Memphis Stone & Gravel Co. v. Archer

• Decision Date: 03 January 1925
• Docket Number: 23986
• Citation: 137 Miss. 558,102 So. 390
• Parties: MEMPHIS STONE & GRAVEL CO. et al. v. ARCHER. [*]
• Court: Mississippi Supreme Court

102 So. 390

137 Miss. 558

MEMPHIS STONE & GRAVEL CO. et al. v. ARCHER. ^[*]

No. 23986

Supreme Court of Mississippi

January 3, 1925

Division B

Suggestion of Error overruled Jan. 26, 1925.

APPEAL from chancery court of Tishomingo county, HON. A. J MCINTYRE, Chancellor.

Suit by Mrs. Johnnie Archer against the Memphis Stone & Gravel Company and another. From decree for plaintiff, defendants appeal, and plaintiff brings cross-appeal. Affirmed both on direct and cross appeal, and remanded.

See, also, 82 So. 315.

Decree affirmed both on direct and cross appeal, and cause remanded.

J. M. Boone and Ewing, King & King, for appellants.

It seems that the defendants herein have acted at all times in absolutely good faith; this is not questioned, and that their position before this court is one which in equity should stand them well. It is admitted that they honestly believe themselves the holders of the fee title to the property there was nothing to put them on notice of any claims; they have mined less than one-fourth of the gravel; they own a two-thirds undivided interest. The law seems to be well settled by the best reasoned cases, and by the vast majority of authority, and especially by the courts of Mississippi, that where one co-tenant, believing himself to be the owner of the entire estate, uses the entire estate, or mines minerals on the estate, he is liable at the suit of the co-tenant for the proportionate share of the profits of his co-tenant, but the co-tenant so suing or so desiring, asking or demanding an accounting must be charged with the entire expenses of the mining or use of the property, and is chargeable with these expenses unless it appears to the court that the use of the property by the co-tenant in possession is not in accord with good husbandry; is wasteful, or is for the purpose of hindrance or embarrassment to the co-tenant out of possession. We do not believe that the expenses are to be determined by what is generally customary among the trade for services and work of a similar nature. The actual authority in good faith is the criterion. The correct rule seems to be stated in section 30, R. C. L. "Co-tenancy." Ruffners v. Lewis, 7 Leigh (Va.) 720, 30 Am. Dec. 513; Early v. Friend, 16 Grat. 21, 78 Am. Dec. 649; Graham v. Pierce, 19 Grat. (Va.) 28, 100 Am. Dec. 658; Williamson v. Jones, 43 W.Va. 562, 27 S.E. 411, 64 Am. St. Rep. 891, 38 L. R. A. 694; Notes: 78 Am. Dec. 668; 65 Am. St. Rep. 768; 91 Am. St. Rep. 876-78; 28 L. R. A. 839, 852; 29 L. R. A. (N. S.) 233; 18 Ann. Cas. 1088; Keys v. Pittsburgh W. Coal Co., 58 Ohio 246, 50 N.E. 911; 65 Am. St. Rep. 754; 41 L. R. A. 681; Fulmer's App. 128 Penn. 24, 18 A. 493, 15 Am. St. Rep. 662; Cain v. Cain, 53 S.C. 350, 31 S.E. 278, 69 Am. St. Rep. 853; Chancy v. Ricks, 187 Ill. 171, 58 N.E. 234.

Again, the one-third interest of Miss Archer has not been touched. In the absence of an express promise of a liquidated sum, a co-tenant is obliged to account only for a proportionate share of the net profits. Oil & Gas Co. v. Transit Co., 172 Pa. 451, 51 Am. St. Rep. 746; Sandy River Cannel Coal Co. v. White House Coal Co., 125 Ky. 285, 101 S.W. 319; Keys v. Pittsburgh W. Coal Co., supra; Bailey v. Chicago, etc., Ry., 19 L. R. A. 653. The tenant in common in possession of property is, in the absence of an agreement providing otherwise, liable only for what he received, not what he takes. Adams v. Bristol, 126 A.D. 660; McNeely v. South Penn. Oil Co., 58 W.Va. 438, 52 S.W. 480; Hannah v. Carver, 121 Ind. 278, 23 N.E. 93; Sweeney v. Hanley, 126 F. 27, 27 Cyc. 768-69; McCord v. Oakland Quicksilver Min. Co., 64 Cal. 134, 27 P. 863, 49 Am. St. Rep. 686; Pico v. Columbet, 12 Cal. 414, 73 Am. Dec. 550; Paul v. Cragnaz, 25 Nev. 293, 59 P. 857, 60 P. 983; Job v. Patton, L. R. 20 Eq. 84; 44 L. J., ch. 262; 32 L. T. Rep. (N. S.) 110; 23 Wkly. Rep. 588; Clegg v. Clegg, 3 Giffard 322; 7 Jur. (N. S.) 92; 31 L. J., ch. 153; 5 L. T. Rep. (N. S.) 441; 10 Wkly. Rep. 75; 66 Eng. Reprint 433; Cain v. Cain, supra; Thornton on the Law of Oil and Gas (3 Ed.), 470.

