Trimble v. Kentucky River Coal Corporation

• Decision Date: 17 October 1930
• Citation: 235 Ky. 301
• Court: United States State Supreme Court — District of Kentucky
• Parties: Trimble et al. v. Kentucky River Coal Corporation et al.

235 Ky. 301

Trimble et al. v. Kentucky River Coal Corporation et al.

Court of Appeals of Kentucky.

Decided May 30, 1930.

As Modified on Denial of Rehearing, October 17, 1930.

1. Partition. — Property held properly sold for division, where parties owned mineral rights and it was practically impossible to make equitable division in kind.

2. Licenses. — Mere right to go upon property, and by suitable operations to take designated substances therefrom, constitutes "profit a prendre."

3. Mines and Minerals. — Purchaser of mineral rights acquires, not only right to go upon property and take designated substances, but gets by its purchase ownership of substances themselves.

4. Dower. — Wife on death of husband owning mineral rights was at once invested with dower therein (Gen. St. 1883, c. 52, art. 4, sec. 2).

5. Dower. — Widow's dower being vested estate and she being in possession as much as adverse claimants, her rights could not be lost save by adverse possession for statutory period.

6. Dower. — Doctrine of laches has little, if any, application where dower right has become vested estate.

7. Equity. — "Laches" is not simply delay, but delay that works injury.

8. Dower. — Widow's vested dower right held not barred by laches, though not asserted until 43 years after her husband's death.

Evidence disclosed that parties claiming dower right were barred by laches, knew that widow was living and had claim of dower against the property, and that when they bought an interest therein, precaution was taken to have the widow join in the conveyance, and it also appearing that such parties were no worse off by widow's assertion of dower at this time than they would have been had she asserted it sooner.

9. Courts. — Court of Appeals in handing down opinions is bound only by what court has to say in reaching its conclusion and is not bound by its remarks in opinion.

10. Dower. — Widow held entitled to dower in unopened mines on deceased husband's property.

11. Dower. — Widow claiming dower in property conveyed to her and the children of her husband, held not entitled to attack deed in her action which was founded upon it.

12. Dower. — Widow held not entitled to claim dower in property where deed by which it was conveyed to her and her children had been of record many years and her adversaries had acquired rights in reliance upon it.

Widow, seeking to establish dower in property wherein she claimed she had paid part of the purchase money when the property was purchased by her deceased husband, nowhere pleaded that her adversaries took their interests with notice of the trust she sought to establish, and hence they were required to be held to be innocent purchasers, purchasing in reliance upon the verity of the records.

13. Dower. — Widow held entitled to dower, but no more, where she paid part of purchase money for land purchased by deceased husband (Ky. Stats., sec. 2353).

14. Dower. — Widow, entitled to dower in one-fifth thereof of property, waived right as to part by joining in conveyance by daughter, who owned one-fifth of the remainder.

15. Dower. — On division of property in which widow has dower interest, her rights as regards expectancy are determined by age when property is sold.

The court directed that the value of her interest should be determined according to mortality table, and fixed her age at date of judgment as age that should be used in making estimate. The widow contended that her age when her husband died should be taken.

16. Appeal and Error. — On division of property, slight error respecting age to be taken in determining life expectancy of widow having dower right held, not reversible error, the trial court being directed to modify the judgment.

Appeal from Perry Circuit Court.

J.W. CRAFT for appellants.

P.T. WHEELER for appelle Kentucky River Coal Corporation.

W.C. EVERSOLE for appellee Eversole.

JOHN P. CUSICK, Warning Order Attorney and J.E. JOHNSON, JR., for appellee Morrison.

OPINION OF THE COURT BY DRURY, COMMISSIONER.

Affirming.

The parties to this litigation are the owners of the coal, mineral, oil, and gasses, and certain mining privileges, in, under, and appurtenant to a tract of land, containing about 1,500 acres, situated in Perry county, which the court ordered sold for division. The Trimbles are dissatisfied with the judgment, and have appealed. Susan Eversole is also dissatisfied, and has prosecuted a cross-appeal.

