Consolidated Gas Supply Corp. v. Riley

• Decision Date: 11 July 1978
• Docket Number: No. 13828,13828
• Citation: Consolidated Gas Supply Corp. v. Riley, 247 S.E.2d 712, 161 W.Va. 782 (W. Va. 1978)
• Court: West Virginia Supreme Court
• Parties: CONSOLIDATED GAS SUPPLY CORPORATION v. Marie RILEY et al.

Page 712

247 S.E.2d 712

161 W.Va. 782

CONSOLIDATED GAS SUPPLY CORPORATION v. Marie RILEY et al.

No. 13828.

Supreme Court of Appeals of West Virginia.

July 11, 1978.

Dissenting Opinion Sept. 20, 1978.

Syllabus by the Court

1. "A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syllabus Point 3, Aetna Casualty and Surety Company v. Federal Insurance Company of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

2. The common law right to compel partition has been expanded by statutes to include partition by sale. W.Va.Code, 37-4-1, Et seq.

3. By virtue of W.Va.Code, 37-4-3, a party desiring to compel partition through sale is required to demonstrate that the property cannot be conveniently partitioned in kind, that the interests of one or more of the parties will be promoted by the sale, and that the interests of the other parties will not be prejudiced by the sale.

4. As a result of the 1939 amendment to W.Va.Code, 37-4-1, there is a statutory right to have partition in kind considered where mineral interests are involved.

5. A subsisting lease on a mineral interest sought to be partitioned is not an absolute bar to partition of such mineral interest.

James C. West, Jr., Jones, Williams, West & Jones, James P. Martin, Clarksburg, for appellants.

Patrick D. Deem, James A. Russell, Steptoe & Johnson, Clarksburg, for appellee.

MILLER, Justice:

Appellants complain about the propriety of a summary judgment obtained by appellee, Consolidated Gas Supply Corporation (herein Consolidated Gas) in a partition suit it filed against appellants who were individual co-owners of oil and gas underlying three tracts of land in Lewis County. We reverse.

Consolidated Gas alleged in its complaint that it was the owner of an eleven-twentieths undivided interest and the lessee of all the oil and gas underlying the three tracts of land. It also stated that the oil and gas property was incapable of being partitioned in kind and that the interest of all parties in said property would be promoted by sale of the same. The appellants answered the complaint denying most of the material allegations contained therein.

The appellants specifically denied that the oil and gas could not be partitioned in kind, that a partition by way of sale would promote their interests, and asserted that their interests would be materially prejudiced by a sale.

Consolidated Gas filed a motion for summary judgment, the entire substance of which was that the court should "pursuant to Rule 56 of the West Virginia Rules of Civil Procedure . . . enter summary judgment for the plaintiff on the ground that there is no genuine issue as to any material fact in this civil action between plaintiff and defendants, and, therefore, plaintiff is entitled to judgment in its behalf as a matter of law."

No affidavits, stipulations or discovery procedures were filed either with the motion or in opposition thereto. Consolidated Gas filed copies of various deeds showing how it acquired its eleven-twentieths ownership interest in the oil and gas.

At the hearing on the plaintiff's motion an order was entered granting the summary judgment. The sole reason stated in the judgment order was: "The finding of the court that no genuine issue as to any material fact in this action (exists) between the parties hereto and that said motion should be sustained."

The order appointed counsel of Consolidated Gas as special commissioner to conduct a public auction and offer for sale for cash the oil and gas property, subject to Consolidated Gas' existing oil and gas lease.

Nothing in the record suggests the basis of the trial court's conclusion that no genuine issue of any material fact existed. On appeal, Consolidated Gas asserts that, as a matter of law, it had an absolute right to partition the property by way of a sale. We assume it is on this theory that the summary judgment was granted. Under settled principles governing summary judgment, we need only determine if there was a genuine issue of material fact. Cassella v. Weirton Construction Company, W.Va., 241 S.E.2d 924 (1978); Aetna Casualty and Surety Company v. Federal Insurance Company of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

At common law the right to partition was available only by way of a division in kind and was limited to one class of co-owners coparceners who received their interest through descent. It was the involuntary nature of their receipt of title that originally provided the right to partition. The history of the expansion of the right to compel partition lies in legislative enactments. ¹ These principles were generally recognized in Loudin v. Cunningham, 82 W.Va. 453, 96 S.E. 59 (1918), where the Court stated:

"The common law did not authorize a sale of lands jointly owned, in case partition could not be made; and only that class of joint owners technically called coparceners could compel partition; that is, heirs inheriting from the same source at the same time. But by statute enacted in Virginia at an early date, and adopted by this State, . . . tenants in common and joint tenants were also given the right to compel partition." (82 W.Va. at 456, 96 S.E. at 60)

Because our statutes governing involuntary partition have been subject to a number of amendments over the years, our earlier cases must be read in light of subsequent statutory changes to what is now W.Va. Code, 37-4-1, Et seq.

