Dimmick v. First Nat. Bank

• Decision Date: 01 March 1934
• Docket Number: 6 Div. 432.
• Citation: Dimmick v. First Nat. Bank, 153 So. 207, 228 Ala. 150 (Ala. 1934)
• Parties: DIMMICK v. FIRST NAT. BANK OF MONTGOMERY et al.
• Court: Alabama Supreme Court

153 So. 207

228 Ala. 150

DIMMICK v. FIRST NAT. BANK OF MONTGOMERY et al.

6 Div. 432.

Supreme Court of Alabama

March 1, 1934

Appeal from Circuit Court, Marion County; R. L. Blanton, Judge.

Bill by the First National Bank of Montgomery and W. O. Baldwin, as executors and trustees of the estate of A. M. Baldwin deceased, and Annie M. Dimmick Jones, Winona Dimmick Wilson and Margaret Dimmick Thetford, against Nora Spann Dimmick, to sell mineral rights in land for division of proceeds among joint owners or tenants in common. From a decree for complainants, respondent appeals.

Affirmed.

Beddow Ray & Jones, of Birmingham, for appellants.

Davis &amp Curtis, of Jasper, for appellees.

BROWN Justice.

This appeal is from a final decree of the circuit court, sitting in equity, ordering the sale of the mineral rights in a large body of land located in townships 12 and 13 in range 11, west of the Huntsville meridian in Alabama, consisting of 4,400 acres.

The bill avers that said mineral rights, and the rights incident thereto, "can not be equitably divided or partitioned among the joint owners thereof, the same being undeveloped mineral lands and the usual mineral and mining rights thereunto belonging as set out herein, and that by reason of the different locations of said land and the mineral carried thereunder, a division in kind cannot be equitably made among the joint owners, and that a sale of the same for division is necessary." The averments of the bill in this respect were denied by the respondent, who holds a one-eighth interest therein, presenting a question of fact, with the burden of proof on the complainants. Sandlin v. Sherrill, 201 Ala. 692, 79 So. 264; Smith v. Witcher (Hicks v. Witcher), 180 Ala. 102, 60 So. 391; 47 C.J. page 458, § 476.

The evidence was taken before the register and commissioners of his appointment, on oral examination, on this issue of fact, and the contention of appellant is that the mineral rights involved are located in a "proven" or "known" coal field, and, when the evidence is viewed in the light of the presumption that partition in kind is feasible and should be made, the evidence falls short of supporting the averments of the bill and the conclusion of the trial court that the property cannot be equitably divided or partitioned in kind.

Appellees' contention, on the other hand, is that the mineral rights are not in a body; that they are scattered over twenty separate sections, covering an area extending from north to south over a distance of 8 miles, and from east to west 4 miles; that the minerals in the northern area are more accessible than in the southern area; that the coal seam dips to the south from 30 to 50 feet to the mile, and slightly to the east, and is near the surface in the northern area; that in the northern area the "drift system" of mining may be practiced, affording an inexpensive method of draining, while in the southern area the "shaft system" must be used, requiring the removal of surplus water by pumping; that most of the area is rough and rugged on the surface, affected with hills, hollows, and ravines and meandering streams that have cut away a part of the coal in some of the tracts; that some of the minerals are more accessible to means of transportation, and that, on account of the rugged topography, property not accessible to transportation would be rendered less valuable on account of the costs of providing means of transportation, and to divide the property into small blocks would render the blocks less valuable; that the coal seam is affected with "squeezes," "rolls," "horsebacks," and faults, and there is no way of ascertaining their definite location except by actual mining; and that the seam is thinner in the southern area.

It is well settled that a joint owner, as a general rule, is entitled, as of right, to a partition in kind, and, where the property involved is a fee-simple title, a presumption of fact prevails, until removed by satisfactory evidence that partition in kind is feasible. Smith v. Smith, 216 Ala. 570, 114 So. 192; Miles v. Miles, 211 Ala. 26 99 So. 187; 47 C.J. page 457, § 472; Finch v. Smith, 146 Ala. 644, 41 So. 819, 9 Ann. Cas. 1026; Donnor...