Byers v. Byers

• Decision Date: 03 January 1898
• Docket Number: 53
• Citation: 183 Pa. 509,38 A. 1027
• Parties: John H. Byers, Appellant, v. Jacob Byers
• Court: Pennsylvania Supreme Court

38 A. 1027

183 Pa. 509

John H. Byers, Appellant, v. Jacob Byers

No. 53

Supreme Court of Pennsylvania

January 3, 1898

Argued October 14, 1897

Appeal, No. 53, Oct. T., 1897, by plaintiff, from judgment of C.P. Westmoreland Co., November Term, 1895, No. 66, on verdict for defendant. Reversed.

Common law action of partition. Before McCONNELL, J.

At the trial it appeared that both plaintiff and defendant were sons of John Boyer, deceased, but the family name during the lapse of years was changed from Boyer to Byers. Plaintiff claimed partition of the coal underlying a tract of land of which his father had died seized. The material portion of the will of John Boyer who died in 1835 was as follows:

"And as to my land in Mt. Pleasant township it is my will that the proceeds of the lands and the increase of stock be taken and applied to building a house and barn and still house on the old place, and rebuilding the barn where I live. When finished it is my will that the land be equally divided in quantity and quality, having due regard to the timber and the stonecoal, and limestone between my sons John H. Boyer and Jacob Boyer, and I authorize my executors to make a deed of conveyance to each of my children for their land as soon as it conveniently can be done."

The evidence showed, and it was not denied, that in 1848 plaintiff and defendant made a parol partition, which plaintiff contended related to the surface of the land only while defendant contended that it included both surface and coal.

The court charged in part as follows:

[Now in the absence of either a written instrument making a severance of the coal from the surface, or in the absence of the acquisition of a title under the statute of limitations I know of no way to acquire title to real estate of this kind by a parol partition. Therefore, we say to you, that so far as this partition, or the allegation of the existence of a parol partition, that took place forty or fifty years ago is concerned, you must consider that as being a partition of a tract of land in its ordinary acceptation. You must regard the thing, as we must assume the testator regarded it, as a unit, a thing to be divided. There is no indication in the testator's will that there was any attempt on his part to sever the coal from the surface. There is no indication, so far as I can see, from the testimony, of any attempt, by John H. and Jacob Byers, by any instrument in writing, to make out of that single estate two estates, so far as severing it horizontally is concerned. Therefore, under what we have said to you, you are required to look at the evidence that has been produced here on the subject of this partition as bearing upon that tract of land as a unit, as one estate, and not as two separate and independent estates, one in the surface and one in the coal.]

There has been a great deal of evidence introduced here in regard to the relative value of these two tracts of land. That is a mere incident to the main inquiry that you have before you. It may be possible that by reason of the increase of the value of the coal from the time that this partition was made down to the present time, would make one side of that tract of land more valuable than the other, but that question is of no significance. We care nothing about that. This evidence was admitted for the purpose of showing what must have been obviously in the minds of these brothers when it is alleged they attempted to make partition of this land. The hills, the timber, the stone-coal, the limestone, the streams, the natural configuration of the land, its exposure to the winter winds, the natural quality of the soil; all these things were presumably in existence at the time when this alleged partition took place, and presumably were in the contemplation of the parties at that time.

You will recall that the death of the testator, as testified to by one of the defendant's witnesses and perhaps the plaintiff's also, was on November 27, 1835. His will was dated on October 25, 1835, and probated on January 6, 1838. Jacob Byers gives his version of the facts in this case; he says that he and John lived together until 1843; that the attempted division of the real estate was in 1848; that at his father's death he was seventeen, and his brother twenty-one or twenty-two; that he himself was married in 1842; that the coal was not opened at the time of this attempted division; that is, not opened at the coal mine, as it is now; that they took coal out of the bottom of the run, and that in 1854 he and John opened the present coal bank; and that in 1857 the spring was taken, and so on.

Now, then, there is a claim, however, on John H. Byers' part that he has always had the right of taking out coal. Now, if this partition that I have spoken of took place, and it was the intention of the parties that it should be a complete severance indefinitely downward, so that the coal, like every other part of it would fall as the surface fell, and that dividing line was lived up to, then John H. cannot take back a thing out of that partition, a thing that was a constituent element in it. It is either a partition or it is not a partition. If it was a partition, everything that was parted must remain parted so far as effectiveness of that proceeding is concerned. It is like an "exchange" of lands about which we will not bother; there is an implied warranty in every common law partition, that is, as long as the parties to that partition own their respective parts there is an implied warranty of the one to the other. When the title of one of them fails, the title of the other fails with it as long as the parties are in possession of what they parted themselves. There is that warranty, so that if this seam of coal was in the land, and there had been no severance, and was part of the land, if you find a partition took place, John H. Byers cannot withdraw from that partition this seam of coal, and then claim that the partition exists as to the residue. [If that partition stands, it must stand on both legs. If its one leg is taken away it must fall. This is either a partition or it is not. And we have said to you that independent of a writing severing that which was one estate, and making it two estates horizontally, and independent of the statute of limitations, you must consider that as a unit, and if John H. Byers exercised the rights of taking coal, you must look on that as affecting the question whether or not a partition of that unit took place or not.]

Now, then, what was the condition of things at that time? In 1848, was this coal mine as it now exists opened? Was the coal considered of any particular value at that time? Look at it as it looked to them at that time. Before 1848 and down until 1854, what evidence has been introduced here to show you the rights of John H. Byers in regard to taking coal? What did he do at that time independent of what is now said? After looking at all these things that were done at that time, as bearing upon this question, you will then look at the declaration of the parties in regard to it. There has been evidence introduced on that subject. John H. Byers has given his version of his claim, and Jacob has given his version. There have been witnesses called here who testified in some particulars in contradiction of these respective witnesses in that regard. All these declarations you are to consider in disposing of this question. The kind of testimony that is the most material is of the things done at the time. The most honest men in thinking about matters that transpired in the past often become confused about what the exact fact was then in comparing it with the state of affairs now. What was said and done then? If a partition took place, we do not regard it as being made out in the same way that a parol sale of land has to be made out in order to guard against the provisions of the statute of frauds. The same degree of accuracy is not essential as would be essential there. If a partition took place, and the parties receded from that partition line, that was a confession, a mutual confession of being ousted from his former cotenant's side of the line, and the titles of the parties commenced then, if the division was made pursuant to the contract. All these things in regard to what they did afterwards, how they did it, all bear on the question of how they understood it, whether or not there was a partition at that time.

Now, then this much in regard to partition. [Then the next question would be in regard to whether or not there can be an acquisition to the title to the land, assuming that a partition was made which affected the coal, and that the partition of the coal on Jacob's side went with the surface land on that side to Jacob, let us next look at the question of whether or not the acts that have been detailed in the witnesses' testimony here would allow John H. to acquire title under the statute of limitations to this coal mine that Jacob says was opened in 1854.]

[If you find that there was no partition at all, and that this land remained undivided as it came to them from the will of John Boyer, then there could be a recovery of the undivided one half interest in the subject-matter of this suit. If you find that there was a partition, and that John H. has not acquired title under the statute of limitations, then you would find that they do not hold together and undivided the property described in the statement of claim.] If you find that John H. acquired title under the statute of limitations for an undivided one half interest in the subject-matter of the suit, then your verdict would be that they do hold together and undivided the property described in the statement of claim, and that John holds one undivided half thereof.

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