Stern v. Great So. Land Co. , 148 Miss. 649 ( 1927 )

^* Corpus Juris-Cyc. References: Mines and Minerals, 40CJ, p. 903, n. 73; p. 969, n. 74; Partition, 30Cyc, p. 174, n. 83; p. 267, n. 2; p. 269, n. 23. On right of joint tenants and tenants in common to partition, see annotation in 28 A.L.R. 727; 20 R.C.L. 743; 3 R.C.L. Supp. 1101; 4 R.C.L. Supp. 1376; 5 R.C.L. Supp. 1125; 6 R.C.L. Supp. 1233. Appellee filed its bill in the chancery court of Harrison county against the appellants, for a sale, through that court, and a division of the proceeds thereof among the parties to the cause, according to their respective interests, of all the deposits of clay, oil, and minerals, of whatsoever kind, under the surface of five hundred sixty acres of land in Harrison county described in the bill. There was a trial on bill, answer, and proof, resulting in a decree granting the prayer of the bill. A sale was thereafter made of the property involved through a commissioner appointed by the court, which sale was confirmed by the court. From these decrees, as well as a decree overruling appellants' demurrer to appellee's bill, the appellants prosecute this appeal.

Appellee owned the entire interest in the five hundred sixty acres of land, except the "deposits of clay, oil, and minerals of whatsoever kind" thereunder, as to which appellee owned an undivided one-half interest, and the appellants, jointly, owned the other undivided one-half interest. The conveyance of such deposits, under which the parties claimed title, contained a reservation of the right, to the owners, to at all times enter upon the land and remove such deposits.

Appellee alleges in its bill that the deposits of clay, oil, and minerals under the five hundred sixty acres of land were not susceptible of partition in kind, and that a sale was necessary, in the interest of all parties, and a division of the proceeds thereof among the tenants in common — the parties to this cause. No evidence was introduced bearing on the question as to whether or not the deposits of clay, oil, and minerals in the land were susceptible of partition in kind, and appellants contend that, under our partition statutes (sections 3520 to 3542, inclusive, Code of 1906 [sections 3034 to 3056, inclusive, Hemingway's Code 1927]), the chancery court was without authority to either partition in kind, or order a sale and a division of the proceeds thereof among the parties in interest, of the clay, oil, and mineral interests in the land. The appellants' position is, and their contention is sustained by the authorities, including this court, that the partition of land held by joint tenants, tenants in common, or coparceners is regulated alone by statute, and is not dependent upon the common law or general principles of equity. 4 Pomeroy, Equity Jurisprudence (3 Ed.), sections 1389, 1390; Forest Product Co. v. Buckley, 107 Miss. 899, 66 So. 279.

Are deposits of clay, oil, and minerals in land covered by sections 3521, 3522, and 3524, Code of 1906 (sections 3035, 3036, and 3038, Hemingway's Code 1927)? The first section referred to provides, among other things, that a partition of land held by joint tenants, tenants in common, or coparceners, having an estate in possession, or a right of possession, and not in reversion or remainder, whether the joint interest be in the freehold or a term of years not less than five, may be made by decree of the chancery court of the county in which the lands, or some part thereof, are situated. The second section referred to provides, among other things, that the parties in interest may institute in the chancery court proceedings for partition of lands or sale thereof by decree of the court, and the latter section referred to provides, among other things, that if, upon hearing, the court be of the opinion that a sale of the lands, or any part thereof, will better promote the interest of all parties concerned than a partition in kind, or if the court be satisfied that an equal division in kind cannot be made, the court shall order a sale of the lands, or such part thereof, as may be deemed proper for a division of the proceeds among the cotenants, according to their re spective interests.

The deposits of clay, oil, and minerals under the surface of land, of themselves, constitute land, and are susceptible of separate ownership from the ownership of the surface of the land.Moss v. Jourdan, 129 Miss. 598, 92 So. 89. And such interest may be separately conveyed from all other interests in the land, as can be done of standing timber on land. We are of opinion that, under our partition statutes, tenants in common of any estate in land, in possession, which is susceptible of separate ownership and conveyance from the balance of the estate in the land, may have such interest partitioned.

Appellants contend, however, that, even if that be true, the appellee failed to establish the allegations in its bill to the effect that the deposits of clay, oil, and minerals involved were not susceptible of partition in kind, and that a sale was necessary for the best interest of all the tenants in common. It is true, as contended, that no evidence was introduced to show that there could not be a partition in kind of the clay, oil, and mineral interests in the land. Appellants argue that it was a condition precedent to the authority of the court to order a sale of such an interest, to show that such interest was not susceptible of partition in kind, and that a sale was necessary and would better promote the interest of all the tenants in common, relying, to sustain that contention, on Smith v.Stansel, 93 Miss. 69, 46 So. 538; Shorter v. Lesser, 98 Miss. 706, 54 So. 155, and Hilbun v. Hilbun,134 Miss. 235, 98 So. 593. It is true, this court held in those cases that a sale of land for a division of the proceeds thereof among the tenants in common will not be ordered unless the land is not susceptible of partition in kind, and that the burden is on the cotenant seeking such sale to show that it is not susceptible of partition in kind.

But there are some things that do not require proof; they are self-evident, and we think the very character and nature of the interests in the land sought here to be sold make it self-evident that they are not susceptible of partition in kind among the cotenants owning it. There is no controversy whatever in the pleadings or proof as to the nature and character of such interests. They are deposits of clay, oil, and minerals under the five hundred sixty acres of land. As to where such deposits are, whether under the entire surface of the land, or only a part of it, would, of course, be a mere matter of opinion, and could not be ascertained, positively, without an expensive mining operation which might cover months, and possibly, years. To partition the deposits of clay, oil, and minerals here involved, if feasible, it seems could only be done through an expensive and protracted mining scheme inaugurated and carried out by the chancery court.Robertson Land Co. v. Paull, 63 W. Va. 249, 59 S.E. 1085, 15 Ann. Cas. 775, and notes; Dangerfield v. Caldwell, 151 F. 554, 81 C.C.A. 400; Sheffield Coal Iron Co. v. Ala. FuelCo., 185 Ala. 50, 64 So. 67.

Affirmed.