Cecil v. Clark

• Citation: 35 S.E. 11,47 W.Va. 402
• Parties: CECIL et al. v. CLARK et al. HALL et al. v. SAME.
• Decision Date: 24 January 1900
• Court: West Virginia Supreme Court

35 S.E. 11

47 W.Va. 402

CECIL et al. v. CLARK et al.

HALL et al. v. SAME.

Supreme Court of Appeals of West Virginia.

January 24, 1900

Submitted November 2, 1899

Syllabus by the Court.

1. Extraction of coal by one tenant in common without consent of another is waste, for which he must account to that other.

2. Section 14, c. 100, Code 1891, does not apply to waste by joint tenant or tenant in common.

3. If one tenant in common take coal from land without the consent of another, he must account to that other therefor, and cannot keep the proceeds of the sale of the coal, without accounting, on the theory that the portion of land furnishing the coal is no more than his just share.

4. If one tenant in common use the common land, and exclude his co-tenant, he is accountable to such co-tenant, though he does not take beyond his just share of rents and profits.

5. If a tenant in common use the land for purposes allowable by law to a tenant in common, but use no more than his share, and do not exclude a co-tenant, he is not accountable to him for rents and profits.

Appeals from circuit court, Summers county; J. M. McWhorter, Judge.

Actions by W. P. Cecil and others and J. R. Hall and others respectively, against E. W. Clark and others, trustees of the Flat Top Coal-Land Association. Decree for plaintiffs, and defendants appeal. Affirmed.

J. S Clark and A. W. Reynolds, for appellants.

S. L Flournoy, W. Mollohan, E. W. Wilson, and JOHN OSBORNE, for appellees.

BRANNON J.

As will be seen in 44 W.Va. 659, 30 S.E. 216, these cases have before been passed on in this court. That decision settled that the tract of land involved in this litigation was held by tenancy in common by certain trustees, holding for the Flat Top Coal-Land Association, and Cecil and others, as heirs of Henley Chapman, and Sarah E. Torbett, as one of the heirs of Hall,--the trustees owning five and one-half tenths thereof; the Chapman heirs, four-tenths and Mrs. Torbett, one-twentieth. The said trustees, claiming the entirety of the tract of land, and denying the Chapman and Hall heirs any right therein, took sole possession of the land, by leasing it for coal mining to the Elkhorn Coal & Coke Company and the Shamokin Coal & Coke Company; and said lessees established an extensive plant, and mined large quantities of coal, paying the said trustees, lessors, large sums of money as royalty,--amounting, it is claimed, to $135,406.27, up to September 5, 1895, the date of the decree,--holding said land to be such common property and subject to such partition. The said decree, after declaring the shares of the parties in the land, directed an account to be taken of the moneys received by said trustees as royalties prior to the date of the decree; and, as to future royalties, it directed that said trustees pay into the Bank of Bramwell, to the credit of the causes, four-tenths and one-twentieth of all royalties accruing after September 5, 1895. At the instance of said trustees, the clause requiring such payment into bank was suspended on the execution of a bond by the Flat Top Coal-Land Company in the penalty of $10,000; and, said bond having been given, the said trustees continued to collect all the royalty. From the 5th of September, 1895, to April 9, 1898 (the later date being the date of the affirmance by this court of the said decree), the fourtenths and one-twentieth of said royalties going to the Chapman heirs and Mrs. Torbett, collected between said dates, amounted to $23,267.41. After the 9th of April, 1898, the royalty going to the Chapman heirs and Mrs. Torbett was paid into said bank, and amounted on the 27th of January, 1899, to $5,335.67. On that date the court made a decree requiring the said bank to pay to a special receiver appointed by said decree (George E. Price) the said $5,335.67, as, also, 80 per cent. of any other sums which might thereafter be paid into said bank under said decree of September 5, 1895, and requiring said trustees of the Flat Top Coal-Land Association to pay over to said special receiver $18,264.41, which, with $5,000 left in the hands of said trustees, to be thereafter disposed of, made up the $23,267.41, collected by said trustees as aforesaid on account of the interests of the Chapman heirs and Mrs. Torbett in the royalties accruing between September 5, 1895, and April 9, 1898, as above stated. The said decree of the 27th of January, 1899, went on to direct that said special receiver pay out the said moneys to the Chapman heirs and Mrs. Torbett, thus finally adjudicating their right thereto against the said trustees for said land association. From this decree of January 27, 1899, the said trustees have taken this appeal. The moneys received by the said trustees prior to September 5, 1895, have not yet been disposed of by the circuit court, but await the coming in of the account of rents and profits directed by that decree to be taken. Further, by that decree commissioners were appointed to make a partition of the land between the said tenants in common according to their respective rights, directing them to assign to said trustees their share in such manner as to include in their share the portion or portions of the tract on which they had made improvements, if the same could be done without injury to the other owners; and, in case said portion of said tract embracing said improvements should be laid off to the trustees, the commissioners were directed not to take into the estimate of value any improvement placed thereon by the trustees, nor deduct from the value of the portion assigned to said trustees anything on account of the coal mined therefrom, but to estimate the value of such portion at such sum as would be done if such portion of the tract had in it the coal so mined therefrom.

