73 W. Va. 642 | W. Va. | 1914
Andrew J. Solesberry and -his wife Esther were joint tenants of a tract of land, partition of which is sought by plaintiffs as children and heirs at law of Esther Solesberry, who died intestate in 1871. After his remarriage, Andrew and his wife, by deed dated in 1880, conveyed the entire tract to Edward Sizemore, through whom, by mesne conveyances, title finally vested in "the Pocahontas Coal &. Coke Company in 1901. Andrew Solesberry died in 1905. By condemnation proceedings, to which the coal and coke company was sole defendant, the Virginian Railway Company acquired a right of way through the land. It constructed a spur track on the right of way, and has continuously occupied it since for railroad purposes. Together asserting a claim to an undivided seven-sixteenths in the land, plaintiffs, as such heirs at law, brought this suit against the coal and coke company and the railway company.
The only controversy between the plaintiffs and defendants relates to the manner of making partition. Each concedes the rights and interests owned by the others. The peculiar and unusual characteristics of the land, its small area, the number of shares of the claimants, the location of the railroad right of way, and other conditions, render the partition difficult, and to some extent inequitable, whatever plan may be adopted, whether by division in kind, by sale, or otherwise. It is crescent in form, its length being approx
The commissioners appointed by the court to divide and allot the lands to each cotenant found and reported them' as not susceptible of partition in kind, and recommended a sale and division of the proceeds. They were expressly directed to allot to the railway company its right of way, if in their opinion such allotment was feasible and could be made without prejudice to the interests of the plaintiffs. Upon exceptions by plaintiffs, which the court sustained, an order was entered recommitting the report to the same commissioners, with direction to make partition and assignment in kind pursuant to its former order. To the second report, made as directed, the defendants excepted; and, in support of their exceptions, they tendered a plat of the land, the accuracy of which was verified by the affidavit of the engineer who made it, showing a plan of division acceptable to defendants and, as they contend, just and fair to their co-owners the plaintiffs. The plan of partition thus suggested, if adopted, would have allotted to the railway company its right of way one hundred feet in width through the land, in so far as it is located wholly or in part on the tract, without compensation ascertained in the manner provided by law for condemnation proceedings, and without the right to the recovery of damages for the appropriation of parts of the lands assigned to some of the plaintiffs. But the defendants proposed that, if the plan suggested by them were adopted, an allotment of increased acreage out of the part assignable to the coal and coke company might be made by way of compensation for injury and damages allowable in condemnation proceedings. The plat and affidavit, together with the second report and defendants’ exceptions, were again referred by the court to the commissioners for their examination and report.
As to the feasibility of the plan suggested by defendants the commissioners in their third report state: “Your commissioners would further respectfully report that, after going
Every reasonable presumption is in favor of the report of partition made 'by commissioners, if proper and fair on its face. Cross v. Cross, 56 W. Va. 185. Hence, we must assume that the second and third reports in this case present a fair, equitable and just partition; or, as they say in their last report, that it “is the most practicable as well as the only equitable method of partitioning said land between the parties in interest, without material injury and without reducing the value of the same and the different parts thereof”.
In this case, however, defendants rely upon the rule stated
The right of a cotenant to the improvements made by him is not absolute. It is conditional, as the cases cited show,- the condition being that it work no injustice or injury to other co-tenants. The improvements are to be considered by the com-misioners as a circumstance to which due weight must of course be given, but which may be counteracted by other considerations having equal weight and importance as affecting the rights and interests of others in the same relation. It is an equity, but, as such, will not be enforced to the detriment of another party to the partition. Carper v. Chenowith, 69 W. Va. 729; 16 Am. & Eng. Enc. L. 113; Ward v. Ward, supra; Freeman, Cot. & Part., §509. The author last cited says: “It is the duty of a court of equity to cause these improvements to be assigned to their respective owners whose labor and money 'have thus been inseparably fixed on the land, so far as can be done consistently with an equitable partition”.