The argument advanced by Consolidated Gas is that W.Va. Code, 37-4-1, provides an absolute right to compel partition for those interests therein set out. ² The point is made that in 1939 the Legislature intended to provide an absolute right to partition of oil and gas by amending this section and adding in the first sentence this language: ". . . of real property including minerals and lessees of mineral rights other than lessees of oil and gas minerals . . . ."

While W.Va. Code, 37-4-1, is drawn in mandatory language if partition in kind is not feasible, this Court has never interpreted the statutory right to partition by sale as absolute. W.Va. Code, 37-4-3. Consolidated Gas does not seek partition in kind, but a partition through sale. This procedure is purely statutory, and while the statute has been altered over the years, this Court has consistently held that the statutory requirements must be met. In Loudin, a construction was made of Chapter 79, Section 3 of the 1913 Code, the forerunner of our present W.Va. Code, 37-4-3, wherein the Court stated:

"A cotenant cannot have the land sold rather than partitioned, as matter of right, the right of sale being only an incident of, and subordinate to the right of partition. Certain facts must exist before the court is authorized by the statute to sell. It must appear (1) that partition cannot be conveniently, or equitably made, and (2) that the interests of all the joint owners will be promoted by a sale, before the court can properly decree a sale. This Court has held in a number of cases, that a sale of land in a partition suit cannot be decreed, 'unless it affirmatively appears in the record that partition cannot be conveniently made and that the interests of the parties entitled to such real estate will be promoted by a sale thereof,' which is but the plain meaning of the statute. Herold v. Craig, 59 W.Va. 353, 53 S.E. 466; Casto v. Kintzel, 27 W.Va. 750; Roberts v. Coleman, 37 W.Va. 143, 16 S.E. 482; Stewart v. Tennant, 52 W.Va. 559, 44 S.E. 223; Smith v. Greene, 76 W.Va. 276, 85 S.E. 537." (82 W.Va. at 456, 457, 96 S.E. at 60)

In the 1931 revision of the West Virginia Code, this section was given its present chapter identification and the first sentence was altered by adding the italicized phrase: " . . . if the interests Of one or more of those who are entitled to the subject, or its proceeds, will be promoted by sale . . . " (W.Va. Code, 37-4-3) The Legislature in addition added to the first sentence of this section the following clause: " . . . and the interests of the other persons so entitled will not be prejudiced thereby . . . "

The revisers' note to W.Va. Code, 37-4-3, gives the following explanation for the foregoing revisions:

"Section 3, c. 79, Code 1923, is modified to make it clear that the consent of all interested parties is not necessary to a sale in partition proceedings. There has heretofore been some doubt among the members of the profession upon this question."

While the revisers' note may be of only limited historical interest, it does not appear from the pre-1931 cases that this Court ever required the "consent" of all parties to a partition sale. Rather, the emphasis was on finding that the interests of all parties to the partition " 'will be promoted by the sale.' " Garlow v. Murphy, 111 W.Va. 611, 163 S.E. 436 (1932); Brockman v. Hargrove, 103 W.Va. 254, 137 S.E. 11 (1927); Bracken v. Everett, 95 W.Va. 550, 121 S.E. 713 (1924); Eagle Land Company v. Jarrell, 94 W.Va. 564, 119 S.E. 556 (1923); Loudin v. Cunningham, supra.

It is obvious, however, that the 1931 revisions to W.Va. Code, 37-4-3, have resulted in two changes. First, there is no requirement that a person show that all the interests involved in the partition will be promoted. Second, it must be shown that the other interests will not be prejudiced by a partition by sale. Our cases demonstrate that after 1931, a party desiring to compel partition through sale is required to demonstrate that the property cannot be conveniently partitioned in kind, that the interests of one or more of the parties will be promoted by the sale, and that the interest of the other parties will not be prejudiced by the sale. Morrison v. Holcomb, 123 W.Va. 153, 14 S.E.2d 262, 265 (1941); Starcher v. United Fuel Gas Co., 113 W.Va. 397, 168 S.E. 383, 384 (1933). ³

The question of what promotes or prejudices a party's interest...