Ball v. Clark
| Decision Date | 01 November 1912 |
| Citation | 150 S.W. 359,150 Ky. 383 |
| Parties | BALL et al. v. CLARK et al. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Pike County.
Action by George Ball and others against Donald Clark, trustee, and others. From a judgment for plaintiffs, defendants appeal. Reversed and remanded for further proceedings.
C. C Bowles, guardian ad litem, of Pikeville, and T. L. Edelen, of Frankfort, for appellants.
Auxier Harman & Francis, of Pikeville, and Hager & Stewart, of Ashland, for appellees.
This case is one of first impression in Kentucky. In 1900, Louisa Ball conveyed to Andrew Ball and Polly Ann Ball, one moiety each, a 100-acre tract of land in Pike county. Polly Ann Ball thereafter died intestate, leaving surviving her the infant appellants, who inherited her moiety in the land. While the title stood thus, one half in fee simple in the said Andrew Ball, on the 14th day of November, 1911, executed his deed of conveyance, whereby he conveyed to the appellee Clark trustee, etc., the following property, to wit: An undivided one-half interest in and to "all the coal, gases, salt water, oil and minerals of every description, in, upon, and under the tract of land hereinafter described, together with the full and complete rights and privileges of every kind for modern mining, manufacturing, and transporting such coal gases, salt water, oil and minerals, on, through and over said premises as well as all other products which the said party of the second part, his heirs, successors or assigns, now own or may hereafter acquire, and also with full rights of way to, from, and over said premises by the construction of roads, tramways, railroads or otherwise maintaining same for the purpose of extracting, storing, handling, manufacturing, refining, shipping, or transporting all of the said mineral products, whether contained in or under the said premises or elsewhere, and for any other purpose whatsoever, with the right and privilege to build, erect, alter, repair, maintain and operate upon said land, and at the option of the second party, his successors or assigns, to therefrom remove any and all houses, shops, buildings, tanks, derricks, inclines, tipples, dams, coke ovens, store and ware rooms, and machinery, and all mining equipment that may by party of the second part, his successors or assigns, be deemed necessary or convenient for the full and free exercise of all the property, rights and privileges hereby bargained, sold, granted and conveyed, also the full right to take and use all water, stone and timber under twelve (12) inches in diameter at the time of operation found on said premises which may be necessary for mining purposes, or any other purposes above mentioned; provided however that the said parties of the first part shall have the right to take for themselves only such coal as they may need for domestic use of their own family so long as they may remain on the premises hereinafter described." Then follows a description of the boundary above named. Thereafter appellee instituted in the circuit court, under subsection 2 of section 490 of the Civil Code, his action for a sale of all the rights gained in this conveyance, together with all the rights of his infant cotenants of like nature in the entire boundary, predicating his action upon the indivisibility of this particular species of property. The trial court granted the relief and decreed a sale of the properties and rights named in the entire property. From that judgment the infants, by their guardian ad litem, appeal.
It is settled in Kentucky, in the case of Kincaid v. McGowan et al., 88 Ky. 91, 4 S.W. 802, 9 Ky. Law Rep. 987, 13 L.R.A. 289, and Stuart, Trustee, v. Commonwealth, 94 Ky. 595, 23 S.W. 367, 15 Ky. Law Rep. 513, that the surface ownership of land may be in one man and of the minerals in another; that both in such a case are landholders; that the owner of land may convey the surface to one and reserve to himself an estate in fee in the minerals, or vice versa, or may convey the surface to one and the minerals to another; that the effect of such a conveyance will be to create an estate separate and distinct in the sundered properties, the one from the other, entire and complete in fee simple. The deed, therefore, from Andrew Ball to Clark, trustee, is entirely valid inter partes.
Likewise it may be considered to be settled that an estate in such minerals is the subject of partition. Freeman on Cotenancy & Partition, § 435; Canfield & Chapman v. Ford, 28 Barb. (N. Y.) 336; Hughes v. Devlin, 23 Cal. 505; White on Mines & Mining Remedies, § 591; Aspen Mining & Smelting Co. v. Rucker et al. (C. C.) 28 F. 220; McConnell v. Pierce, 210...
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