Smith et al. v. Greene et al.
| Decision Date | 25 May 1915 |
| Citation | 76 W.Va. 276 |
| Parties | Smith et al. v. Greene et al. |
| Court | West Virginia Supreme Court |
Partition Right Affirmative Showing Necessity.
The right to a partition of real estate in kind, as required at the common law, can not be denied, where demanded, unless it affirmatively appears upon the record that such partition can not conveniently be made and that the interests of the co-owners will be promoted by a sale of the property.
Appeal from Circuit Court, Harrison County.
Suit by John B. Smith and others against Charles Greene and others. From the decree, defendants Nannie Fisher and others appeal.
Reversed and remanded.
F. O. Sutton, for appellants.
La Fayette C. Crile, for appellees.
As owners of one-eighth of the coal within a tract of 18.74 acres of land, plaintiffs sought partition against defendants as owners of the other interests, six of them an eighth each and four of them a thirty-second each. From a decree directing partition by sale and distribution of the proceeds, five defendants have appealed. The propriety of this mode of partition is the sole question presented for review.
The bill avers the title and interests of the parties, that the coal is not susceptible of partition in kind, and prays for the relief granted by the decree. Plaintiffs also allege their ownership of the coal under adjoining lands, that they are engaged in mining the coal thereunder, and that the removal thereof will cause a material depreciation in the value of the coal under the 18.74 acres, assigning as a reason therefor lack of adaptability for the economical mining and shipping facilities except through plaintiffs' mines on lands exclusively owned by them; and, further, that they have been unable to effect an agreement with defendants as to the coal jointly owned by them, npon any basis alike profitable to all such owners.
Defendants concede plaintiffs' interest in the coal involved and their right to a partition, and raise no question as to title, quantity or proportional shares averred. They also admit plaintiffs' ownership of adjoining coal lands, and their mining operations thereon. While some of the defendants concede it would be to their mutual advantage to operate the 18 acres of coal in conjunction with plaintiffs or on a royalty basis, they aver an unwillingness so to do on the part of others jointly interested with them; and all the defendants agree that, by reason of the proximity of the coal to an available profitable local market, it is prospectively more valuable for the purpose of supplying that market than for operation in the manner urged by plaintiffs. They therefore resist a sale, and demand a partition in kind, the four owning an eighth each asking that their shares be allotted to them in one body, and those owning a thirty-second each that their one-eighth be allotted to them in one parcel.
Without proof or further pleading, the court, by interlocutory order, properly adjudicated the respective shares and interests of the parties, and appointed commissioners, with directions to make partition in kind among the several claimants pursuant to such order, if partition in kind be found convenient and equitable, and, if so, to consolidate the interests of the defendants as requested by them. To this end, the commissioners were also directed to consider "such relevant and competent testimony touching the partition or sale of said coal as may be adduced by any party in interest", such evidence to be returned with their report.
In their report, the commissioners say they went upon the land, "at which time all parties were represented either in person or by their attorneys, and after hearing all parties to said action, and all parties being willing, and without prejudice or injury to the interests of any of the parties hereto, we did proceed to partition said coal" in kind, assigning to plaintiffs lot number 1, containing 2.25 acres, next to the coal owned by them on adjoining land; lot number 2, containing 2.35 acres, to the owners of the four thirty-seconds; lot number 3, containing 2.35 acres, to Charles H. Greene, owner of a one-eighth interest; and lot number 4, containing 11.8 acres, to the other defendants as their five eighths interest. They conclude by saying: "We believe this partition to be to the best interest of all parties, and we find that partition in kind can be conveniently and equitably made as above set forth".
To this report none of the defendants objected. But plaintiffs, denying the statement therein as to assent by them, excepted to the report on the ground that "partition of said coal in kind is inequitable and can not be conveniently had". This exception, the court, by the decree appealed from, sustained, and, holding the coal not susceptible of partition in kind, ordered a sale thereof. Hence, the inquiry whether the court pursued the proper method of effecting partition among the several joint tenants of the coal.
At common law, no sale was permissible in a suit of this character; and the statute applicable, §3, ch. 79, Oode, authorizes a sale only where the interests of the owners will be promoted thereby and where partition in kind can not conveniently be made. The law favors actual partition, and but for the statute none other can be decreed. The common owners can not be subjected to a compulsory sale of their tangible proporty unless their interests manifestly require it, or, differently stated, unless actual division would be plainly injurious. Roberts v. Coleman, 37 W. Va. 144; Herold v.. Craig, 59 W. Va. 353; Dall v. Mining Co., 3 Nev. 531. "The statute is an innovation upon the fundamental principles of the common law and of American jurisprudence, and can not become a license to the courts to take from the citizen, for light or trivial causes, his freehold on payment of compensation, though full and adequate". Croston v. Male, 56 W. Va. 205.
As prerequisite to a dercee of sale, the court must ascertain two things: first, that partition can not be conveniently made, and, second, that the interests of the parties will be promoted by. a sale of the property. Roberts v. Coleman, supra; Croston v. Male, supra. Prima facie, each party is entitled to actual partition; and it is incumbent on him who seeks a sale to show that his. advantage will be promoted by it, and that no loss will be worked to any other party. Davis v. Davis, 37 N. C. 607; Mitchell v. Cline, 84 Cal. 409. There must be both averment and proof of facts sufficient to sustain that burden; arid there must be an affirmative showing of the propriety of a sale. Roberts v. Coleman, supra; Oneal v. Stimson, 61 W. Va. 552; Conrad v. Crouch, 63 W. Va 385; Ryan v. Egan, 26 Utah 241; Davis v....
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