Wamsley v. Coal
| Decision Date | 22 November 1904 |
| Parties | Wamsley, et al v. Mill Creek Coal and Lumber Company,et al, and Yqkum v. Stalnaker, et al. |
| Court | West Virginia Supreme Court |
Although the statute does not, in terms, require notice to be given by commissioners in partition to the parties, yet the necessity of such notice must be implied, and an exception to the report for failure to give such notice will be sustained and the report set aside. (p. 304).
It is not required that such commissioners should report the money value of the lands partitioned or of any share or lot thereof assigned by them. (p. 306).
In partitioning timber and coal lands, commissioners are not required to report the extent of coal deposits and the acreage, quantity and quality of timber, considered by them in arriving at their conclusion as to the relative value of the several parcels and shares assigned by them to the parties entitled thereto. (p. 306).
Appeal from Circuit Court, Randolph County.
Action by Harriet S. Wamsley and others against the Mill Creek Coal & Lumber Company and others. Decree for defendants, and plaintiffs appeal.
Reversed.
Melville Peck and W. B. Maxwell, for appellants. C. W. Dailey and Talbott & Hoover, for appellees.
Hamilton Stalnaker departed this life, intestate, in 1892, leaving surviving him twelve children and the children of one deceased. He died seized of several tracts of land among which were two tracts of wild lands containing in the aggregate two thousand three hundred and eighty-seven acres. In 1894, Martha D. Yocum, one of the heirs-at-law of said Stalnaker, filed her bill in the circuit court of Randolph county, alleging that the said lands could not be partitioned in kind, and praying that the same might be sold under a decree of the court, and the proceeds divided among those entitled thereto. Benjamin C. Stalnaker and nine other of the heirs of the said decedent filed their answer to Mrs. Yocum's bill, denying that the land was not susceptible of partition in kind, and praying that said interest of the plaintiff, Mrs. Yocum, in the wild lands, might be run off to her, and that the remainder might remain undivided. On the 24th of October, 1899 "It appearing to the court from the deed of conveyance of Martha D. Yocum, the plaintiff, and her husband, to Shelton L. Reger, trustee, that he has become the owner of her undivided interest in the land situate in this county on Mill Creek, and described in the bill of the plaintiff, it is therefore ordered on motion of the said Roger, trustee, that this suit proceed to final decree in his name and at his proper costs." And it being shown that said Eeger, trustee, had acquired nine other interests in said lands, a decree of partition was made appointing commissioners to go upon the lands in the bill and proceedings mentioned, and partition the same, assigning to said Reger, trustee, for the purposes of his trust, ten-thirteenths thereof, and to the defendants, Boston Stalnaker, Harriet S. Wamsley, and Caroline H. Dilley, each onethirteenth interest thereof, taking into consideration quantity, quality, and value of lands so assigned, providing that if it could be conveniently done, they should assign the said Reger, trustee, his interest in one body, and to the other owners their interest separately, unless they should elect otherwise. On the sixth day of May, 1902, a decree was entered, filing a petition by the Mill Creek Coal & Lumber Company, showing that it had become the owner of eleven undivided thirteenths of the said two thousand three hundred and eighty-seven acres, and praying that the partition suit might proceed in its name and that commissioners be appointed to partition the said land between it and Boston Stalnaker and Harriet S. Wamsley in accordance with their respective interests, laying off to petitioner its eleven-thirteenths in one body adjoining other lands belonging to it, and the other two thirteenths be laid off separately to the said Boston Stalnaker and Harriet S. Wasmley, unless they should elect to have their interests laid off together in one body. The said decree of May 6, 1902, recited the fact that the said Mill Creek Coal and Lumber Company had shown itself entitled to eleven undivided thirteenths, and the said Stalnaker and Wamsley were each entitled to one undivided thirteenth of the said lands, and that the conditions as to the ownership of the said lands had been changed since the entry of the decree of October, 1899, and that no action had been taken under said decree. All proceedings under said decree were ordered stayed, and another decree of partition was entered in lieu thereof, directing James Coberly as surveyor, and F. M. White and K. B. Crawford commissioners appointed for that purpose to go upon the said two tracts of land situate upon Mill Creek and its branches, and treating them as one tract, partition the same' between the parties