Royalty is a mere matter of contract, and as there is no contract in this case, express or implied, certainly trying to measure damages on a basis of royalty is entirely out of order. Royalty is a creature of lease, where none of the elements of a co-tenancy exist and where there is no question of the liability of one co-tenant using under a bona-fide belief of actual ownership. Kissick v. Bolton, 112 N.W. 95, 130 Ia. 650; 1 Ex. Div. 310; Hubenthal v. Kennedy, 76 Ia. 707, 39 N.W. 694. Can the widest stretch of the imagination place upon an honest co-tenant believing in actual ownership of the whole, a contractual liability only used when there is an express lease or contract?

In this case, it has been admitted and is conclusively shown that the Memphis Stone and Gravel Company was on this land believing themselves to be the actual owners and in full possession of the property with absolute and an unassailable fee-simple title. The law is, as we have said before under the conditions as enumerated, that the tenant who is not in possession but who is not excluded is entitled to its proportionate share of the rent and profits, or if the court take not this basis then the tenant not in possession but not excluded may as a measure of damages, have the value of her proportionate share of that part of the gravel removed as it was in situ; that is in the ground before it was ever touched for commercial or other purposes.

The Memphis Stone and Gravel Company never took one thing from the Oldham pit until it was purchased by it from Oldham, April 30, 1916. We respectfully submit that up until the time of the sale by Oldham of his interest in this property, he alone is liable to the complainant if there be any liability for there was no trespass, and on whatever basis the court determines said liability to exist up until the time, April 30, 1916. Certainly the Memphis Stone and Gravel Company, co-tenant, had a right to mine this property. Tiffany on Real Property (2 Ed.), 991-92; Alderson v. Cole Land Co., 81 W.Va. 411, 94 S.E. 716; Freeman on Co-Tenancy, sec. 249-A. "Where a tenant in common received rent, income or profits from a third person in excess of his share in good faith, he is generally held liable to account therefor only for what he has actually received more than his just share or proportion, and not for the rental value of the property or what he might have received." Renshaw v. Tullahoma First National Bank, 38 Cyc. 70, Ch. App. 1900, 63 S.W. 194; McCall v. Barker, 115 Ala. 543; Howard v. Throckmorton, 59 Cal. 79; Barnum v. Landon, 25 Conn. 137; Denning v. Denning, 165 Mass. 230; Minor v. Bristol, 126 N.Y. App. 660; McGahan v. National Bank, 156 U.S. 218, 39 L.Ed. 403; Dangerfield v. Colwell, 151 F. 554; Henderson v. Eason, 17 Q. B. 701.

An injunction will not be granted preventing a tenant in common from cutting timber on the premises, since the tenant in common has the right to enjoy the estate and to cut timber and use and dispose of it at least to the extent corresponding to his share of the estate. Hihn v. Peck, 18 Cal. 640. In an account between tenants in common of land used for getting timber therefrom, the value of the timber while growing is the true rule to be taken of valuation. Walling v. Burroughs, 43 N.C. 60; Dodd v. Watson, 57 N.C. 48, 72 Am. Dec. 577; Clowser v. Joplin Mining Co., F. Cases No. 2908-A (4 Dillon 469 note); Darden v. Cooper, 52 N.C. 210; Gillum v. R. R. Co., 5 Tex. Civ. App. 338, 23 S.W. 717; Hatton v. Lumber Co., 57 Tex. Civ. App. 478, 123 S.W. 163.

A co-tenant in possession with a righteous belief of ownership of the entirety, not excluding co-tenants nor denying them in any respect their rights, but acting in good faith and enjoying no more than his proportionate share of the property is liable to a discovered co-tenant only for the proportionate part of the net rents and profits received or in the case of removal of timber or minerals the net value in proportion to interest or the proportionate value of the timber standing or the mineral in the ground. Bennett v. Bennett, 84 Miss. 493, 36 So. 452; Iler v. Routh, 3 How. 276.

Lester G. Fant, for appellants.

I. Authorities: Sweatman v. Dean, 86 Miss. 641; Smith v. Stansil, 93 Miss. 69; Shorter v. Lesser, 98 Miss. 706; Cox v. Kyle, 75 Miss. 667; Gilleyan v. Martine, 73 Miss. 695; Leatherbury v. McInnis, 85 Miss. 160; Bennett v. Bennett, 84 Miss. 493; Watkins v. Williams, 84 Miss. 392; Paddock v. Shields, 57 Miss. 340; Medford v. Frazier, 58 Miss. 241; Eaton v. Broderick, 101 Miss. 26; Dickerson v. Weeks, 106 Miss. 804; Hauer v. Davidson, 113 Miss. 896.

II. The first proposition announced by the above authorities is that there must be partition in kind unless it conclusively appears that partition in kind is impossible, and a decree for partition is always interlocutory and can be modified, changed, annulled or handled in any way to affect equal and absolute justice to the parties by the chancellor until final decree confirming the report of commissioner whether a partition or sale, has been entered on the minutes after the term of court has adjourned, or entered in vacation. Then it can be appealed, and only then.

III. One tenant in common cannot be held to account to the other co-tenant unless he has mined more than his proportionate share. Leatherbury v. McInnis, supra; Bennett v. Bennett, supra; Walker v. Williams, 84 Miss. 392. In compiling these authorities great care has been taken to see if our supreme court in Mississippi has ever made any contrary holdings, and find the case to be that these authorities are the law in Mississippi now, and have never been modified either by statute or the supreme court.

Boone &amp Worsham, for...