Musgrove v. Aldridge

• Decision Date: 28 October 1920
• Docket Number: 6 Div. 29
• Citation: 87 So. 803,205 Ala. 189
• Parties: MUSGROVE v. ALDRIDGE.
• Court: Alabama Supreme Court

87 So. 803

205 Ala. 189

MUSGROVE v. ALDRIDGE.

6 Div. 29

Supreme Court of Alabama

October 28, 1920

Rehearing Denied Jan. 13, 1921

Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Bill by A.B. Aldridge against L.B. Musgrove for the sale of certain mineral interest in land among joint owners or tenants in common. From a decree for complainant, respondent appeals. Affirmed.

Lacy Lacy & Shepherd, of Jasper, for appellant.

A.F Fite, of Jasper, for appellee.

BROWN J.

This bill is filed by the appellee against the appellant for the sale of "all the coal, iron, and other minerals in under, and upon [the lands described in the bill], together with all the necessary and usual mining rights."

After averring that the parties are joint owners or tenants in common of said mineral interests or mining rights, each owning an undivided one-half interest therein, the bill contains the further averment:

"That said land cannot be equitably partitioned or divided among the said tenants in common or joint owners without a sale thereof."

The bill was demurred to on the ground, among others, that the averment quoted is a mere conclusion of the pleader, and is insufficient in the absence of an averment of facts to support the conclusion. The demurrer was overruled, and the appellant now insists that this was error, citing in support of this contention Keaton v. Terry, 93 Ala. 85, 9 So. 524.

The utterance in the case cited that is supposed to sustain appellant's contention here is, that--

"Upon a bill filed to sell lands for distribution, a mere conclusion of the pleader that the same cannot be 'fairly and equally' partitioned is subject to demurrer, unless the description of the property given, or the facts in relation thereto averred, are such as to show prima facie that the conclusion is fairly inferable from the facts averred."

An examination of the case cited shows that the question was not there presented on demurrer, and that the quoted statement was used arguendo and is mere dictum. In cases subsequently decided by this court, where the question was directly presented, it was ruled that the averment that the land cannot be equitably divided without a sale thereof is an averment of fact, conforming to the language of the statute and is sufficient. Smith v. Witcher, 180 Ala. 102, 60 So. 391; Carson v. Sleigh, 201 Ala. 373, 78 So. 229; Wheat et al. v. Wheat, 190 Ala. 461, 67 So. 417.

Our conclusion, therefore, is that the demurrers to the bill were properly overruled.

The mere fact that the property involved consists of undeveloped coal ore and mineral rights is not, in and of itself, sufficient to destroy the right of a joint owner to a partition in kind; the general rule being that all mining property capable of being held in cotenancy is subject to this right, regardless of hardships or inconveniences incident to the partition in kind. Robbins v. Penn. Gas Coal Co., 28 Pa.Co.Ct.R. 49; note 15 Ann.Cas. 778; 18 R.C.L. 1250, par. 146; Hall v. Vernon, 47 W.Va. 295, 34 S.E. 764, 49 L.R.A. 464, 81 Am.St.Rep. 791.

Yet in such cases involving property of this character, where the quantity and value of the mineral cannot be readily ascertained, there is such appreciable element of uncertainty attending partition in kind as will warrant a court of equity in decreeing a sale for division on less strict proof than in cases involving fee-simple estates or surface rights, when the value of the property is more easily ascertained. Such is the effect of the holding in Sheffield Coal & Iron Co. v. Ala. Fuel & Iron Co., 185 Ala. 50, 64 So. 67, and Hall v. Vernon, supra.

The...