Robertson Consol. Land Co. v. Paull
| Decision Date | 17 December 1907 |
| Parties | ROBERTSON CONSOL. LAND CO. v. PAULL et al. |
| Court | West Virginia Supreme Court |
Submitted June 12, 1907.
Syllabus by the Court.
R.C.L Co., being the owner of one undivided third interest in and to "all the coal, gases, salt water, oil, and minerals of every kind and description in, upon, and under a certain tract of land supposed to contain 329 acres," together with rights of way and mining rights, filed its bill for partition of said interests against P., trustee for himself and C., the owners of the other two-thirds undivided interests of the said coal, gases, etc., in said tract of land, with rights of way and mining rights, etc., none of said parties having any interest in the surface or soil of said property. Held, plaintiff's interest is not such an estate as can be the subject for a suit in partition.
Where a decree for partition is entered on the 23d day of a month in a cause where the defendants have not appeared, and the report of the commissioners appointed to make partition shows that they went upon the premises and viewed, surveyed, and partitioned the same on the 25th day of the same month, and the report is silent as to any notice of the partition being given to the defendants, it will be presumed that such notice was not given.
Such undivided interests can only be partitioned by a sale thereof and a division of the proceeds among the parties entitled thereto.
Appeal from Circuit Court, Logan County.
Bill by the Robertson Consolidated Land Company against J. F. Paull and others. Decree for plaintiff, and defendants appeal. Reversed and remanded.
Simms & Enslow, for appellants.
Lilly & Shrewsbury and Campbell, Heffley & Davis, for appellee.
The Robertson Consolidated Land Company, a corporation, J. F Paull, trustee for himself, and R. P. Chew, were each the owner of an undivided one-third interest in and to all the coal, gases, salt water, oil, and minerals of every kind and description in, upon, and under a certain tract or parcel of land lying in Logan county on the branch where James Lawson formerly resided, supposed to contain 329 acres. The Robertson Consolidated Land Company filed its bill in the circuit court of Logan county against J. F. Paull, in his own right and as trustee, and R. P. Chew, praying for a partition in kind of said property, and that the plaintiff's undivided one-third interest be laid off and assigned to it in kind adjoining other lands owned by it, if the same was susceptible of partition in kind, and, if not so divisible, that it be sold and the proceeds divided among the parties thereto. Process was duly served upon the defendants but they made no appearance. On the 23d of October, 1906, the cause was brought on to be heard upon the process duly served, the bill taken for confessed at the rules as to all the defendants who, still failing to answer, plead, or demur, or otherwise appear in defense, the confession entered at rules was confirmed, and the court proceeded to decree a partition of the said interests and appointed John B. Hudson, a civil engineer, J. F. Alridge, and Harry Thompson, commissioners to make partition of the real estate described in the bill, and that they should make such partition and report to the same term of the court, accompanying their report with a description of the proper metes and bounds of the respective parcels allotted to the parties entitled to share in the partition, with all the evidence which might be taken before them pertaining to the matter of said partition, and plat and deeds used, read, and made in connection therewith, and that if the said commissioners should determine that the said property was not susceptible of partition they should so report to the court, setting forth the facts upon which they based their conclusion. On the same day, October 23, 1906, the commissioners were qualified by taking the oath to impartially make said partition, and on the 27th of October, 1906, made their report together with a plat and description of the several parcels allotted to the persons entitled thereto, which was filed on the 29th day of October, 1906, and a decree was then entered confirming the same and describing the several parcels so to be held by the parties in severalty respectively by metes and bounds. The defendants, J. F. Paull, J. F. Paull, trustee, and R. P. Chew, gave notice to the plaintiff, the Robertson Consolidated Land Company, that on January 29, 1907, they would move the said circuit court of Logan county, in accordance with section 5, c. 134, of the Code, to reverse and set aside the decrees in the cause entered upon the bill taken for confessed without appearance on the part of the defendants of either of them for the reasons set forth in the notice. The motion on the notice was heard by consent on the 5th day of February, 1907, and the court overruled the motion, and refused to set aside the said decrees. From which decrees of October 23 and 29, 1906, and February 5, 1907, the defendants appealed, and say that the court erred in decreeing a partition in kind of the property, as it was not of such a nature as was susceptible of division; that it was error to decree partition without the commissioners having given notice to all parties of the time of going upon said property that they might have appeared to protect their interests.
It appears from the bill and title papers filed therewith that none of the parties to this suit have any interest in the surface or soil of said property,...
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