Steele v. McKinney, 15919
| Decision Date | 02 March 1984 |
| Docket Number | No. 15919,15919 |
| Citation | 313 S.E.2d 451,173 W.Va. 174 |
| Parties | Ralph STEELE, et al. v. Mary McKINNEY, et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
"To justify setting aside an allotment made in a partition suit by commissioners and confirmed by the trial court, it must be shown that the allotment has been made on wrong principles, or by a clear and decided preponderance of the evidence that a grossly unequal allotment has been made." Syllabus Point 2, Feamster v. Feamster, 123 W.Va. 353, 15 S.E.2d 159 (1941).
J. Strother Crockett, Welch, for appellant.
C. Thomas Seay, Wade T. Watson, Rudolph J. Murensky, II, Welch, for appellee.
This is an appeal from an order entered in a partition suit in the Circuit Court of McDowell County. The appellants contend that the circuit court erred in granting partition of the subject property without hearing their objections to the boundary line used. We agree that the appellants are entitled to a hearing and we remand the case with directions that such hearing be conducted.
The appellants in this proceeding were the plaintiffs below. In 1979 they brought suit to partition a tract of land containing sixty eight and one-half acres located on Burke Mountain in McDowell County. All of the original parties to the partition suit were heirs of Nancy Lusk, who died intestate in 1933 as the sole owner of the subject property. 1
Originally the parties to the suit agreed that the property would be sold and the proceeds divided according to the various interests of the parties. Those interests were not in dispute. Before the property sale took place, however, several of the defendants filed an amended answer and requested that the property be divided in kind.
An agreement was reached among the parties to have a survey done and boundary line drawn by John Ramey, a registered civil engineer. Mr. Ramey was to divide the land as nearly as possible giving a 9/20 undivided interest to the majority of defendants and an 11/20 undivided interest to the plaintiffs and the remaining defendants.
The plaintiffs' attorney accompanied Mr. Ramey to the property and instructed him to draw a boundary line on the ratio of eleven to nine, placing two of the residences on the property within the boundaries set for the plaintiffs. 2 Mr. Ramey surveyed the land and drew the requested boundary line. His fee for the survey, $3,586.50, was shared equally by the parties.
The appropriate deeds were prepared and the property was about to be conveyed when the plaintiffs discovered that the boundary line drawn by Mr. Ramey did not place the two houses within their allotment. At this point in the suit the original plaintiffs conveyed their interest in the property to Ralph Steele, Ransom Mitchem and Everett Sizemore who were then substituted as parties plaintiff.
On December 16, 1982, the plaintiffs filed an amended complaint alleging that the boundary line drawn by John Ramey was not a fair and reasonable division of the property. Specifically, the plaintiffs asserted that the line was drawn contrary to their instructions to place two of the houses located on the property on their side of the boundary line; that the line gave the vast majority of timber on the land to the defendants; and that although the survey accurately divided the land by acreage, the land given to the plaintiffs was worth less than that given to the defendants.
The plaintiffs requested a hearing on the various issues raised in their amended complaint, and in particular, on the question of whether the Ramey survey constituted a fair and reasonable partition of the subject property. In the partition order entered on the same day the circuit court found that the boundary line drawn pursuant to the survey was a fair and reasonable division of the property. The court also held that the survey substantially conformed to the parties' agreement to divide the property and...
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