On August 11, 1887, J.C. Eversole made a contract with four men by the name of Grigsby, by which he bought from them the coal, minerals, oils, and gasses underlying their property, together with certain mining rights and privileges. On January 31, 1888, J.C. Eversole contracted with John D. White and O.H. Harrison, and sold to them one-half of what he had purchased. On the 15th of April, 1888, J.C. Eversole was assassinated. He died intestate, and left surviving him his widow, Susan Eversole, and five children, to whom the interest of J.C. Eversole in these coal and mineral rights passed under our statutes of descent and distribution.

After the death of Eversole, White and Harrison completed the surveys of this property and settled with the Grigsbys, who then made a deed by which one-half of these coal and mineral rights was conveyed to White and Harrison and the other half was conveyed to the widow and heirs of J.C. Eversole. The deed contains this relative to the interest of the Eversoles:

"The conveyance of the undivided half interest to them herein is meant to convey the title to them in the same manner as they would hold the same now had it been conveyed to J.C. Eversole during his lifetime and he had died seized and possessed of same."

The five children of J.C. Eversole have grown to maturity, and all of them have sold their interest in this property to the Trimbles. In the deed of Clara Belle Cornett, to the Trimbles, Susan Eversole joined as grantor. J.D. White is dead, and his heirs have sold his one-fourth interest in these coal and mineral rights to the Trimbles. O.H. Harrison and his wife have sold Harrison's one-fourth of these coal and mineral rights and by mesne conveyances that has passed to the Kentucky River Coal Corporation, and it has sold certain oil and gas privileges in this one-fourth to the appellee M.A. Morrison.

The Kentucky River Coal Corporation and M.A. Morrison are satisfied with the judgment, and have filed a joint brief giving reasons for sustaining it. The Trimbles are dissatisfied, and are urging two grounds for reversal of the judgment.

The first ground is that the court erred in ordering these coal and mineral rights sold for division. They insist that it should have been divided in kind, while the other parties to the litigation all contend that a division of this property in kind will result in material depreciation of it, both as a whole and as to each part.

The boundary of this property runs around a ridge. The ridge on the north of it is the watershed between Lott's creek and a stream known as Feltner fork; the ridge on the south of it is the watershed between Lott's creek and Second creek, while Lott's creek runs practically through the center of the property.

There are three seams of coal on this property that are referred to in the evidence. No. 7 seam is found near the top of these ridges, and there is a little over 300 acres of it very much disconnected and cut up. The No. 6 seam is more abundant, and it is supposed to underlie about 700 acres of this land, but it too is much broken and interrupted and quite irregular. Coal seam No. 4 occupies a great deal more of this property, but it is also cut in twain by Lott's creek, and is quite irregular, so that just on the evidence as to the coal seams alone it would appear quite speculative to attempt to divide this property in kind, and such a division would be almost certain to result in doing an injustice to one party or the other. These seams are not of uniform thickness, and it would be quite a difficult matter to make an equitable division in kind.

Besides that difficulty, there is supposed to be oil and gasses and perhaps both under the property, and, as pointed out in Union Gas & Oil Co. v. Wiedeman Oil Co., 211 Ky. 361, 277 S.W. 323, it is practically impossbile to make an equitable division of property containing those two substances. Therefore we find the court did not err in ordering a sale of these coal and mineral rights for division.

The next complaint of the Trimbles is that the court erred in adjudging to Susan Eversole a dower interest in any part of this property, in directing that the value of her interest be determined according to Wigglesworth's table of mortality and paid to her in money, and in fixing 73 her age, the date the judgment was entered, as the age that should be used in making this estimate.

It is contended by the Trimbles that the court erred in holding Mrs. Eversole has dower in these mineral rights, so we must first dispose of that question. This record shows conclusively that these mineral rights are undeveloped, no mines have been opened thereon, nor has there been such at any time in the past; these minerals are not now under lease nor have they ever been; they are simply lying there just as they lay on August 11, 1887, or, for that matter, just as they have lain for thousands of years.

Thus we have before us a question with which the courts of America have wrestled for the last hundred years; that is, what happens when the owner of real estate sells the oil, gas, coal, or other mineral rights thereon. Some courts hold the purchaser gets a mere right to go upon the property in question and by suitable operations to take the designated substances therefrom.

Such a right is known as a profit a prendre. See 19 C.J. p. 870, sec. 10. Examples of such rights are: To cut and take timber, Baker v. Kenney, 145 Iowa, 638, 124 N.W. 901, 139 Am. St. Rep. 456. To take sand, Hopper et al. v. Herring et al., 75 N.J....