140 S.E. 10 | W. Va. | 1927
In 1861 Wm. A. McMullin and G. A. Morrison conveyed to Samuel M. Young, as trustee for Elizabeth, the wife of Charles Young, a tract of 270 acres in Kanawha County. The grantees were given the privilege of using coal for household purposes. With that exception the minerals were reserved. The plaintiffs are claimants, by descent or assignment under the McMullin and Morrison title, of the minerals on the above tract. The principal defendants occupy parts of the 270 acres in severalty, under conveyances mesne or immediate from the Youngs. Those conveyances were made for the most part between 1880 and 1920 and purport to *319 convey the entire estate of the tract granted without excepting the minerals. Under those deeds the defendants have claimed the minerals and treated them as their own. The entire estate has been charged on the land books to, and the taxes paid by, the Youngs and their successors since 1865. The minerals reserved were never charged on the land books to, or any taxes thereon paid by, McMullin and Morrison and their successors. This suit was brought in November of 1924. Its purpose is to have cancelled all oil and gas leases made by defendants and all deeds under which they hold, so far as they import a conveyance of the minerals. The circuit court of Kanawha County found the plaintiffs guilty of laches and dismissed the bill.
The only allegation in the bill tending to explain the long delay in prosecuting this remedy is the following:
"That nearly all the plaintiffs are non-residents of the State of West Virginia, and that none of the plaintiffs were aware until a short time before the institution of this suit that the defendants or any of them were claiming title to said minerals."
Under Bill v. Schilling,
If it be conceded that the allegation of non-residence is good on demurrer, it is directly challenged by answer and not sustained by the evidence. Nelson V. McMullin is the only plaintiff who testifies. He admits knowing of defendants' adverse claims in 1916 or 1917, yet he gives no reason *320
for waiting from that time to 1924 before commencing this suit. The record does not disclose when the other plaintiffs learned of the invasion of their rights, and contains no excuse whatsoever for a failure to start this proceeding sooner. What was said by this court in Bryant v. Groves,
But, says plaintiffs' brief, "How can it be said that the McMullins have slept upon their rights when they had no knowledge that there was oil in the premises until it was actually discovered and where have defendants suffered any possible disadvantage ever by any act of the plaintiffs?" Citing Lannerd v. Burnam,
It appears from the evidence that coal banks have been opened on some of the tracts of defendants, and coal openly mined and sold commercially, though in a small way, for twenty odd years before 1924. The plaintiffs contend that the defendants had the right under the original conveyance to the Youngs to use the coal for domestic purposes, and that the sales of coal were in such small quantities as to furnish no notice of adverse claims. McMullin et al. v. Pritt et al.,
The evidence discloses that many of the predecessors in the title of the defendants are now dead. There is accordingly lost to defendants the evidence of such decedents as to the manner in which their claim to the minerals was asserted. In discussing the changes in conditions that constitute laches, it is said in a well considered opinion: "What constitutes a material change of condition has been the subject of much judicial discussion and some judicial dissension; but whatever doubt there may be as to other circumstances, it never has been questioned, to our knowledge, that the death of one of the parties to the transaction is such change." Riley v. Blackner,
The brief also contends that the defendants' possession has not been sufficient to oust plaintiffs of their constructive possession of the minerals. It is not necessary for us to decide the question of ouster, and we do not do so. Laches does not necessarily depend on ouster or the statutory bar.Pusey *323
v. Gardner, supra; Trader v. Jarvis,
In the case of Smith v. Clay, Ambler 645 (more fully reported in 3 Bro. C. C. 646), decided in 1767, Lord Camden, then the Lord Chancellor of England, said: "A court of equity which is never active in relief against conscience, or public convenience, has always refused its aid to stale demands, where the party has slept upon his rights and acquiesced for a great length of time. Nothing can call forth this court into activity, but conscience, good faith, and reasonable diligence; where these are wanting, the Court is passive, and does nothing. Laches and neglect are always discountenanced." That statement, founded on equitable maxim, has become axiomatic. It is quoted by the leading authorities on equity jurisprudence. It has been restated in whole or in part in hundreds of decisions and has been criticised or questioned in none. Upon it is based Trader v. Jarvis, supra, the leading case on laches in this State. In reliance upon the principles pronounced in that case, we held that the lower court rightly refused to countenance plaintiffs' demands in McMullin et al. v. Pritt etal., supra. A further examination of the authorities justifies our confidence in Trader v. Jarvis, supra. The evidence here presents a stronger case of laches than the Pritt case. Reasonable diligence and activity are entirely wanting in this case. The decree of the lower court will accordingly be affirmed.
*324Affirmed.