The appellants complain of the decree because it orders a distribution of any part of the royalties paid since September 5, 1895; claiming that the court should have held all of the royalties subject to its disposal until the coming in of the report of the partition commissioners, and the report of the commissioner in chancery as to rents royalties, and improvements, as required by the decree of September 5, 1895. The trustees claim that as they took possession, and developed, by coal mining, certain parts of the land, they should be assigned their share of the land, so as to include the coal mines opened by them, and as this would not cover more than their share of the surface, and as all the coal sold by them came from that land, they should be allowed to retain the money from its sale, without accounting to the Chapman heirs and Mrs. Torbett for any part of that money, and that said heirs and Mrs. Torbett should be assigned their shares in the undeveloped land. The trustees base this position or claim on the well-established principle that, where one co-tenant has made improvements upon a part of the common land, such improvements should be included in the land allotted to him in the partition, if the land is particle, and it can be done without injury to the rights of others, and the further principle, held in Dodson v. Hays, 29 W.Va. 577, 2 S.E. 415, that when the nature of the property is such as to admit of its use by several, and less than his just share is used and occupied by one tenant in common in a manner which in no way hinders or excludes other tenants in common from in like manner using and occupying their shares, such tenant does not receive more than comes to his just share and proportion, within the meaning of section 14, c. 100, of the Code, and is not accountable to his co-tenants for the profits of that portion of the property occupied by him. But does this case fall under that statute? The position mentioned would, on first impression, seem to be reasonable; but I repeat the question, does this case fall under that statute at all, or the decision in Dodson v. Hays? Instead of doing so, does it not fall under section 2, c. 92, of the Code, saying that "if a tenant in common, joint tenant or parcener commit waste, he shall be liable to his co-tenants jointly or severally for damages"? The other statute (section 14, c. 100, Code) provides that "an action of account may be maintained *** by one joint tenant in common against the other for receiving more than comes to his just share or proportion." These two sections are in the Code. They do not mean the same thing. We must give each its construction. Where one co-tenant occupies land for agricultural purposes in the production of yearly crops, fructus industriales, or other legitimate use for such a co-tenant, it is plainly just that he be allowed to do so without accounting to his co-tenant for such use, unless he occupies more than his share of the land; otherwise, he would not have the use of his share of the land. But, if he excludes his fellow from like enjoyment of his share, he must account to his co-tenant for that co-tenant's share, whether the occupation covers more or less than the share of the co-tenant so occupying. Or, if he occupies more than his share, though he does not exclude his co-tenant, thus not leaving open for his co-tenant that co-tenant's share for his enjoyment, he must account to him for taking more than his own just share of the profits. This liability to account did not exist at the common law. Use as much as he might, however profitable, one co-tenant was not liable to account to another. But section 14, c. 100, above quoted, changes this, by making him account for what is beyond his just share, to his fellow. Its only purpose is to change the common-law rule of non accountability as to the ordinary use of the common property which a co-tenant may legitimately make of it. Such legitimate use contemplated by that section...