But, to be entitled to an allotment containing improvements, a cotenant must have placed the improvements thereon, and not one not standing in that relation. This leads to the inquiry whether the railway company is a cotenant with the plaintiffs. In Jewett v. Stockton, 3 Yerg. 492, 24 Am. Dec. 524, it is held that a deed by one eotenant conveying a specific portion of the common estate by metes and bounds is void as against his eotenant, to whom the portion so conveyed is subsequently set apart by partition. Other decisions, however, are to the effect that, while the deed is not void, it can not operate to the prejudice of a cotenant who did not unite therein. Gates v. Salmon, 35 Cal. 576, 95 Am. Dec. 139; Ballou v. Hale, 47 N. H. 347, 93 Am. Dec. 438; Dennison v. Foster, 9 Ohio 126, 34 Am. Dec. 429; Cox v. McMullin, 14 Gratt. 82; Buchanan v. King, 22 Gratt. 414, 422; Worthington v. Staunton, 16 W. Va. 208, 235. The case of Boggess
The result of the condemnation proceedings by the railway ■company against the coal and coke company, if effectual, was to vest title in fee in the entire strip condemned. It did mot, and could not, have the effect of making the railway company a cotenant with either the plaintiffs or the codefend-ant. It had no interest in any other part of the tract, because limited to its right of way, beyond which its interest did not extend. There was no such seizure on its part as is deemed essential to constitute cotenancy. 4 Kent. Comm. 368; 2 Bl. Comm. 182; 1 Crew Dig. 835; 5 Bac. Abr. 240, 241, 274.
The railway company was therefore not -a eotenant. Hence, it was not in a condition to demand a partition, and therefore not in a situation to demand that its improvements be set apart to it. The coal ‘and coke company was, of course, a cotenant. It could maintain a suit for partition; and, as it had received the compensation for the right of way, it might, under ordinary circumstances, insist that the improve-mtents be assigned to it, or, what is the same thing, to the railway company.’ But, whether it could or could not, is immaterial, in our view of the case; because, as said by 2 Elliott on Railroads, §934: “The construction of a railroad across the property may have damaged it to a greater or less extent, and such damage could not be taken into account by the commissioners and charged against the interest of the grantor in effecting a partition. Indeed, it is conceivable that a tract of land of which but a small part was taken, should1 be damaged by the construction of a railroad across it to an amount greater than the,entire interest of the tenant in common by whom alone its construction was authorized”. On the general proposition that one tenant in common can not convey to a stranger a specific portion of the common estate so as to prejudice the rights of his eotenants in the part conveyed, he cites Shepardson v. Rowland, 28 Wis. 108; Mattox v. Hightshue, 30 Ind. 95; Marsh v. Holley, 42 Conn. 453; Jewett
While the cases cited involve a grant by one cotenant of a definite portion of the land and not merely an undivided interest, there is no apparent reason for distinguishing them from cases where a railroad company acquires from one coten-ant a right of way by condemnation proceedings; for the grant and the condemnation, if valid, vest an absolute fee simple title in the grantee or condemnor. See Hill v. Woodward, 57 So. (Miss.) 294, 39 L. R. A. N. S. 538, in which it is said: “No public policy of the state can be allowed to override the positive guarantees of the constitution, or divest persons of their title to property except in the way which the law provides”. Whether the right acquired by either a grant or condemnation is more than a right of way or easement, it is not now necessary to determine. What is meant is that by neither method does the grantee or condemnor of a definite portion thereby become a cotenant with other owners of the land, although it has such an equitable interest as the courts will protect.
But, in any aspect or view of the case as presented by the record, the partition made by the circuit court seems as free from objections and inequalities as any partition could have been made of land situated and located as it is. Any other partition in kind, or by a sale and distribution of the proceeds, would have had the same, if not greater inequalities. It was made by practical men, those who were freeholders, acquainted with the value of lands, familiar with the conditions surrounding the tract partitioned by them, who studied it in all its complications, made their examinations on three different occasions, and seemed disposed to weigh and consider the rights and interests of the owners, including the rights and interests of the coal and coke company and of the railway corporation.
The conclusion therefore is to affirm the decree.
Affirmed.