Henderson v. Chesley

Citation273 S.W. 299
Decision Date08 April 1925
Docket Number(No. 6836.)
PartiesHENDERSON et al. v. CHESLEY et al.
CourtCourt of Appeals of Texas

Appeal from District Court, Coleman County; J. P. Woodward, Judge.

Partition suit by Margaret E. Chesley and others against Upton Henderson and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Snodgrass, Dibrell & Snodgrass and J. B. Dibrell, Jr., all of Coleman, for appellants.

Critz & Woodward, of Coleman, for appellees.

BLAIR, J.

This appeal is from a judgment decreeing a partition in kind between appellants and appellees of all the coal, oil, natural gas, valuable stones, and all other minerals and mineral rights whatsoever existing in, on, and under a certain 1,107-acre tract of land in Coleman county, Tex.; also appointing three commissioners to make the division and report the same to the next term of the court. The cause was tried to the court without a jury upon substantially the following agreed statement of facts:

Appellants own the fee to the land and have used it for many years for grazing and agricultural purposes. They own the fee by purchase, and also own a one-half undivided interest in the aforesaid minerals, acquired as an incident to the fee-simple title. Appellees own an undivided one-half interest in and to the mineral rights; they and their predecessor in title having acquired this interest many years prior to appellant's purchase of the fee. By two suits, one in 1906 and the other in 1920, appellees and their predecessor in title have established against appellants their undivided one-half interest in these mineral rights in and to the land, and in each of these suits appellants have been decreed the owners of the fee, except as to this interest of appellees.

Since the first suit in 1906 appellants have placed 550 acres of the land in cultivation, divided the tract by fences, and have built five houses thereon. These improvements were made prior to the enactment of chapter 105, Acts 35th Legislature (1917), amending article 6096, R. S. (Vernon's Ann. Civ. St. Supp. 1918, art. 6096), and the interests of all parties to this suit in the land or mineral rights were acquired prior to this legislation, and of course these improvements were made subsequent to the date appellees acquired their undivided one-half interest in and to the mineral rights.

The land has never been explored for coal, oil, natural gas, valuable stones, or other minerals. It is not certainly known whether any of the aforesaid minerals exist in, on, or under said land, and it cannot be determined in what part of said land minerals exist, or in what way they are distributed in and under said land.

The trial court held that article 6096, R. S., authorized the partition of the aforesaid mineral rights. Originally article 6096 read:

"Any joint owner or claimant of any real estate or of any interest therein, may compel a partition thereof between the other joint owners or claimants thereof, in the manner provided in the succeeding articles of this chapter."

As amended in 1917 (Vernon's Ann. Civ. St. Supp. 1918, art. 6096), it reads:

"Any joint owner or claimant of any real estate or of any interest therein or of any mineral, coal, petroleum, or gas lands, whether held in fee or by lease or otherwise, may compel a partition thereof between the other joint owners or claimants thereof in the manner provided in the succeeding articles of this chapter."

The sole question for our determination here is whether or not, under the facts of this case, appellees are authorized to compel a statutory partition in kind of the aforesaid mineral rights. Appellants contend that the partition decreed by the trial court is not authorized for the following principal reasons:

(1) That appellants and appellees are not joint owners of such a separate and distinct interest in the land in the sense that the statute will compel a partition.

(2) That, since no exploration has been made, the extent, value, and location of the minerals sought to be partitioned are all unknown, and are incapable of ascertainment, and no partition in kind can be lawfully had, and that, if any partition could be had under these circumstances, it could only be accomplished by a sale of the estate with partition of the proceeds.

(3) That the interests or estates are not of equal dignity, and cannot be partitioned.

(4) That since all parties acquired their interest in the land prior to the enactment of the 1917 amendment to article 6096, R. S., no partition could be compelled under it, as contravening the retroactive clause of the Constitution.

