63 W. Va. 249 | W. Va. | 1907
The Robertson Consolidated Land Company, a corporation, J. F. Paull, trustee for himself and R. P. Chew, were each the owner of an undivided one-third interest in and to all the
On the 23rd of October, 1906, the cause was brought on to be heard upon the process duly served,- the bill taken for confessed at the rules as to all the defendants who still failing to answer, plead or demur, or otherwise appear in defense, the confession entered at rules was confirmed and the court proceeded to decree a partition of the said interests and appointed John B. Hudson, a civil engineer, J. F. Alridge and Harry Thompson commissioners to make partition of the real estate described in the bill and that they should make such partition and report to the same term of the court accompanying their report with a description of the proper metes and bounds of the respective parcels alloted to the parties entitled to share in the partition with all the evidence which might be taken before them pertaining to the matter of said partition, and plat and deeds used, read and made in connection therewith; and that if the said commissioners should determine that the said property was not susceptible of partition they should so report to the court setting forth the facts upon which they based their conclusion. On the same day, October 23, 1906, the commissioners were qualified by taking the oath to impartially make said partition, and on the 27th of October, 1906, made their report together with a plat and description of the several parcels allotted to the persons entitled thereto, which was filed on the 29th day of October, 1906, and a decree was then entered confirming the same and describing the several parcels so to be held by the parties in severalty respectively by metes and bounds.
It appears from the bill and title papers filed therewith that none of the parties to this suit have any interest in the surface or soil of said property but had only title to the coal, gases, salt water, oil and minerals of every description in, upon and under said tract of land “ together with the necessary rights of way over and across said land for- mining and transporting said coal, gases, salt water and minerals with the right to take and use such timber trees as may be necessary for mining purposes found on said lands.” In Smith v. Cooley, 65 Cal. 46, (2 Pac. 880), it is held: “A grant of an undivided interest in a piece of mining ground expressly conditioned that no rights are conveyed, except a mining right upon the premises, vests in the vendee only the right of taking from the land any minerals or ores contained in it to the extent of the interest granted. He does not by virtue of the conveyance become a coparcener, joint tenant, or tenant in common with the vendor in the land itself. His interest is not an estate which can be the subject of an action for partition.” And in Hall v. Vernon, 47 W. Va. 295, it is held: “Partition of oil and gas owned by co-owners separate from the surface cannot be decreed, except by sale and division of the proceeds. A
The object of the bill in case at bar is for the partition of all the interests of the parties in said land, composed of coal, gases, oil, salt water, &c. As has been seen this Court has held that oil and gas interests cannot be partitioned. Dangerfield v. Caldwell, 151 Fed. Fep. 554, was a case which went up from the Southern District of West Virginia to the Circuit Court of Appeals, where it was held: “A tract of land known to have oil or gas or both under its surface is not property susceptible of partition in kind.”
Even if the coal and other solid minerals could be partitioned all the interests of the parties cannot be partitioned in kind; hence, the decrees of partition are erroneous.
It is further alleged that it was error to accept and confirm the report of the commissioners because no notice was given to the parties in interest of the time the commissioners took action under the decree. It is contended by\p-pellee that there is nothing in the record on the question of notice; that it does not appear by any statement on the record that the notice was given, nor any proof in the record “from beginning to end that such notice was not given. And we contend that this Court must presume, in the absence of proof to the contrary, that such notice was given.” In Wamsley v. Coal and Lamber Co., 56 W. Va. 296, it is held: “Although the statute does not, in terms, require notice to be given by commissioners in partition to the parties, yet the necessity of such notice must be implied, and an exception to the report for failure to give such notice will be sustained and the report set aside.”
The decree confirming the report of the commissioners partitioning the property was made in the absence of any appearance on the part of the defendants. They made this one of the grounds of their motion to set aside the decrees and grant a re-hearing, which was equivalent to. an exception to the report of the. commissioners. The action of the commissioners in carrying out the decree of the court shows upon its fate what they did in the premises and nothing further will be presumed to have-been done by them. It appears from the report that the
The appellee in its. bill prays for a sale of the property and a division of the proceeds in case the same cannot be partitioned in kind, and the appellants in their petition for appeal pray for the reversal of said decrees and that the case be remanded to the circuit court of Logan county “with directions to make a sale of the property and divide the proceeds among the parties entitled thereto. ”
For the reasons herein given the said decrees are reversed, set aside and annulled and the cause remanded to the circuit court of Logan county for further proceedings there to be had therein according to the principles laid down herein, and further according to the rules governing courts of equity.
Reversed. Remanded.