and gas belonging to the defendants L. A. Douglas, R. R. Douglas, *289 Ufa Douglas, Hallie Douglas Adams, Ethel Townsend, Vera McKown, J. B. Vineyard and Flora Vineyard, and the decree, appealed from, to this extent will be reversed, and the cause remanded for the purpose of ascertaining the value of its lease, and of directing payment thereof from the proceeds derived from the sale of the interest of said defendants. Although title conferred by an oil and gas lease is inchoate until oil or gas is found, the lessee has, nevertheless, by virtue of the lease alone, a property right which is subject to taxation in this state. It is a chattel real.
Reversed and remanded.