entitled thereto, assigning to the Mill Creek: Coal and Lumber Company eleven-thirteenths, and to Stalnaker and Wamsley each one-thirteenth, taking into consideration quality and value of the land so assigned. On the 13th of July, 1903, the defendant, Harriet S. Wamsley, one of the heirs of Hamilton Stalnaker, and C. S. Wamsley, her husband, filed in the circuit court of Randolph county, their bill of complaint against the Mill Creek Coal and Lumber Company, the Tygarts River Lumber Company, W. S. Tolbard and Boston Stalnaker, alleging that the Mill Creek Coal and Lumber Company had acquired the fee simple title to the undivided eleven-thirteenths of the said two thousand three hundred and eighty-seven acres of land by purchasing the interests of all the heirs except those of the plaintiff and her brother Boston Stalnaker; that said two thousand three hundred and eighty-seven acres was very valuable on account of the timber; that a large part of it was underlaid with one or more very valuable veins of coal and the timber upon and the coal under said lands constituted almost its entire value; that the Mill Creek Coal and Lumber Company had sold the timber on its undivided eleven-thirteenths to the defendants Tygart's River Lumber Company at the prioe of $30.00 per acre for the timber alone; that the Tygart's River Lumber Company and W. S. Tolbard, acting under the rights acquired from the Mill Creek Coal and Lumber Company, had entered upon the said two thousand three hundred and eighty-seven acres of land, and had built a railroad thereon which had greatly damaged the premises, and established a large lumber camp, which they were occupying with a large force of employes and laborers, etc., and had made log roads, built log ways thereon and had removed and cut thousands of feet of very valuable timber, and were still continuing to cut and remove timber, without the permission or consent of the plaintilf or Boston Stalnaker: that in the case of the said Yocum against Stalnaker and others for partition, the commissioners appointed had acted, laying off and assigning to the Mill Creek Coal and Lumber Company for its eleven-thirteenths therein, one thousand six hundred and eighty-seven acres, but that an exception to said report by the Mill Creek Coal and Lumber Company was sustained by the court, and commissioners were again directed to go upon the land and partition the same; that partition on the last order had not yet been made; that plaintiffs were not familiar with the boundaries of the said two thousand three hundred and eighty-seven acres of land, neither were they informed as to what part was underlaid with coal, nor how many merchantable veins of coal there were on said land, and that all of said facts should be definitely ascertained before a partition of said land should be made; and prayed that the defendant, Tygart's River Lumber Company and W. S. Tolbard be enjoined from cutting any timber on said two thousand three hundred and eighty-seven acres until such time as the rights of the parties should be ascertained and fixed, and their interests assigned to them, and that they be restrained and enjoined from operating any part of said railroad which was upon the lands assigned to plaintiff and defendant Stalnaker; that an accounting be had of timber cut Upon the said two thousand three hundred and eighty-seven acres of land be ascertained and the value fixed, and a decree in favor of plaintiff, Harriet S. Wamsley, against said Tygart's River Lumber Company be rendered for the full, fair one-thirteenth part of the value of the timber so cut, and the damage to the said tract of land by reason of building of said railroad thereon and the erection of said lumber camp, be ascertained and a decree rendered for her one-thirteenth part of such damages; that the true boundaries of the said two thousand three hundred and eighty-seven acres of land underlaid with coal and the character, amount, and quality of the said coal be ascertained, and the land partitioned with reference thereto; and praying that the cause of Yocum against Stalnaker and others, together with all the papers and proceedings thereon be taken and read as part of her bill and for general relief. The Mill Creek Coal and Lumber Company filed its answer to said bill, admitting that it had sold the timber on its eleven-thirteenths of the said tract of land to the Tygart's River Lumber Company as well as the timber on over six thousand acres adjoining said tract, and that in its contract of sale of timber to said Tygart's River Lumber Company, it undertook to authorize the said Company to put down on said tract a tram or other railroad over which to haul the timber which it should cut upon said tract, as well as the timber it should cut upon the other lands adjoining the same as the respondent claimed it had a right to do; that respondent was not...
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