Terteling Bros., Inc. v. Bennett

• Decision Date: 24 February 1956
• Citation: 287 S.W.2d 607
• Parties: TERTELING BROTHERS, Incorporated, Appellant, v. C. R. BENNETT, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 607

287 S.W.2d 607

TERTELING BROTHERS, Incorporated, Appellant, v. C. R. BENNETT, Appellee.

Court of Appeals of Kentucky.

Feb. 24, 1956.

Woodward, Bartlett & Catinna, Hartford, for appellant.

Otto C. Martin, Hartford, for appellee.

MOREMEN, Judge.

Appellant, Terteling Brothers Incorporated, is the owner in fee simple of the surface and of an undivided one-half interest in oil, gas and other minerals lying under the surface of a tract of land situate in Ohio County. Appellee, C. R. Bennett, is the owner of the remaining undivided one-half interest in the oil, gas and minerals under the same land.

Appellant, under KRS 389.020 (once, Sec. 490 of the Civil Code of Practice) by petition to the circuit court sought a judgment ordering sale of the undivided interest in the oil, gas and minerals and a division of the proceeds of the sale by the joint owners. A demurrer was sustained to the petition, appellant declined to plead further, and judgment was entered dismissing the petition.

The question presented on this appeal is whether the owner of the surface and one-half undivided interest in the minerals is entitled, under the statute, to a sale of all the minerals under the tract and a division between the joint owners of those minerals.

Since this question has caused considerable difficulty in cases that have appeared before this court, a short sketch of the historical rights granted by the courts in similar situations must be given.

We are told that, under the early common law of England, only co-parceners were accorded the right to partition their land, perhaps because in those times feudal military rights were paramount and the law was not concerned so much with the individual rights of property owners as it was with the ultimate sovereign title to all land. Being holders under the military system, co-parceners were given this right of severance because each parcel of ground carried with it the duty to render military service. By the statutes of 31 and 32, Henry VIII (1539-40), however, the remedy was extended to joint tenants, tenants in common of estates of inheritance, of freehold, and for years. See 12 A.L.R. 644; American Law of Property, 6.21; 40 Am.Jur., Partition, Sec. 106.

In this country the extended rights seem to have been also largely the result of statutory enactment, as witness KRS 389.020, under which it has been repeatedly held that in order to confer jurisdiction on a court to partition or to order a sale and division of the proceeds because of indivisibility, all that needs to be shown is a vested possessory estate in land which is jointly held in any manner.

The recent attitude of the courts is defined in Shelby v. Shelby, 192 Ky. 304, 233 S.W. 726, 729, where it is said:

'So strongly has the right of one joint owner to a partition of the jointly owned property become entrenched in the law that the right has become a favored one with the courts, and they are reluctant to deny it, and will not do so, unless there is some impelling necessity therefor.'

The application of the above rule is very simple in the ordinary case where the character of the estate held is readily ascertainable, but, in cases such as we have here, complications arise as the result of the almost fictional quality of the estates conveyed. At an early date (1887) in Kincaid v. McGowan, 88 Ky. 91, 4 S.W. 802, 804, 13 L.R.A. 289, it was held:

'An estate in fee in land carries with it all metals and minerals thereunder, unless the metals and minerals are excepted in the conveyance, or 'have before been severed in ownership, and the right thereto vested in some other person.' The surface and the metals and minerals may be a distinct property from each other by separate conveyances from individuals. See Bing.Real Prop. 288.

'Minerals in place are land. They are subject to conveyance. The surface right may be in one man, and the mineral right in another. Both, in such a case, are land-owners; they own separate and distinct corporeal hereditaments. See Caldwell v. Fulton, 31 Pa. 475. The owner of land may convey a surface estate in fee in it, and reserve to himself an estate in fee in the minerals, or any particular species of them; in which case the vendee holds a distinct and separate estate in the surface or soil, and the vendor holds a distinct and separate estate in the minerals. By this severance each estate is subject to the laws of descent, of devise, or conveyance.'

Obviously, the surface and the minerals are not distinct physical properties so long as they remain fused, but the pressure of commercial expediency has forced the invention of this device which in turn has given rise to many problems. Hard physical realities are difficult to dissect even with the sharp scalpel of abstract logic. Particularly is this true in connection with real estate law under a system of jurisprudence where traditionally the landowner--and this means the surface owner who also owns above and below--received special protection of the law.

This concern for the surface landowner over the possessors of other kinds of property, appears in the leading case of Ball v. Clark, 150 Ky. 383, 150 S.W. 359, 361, relied upon by appellee. In that case, Ball and his children owned jointly a 100 acre tract of land. Ball conveyed to Clark his undivided one-half interest in the minerals underlying the surface. He also conveyed certain surface rights because the conveyance anticipated a mining operation, and Clark was granted the right to build roads, to store and handle all minerals produced, and build certain buildings; included was the right to remove timber which was under 12 inches in diameter. The trial court granted the partition sought by Clark but, on appeal, this court held the judgment to be improper and although the opinion recognized the rule that after minerals are severed they become a separate estate and may be the subject of partition or, in the case of indivisibility, of sale under the statute, still it would not permit an act which would imperil the surface owner's interest in the property, saying:

'It will be noted at once that...