160 Ky. 365 | Ky. Ct. App. | 1914
Opinion of the Court by
Reversing.
Of course, final disposition of these royalties depends upon the ownership of the land in dispute, and that is governed by the location of the dividing line in question. By consent the action was transferred to equity, and the Scotts and Daniels took their proof and the case was submitted. Thereupon the court rendered this judgment:
“This cause having been submitted for judgment, and the court being sufficiently advised, after due consideration of the pleadings, proof and exhibits, orders, decrees and adjudges that the plaintiff’s cause of action be dismissed, and they take nothing thereby, and it is, therefore, adjudged by the court that the defendants, Mary Daniels and others, recover of the plaintiffs their costs herein expended.
“It is further adjudged that the money held by the Master Commissioner and received by this court be further held by him until the further orders of this court, and the defendant, Thacker Coal Mining Company, is directed and ordered to pay future royalties arising from said land in controversy into the hands of this court’s receiver.
“It appearing that the large map which had heretofore been made part of the record, but not filed, and the same having been used on the trial of this cause, the clerk is directed to endorse same filed. The said map is endorsed N. A. Barney, S. P. C., and filed October 1st, 1912, J. A. Scott, Clerk of the Pike Circuit Court, marked, Exhibit ‘Thacker.’
“It is agreed between the parties if appeal is taken to the Court of Appeals in this cause that the original map heretofore indicated marked ‘Thacker’ be transmitted with the record, to be considered on said appeal. The plaintiffs, Emery Scott, and others, to the above judgment and to all of which object and except and pray an appeal to the Court of Appeals, which is granted, and as to who is the owner or entitled to the funds now in the hands of the receiver of this court and funds hereafter paid into the hands of the receiver by the Thacker Coal Company is reserved and the court takes time.
_ From this judgment both parties appeal, and, in our opinion, the lower court erred as to each. It is apparent from this judgment that the court has not decided “who is the owner and entitled to the funds now in the hands of the receiver of this court.” Hence, we must conclude that the lower court has not decided the question of ownership of the land, or location of the division line between the Scotts and Daniels. If the line be located, then there is no reason for withholding the payment of the royalties. There is no pretense that there are other claimants to this fund or any of the land. From the record the Thacker Coal Company has all of it under lease. The coal company, tenant in possession, will not be heard to say that its landlords have no title. In fact, it says that one or the other has title.
All parties concede that what the Scotts do not own, the Daniels do. Why then the court should dismiss plaintiff’s petition and in the same judgment reserve for further orders disposition of the royalty, it is difficult to understand. Plaintiff is entitled to have the lower court pass upon her claim to the land in dispute, and if adjudged to be the owner, be awarded the royalties. The judgment would be clear had plaintiff’s petition been dismissed, and the royalties awarded to the Daniels, but when the lower court reserves for further orders a judgment as to royalties, it apparently leaves undecided the only question in the case — ownership of the land. If it is intended by the judgment merely to dismiss the petition as to the Thacker Coal Company this was erroneous in the face of its admitted liability, and the order to continue paying into court the royalties as they accrue. The case as to the coal company should be kept on the docket to hold it amenable to the court’s further orders. No judgment should go for costs between the Scotts and Daniels until their controversy is finally terminated on the merits.
The judgment is reversed on both the original and cross-appeal, and the lower court is directed to try the cause, establish the line, and dispose of the royalties between the parties hereto, and leave is given to withdraw the large map used as an exhibit on this appeal.