Other contentions are made by appellants why the partition should not be made, which will be discussed along with the above general propositions. A review of the history of statutory partition in Texas has materially aided us in the conclusion that the partition in this case is authorized, which, briefly stated, is as follows:

On February 5, 1840 (Acts 1840, p. 71), our first partition statutes were enacted. Section 1 of that act authorized part owners of estates of inheritance to partition, and part owners of life estates or of estates for a term of years were also authorized to partition with those holding estates of inheritance or of freehold, provided such partition was not prejudicial to the estates in reversion or remainder. Sections 2 and 3 of that act provided a statutory mode or method of partition. Paschal's Digest, art. 4707. These statutes were not restrictive, as partition upon equitable principles was then recognized by our courts without statutory aid. Payne v. Benham, 16 Tex. 368; Grassmeyer v. Beeson, 18 Tex. 769, 70 Am. Dec. 309. On February 5, 1858, sections 2 and 3 of the act of 1840 were repealed, leaving the courts to enforce partition upon the principles of equity or other methods then known to the law. In 1879 the codifiers rewrote the entire partition laws, at which time the original article 6096, supra, was enacted and has since been the law, except the 1917 amendment, supra, which merely added the right to partition minerals by name. The 1879 statutes also provided a statutory mode or method of partition; but they, like the former acts, are not restrictive, and resort may still be had to a partition upon equitable principles without the aid of these statutes. Tieman v. Baker, 63 Tex. 641; Keener v. Moss, 66 Tex. 188, 18 S. W. 447.

It will be noted from this history that statutory partition, limited at first to estates of inheritance, life estates, and estates for a term of years, is now only limited that the partitioners be joint owners of the real estate, "or of any interest therein." Our courts have construed these statutes in their broadest sense. In Williamson v. McElroy (Tex. Civ. App.) 155 S. W. 1000, the court said:

"The right of a joint owner or claimant of any estate to compel a partition thereof between the other joint owners or claimants `is recognized by our statute in the broadest terms.' Article 3606, Rev. Stats. 1895; article 6096, Rev. Stats. 1911; Morris v. Morris, 45 Tex. Civ. App. 60, 99 S. W. 872."

A definition of partition by the Supreme Court has also materially aided us in the conclusion that partition is authorized in this case. In the case of Hudgins v. Sansom, 72 Tex. 229, 10 S. W. 104, the Supreme Court said:

"`Partition' * * * means the act or proceeding through which two or more co-owners cause the thing to be partitioned to be divided into as many shares as there are owners, and which vests in each of such persons a specific part with the right to possess it free from a like right in other persons who before partition had an equal right to possess."

In the case of Tieman v. Baker, 63 Tex. 643, the Supreme Court held:

"The very purpose of partition is to enable one, holding or entitled to hold with others an undivided possession, to sever that possession and right, and thenceforth to hold an exclusive possession of a specific part of the property, which before partition all the co-owners had the equal right to possess."

With these preliminary statements of the history of statutory partition, and of the broad construction placed upon the right to partition under these statutes by our courts, and of the definition of partition in our minds, we proceed to a discussion of the questions raised by appellants.

It is first contended that the parties here are not joint owners of such a separate and distinct estate in the land that the statute will authorize the partition. Aside from the specific right to partition minerals given by the 1917 amendment, the statute in question requires three necessary requisites to a forced partition: First, the partitioners must be joint owners; second, of the land, or of any interest therein; and, third, the party seeking the partition must have an equal right to possession with the other joint owners. 3 Words and Phrases, Second Series, p. 845, gives the following definitions of the word "owner":

"`To own' is defined `to hold as property; to have a legal or rightful title to; to have; to possess.' And an `owner' is `one who owns; a rightful proprietor.' An `owner' is not necessarily one owning the fee simple or one having in the property the highest estate it will admit of. One having a lesser estate may be an owner, and, indeed, there may be different estates in the same property vested in different persons, and each be an owner thereof. United States v. Ninety-Nine Diamonds, 139 Fed. 961, 971, 72 C. C. A. 9, 2 L. R. A. (N. S.) 185 (quoting Baltimore & O. R. Co. v. Walker, 16 N. E. 475, 480, 45 Ohio St. 577, 585); Jones v. State, 70 N. E. 952, 954, 70 Ohio St. 36, 1 Ann. Cas. 618 (quoting and adopting definition in Baltimore & O. R. Co. v. Walker, 16 N. E. 475, 45 Ohio St. 577).

"The word `owner,' as applied to land, is descriptive of various rights to and interests in land. As titles and rights to real property vary from the absolute and unqualified fee simple to...

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