Fortney v. Tope , 262 Mich. 593 ( 1933 )

I find no fault with the statement of facts made by Mr. Justice SHARPE. I am not in accord with his opinion as to the necessity of selling the land. The record indicates, in the opinion of one of the plaintiffs, the land in question is in an oil field. There are no wells on the land in question. No well or wells thereon have ever been attempted. The rule in relation to partition of land of this kind is different from that applying to land upon which there are wells.

"There is no doubt that an action of partition lies to divide undeveloped and supposable oil or gas lands, just as it does in case of lands containing solid minerals; for it cannot be known, owing to the peculiar character of gas or oil as a mineral whether the land to be divided is actual gas or oil lands; and to refuse partition on the theory that it may be, would be for the court to enter upon the domain of mere speculation or supposability." 2 Willis' Thornton, Oil Gas, § 437, p. 744.

The same rule is recognized in 47 C. J. p. 292, and by the court in Rainey v. H. C. Frick Coke Co., 73 Fed. 389, where partition was granted, the court saying:

"The subtile character of the subterranean elements in question are always, in mining operations, elements of more or less uncertainty and possible danger, and we avoid all risk of doing harm to the land we have undertaken to partition by staying the hand of all parties until we have finished our duty in the premises."

In Woods v. Rolls (Tex.Civ.App.), 268 S.W. 988, partition of the premises was granted and an appeal taken. In sustaining the right of plaintiffs to partition and denying sale, it was held they were entitled to it —

"Especially in view of the fact that the record shows that no drilling has been done upon the land to develop oil and gas, and therefore it cannot be determined whether or not such minerals can be found thereon; or whether or not one portion of the land is richer than the other portions in such materials. A more difficult question would arise if a part of the land had already been drilled and oil and gas in paying quantities had been discovered."

The same rule has been applied to the partition of a leasehold interest in lands suspected to have oil and gas thereon. Black v. Sylvania Producing Co., 105 Ohio St. 346 (137 N.E. 904). The question of the partition of suspected oil and gas lands was before the court in Henderson v. Chesley (Tex.Civ.App.), 273 S.W. 299, in which case the rule of Woods v.Rolls, supra, was approved, and the court quoted with approval from Thornton on Oil Gas the language above. The rule laid down by Thornton in relation to oil and gas is applicable to mines which, when open, are in their nature indivisible, and partition may only be made by ordering a sale of the mines and dividing the proceeds.

"These were instances where the mines had been opened. Where the mine has not been opened, the right to partition of land having upon it solid minerals has been recognized; and it will be decreed, unless the mineral is so situated that a probably fair division of it cannot be made by dividing the surface of the land. All things being equal, as between a partition and a sale, a partition will be decreed." 2 Willis' Thornton, Oil Gas, § 436, p. 742.

This is the rule of Hughes v. Devlin, 23 Cal. 501; Rainey. v.H. C. Frick Coke Co., supra; Wilson v. Bogle, 95 Tenn. 290 (32 S.W. 386, 49 Am. St. Rep. 929); Conant v. Smith, 1 Aikens (Vt.), 67 (15 Am. Dec. 669); Kemble v. Kemble, 44 N.J. Eq. 454 (11 A. 733); Ames v. Ames, 160 Ill. 599 (43 N.E. 592), which cases are cited with approval in Henderson v. Chesley,supra, which quoted with approval 2 Willis' Thornton, Oil Gas, § 436, p. 742.

"Partition of oil, gas, and mineral lands which have not been explored or developed may ordinarily be made by dividing the surface, it being assumed, in the absence of any contrary showing, that each portion of the land contains an equal amount." 47 C. J. p. 501.

"Where there is no convincing reason for supposing the land to be oil-bearing, there is no reason apparent why the oil and gas rights thereof should not be partitioned by metes and bounds, or why the lease thereon should not be divided between the owners upon an acreage basis. Mills Willingham, Law of Oil Gas, p. 272.

The great weight of authority sustains the rule contended for: There is nothing in the statute in this State changing the rule. In Benedict v. Torrent, 83 Mich. 181 (11 L.R.A. 278, 21 Am. St. Rep. 589), this court said:

"If the lands can be divided, this must be done. No authority to sell when partition can be had is given. The law, common and statutory, has always most carefully protected the owners of land in their right to preserve and enjoy it as they desire. This is an inherent right of which they can only be deprived on the ground of public necessity, by sale upon execution, and in certain cases of partition. This partition statute further provides that if the commissioners report that the lands held in common cannot be divided without great prejudice to the owners, and if the court shall be satisfied that such report is just and correct, it may then order a sale; but if any portion of the lands can be divided without great prejudice to the owners, it must be partitioned, and only those portions sold which cannot be divided. * * * It is not sufficient under this statute that the lands cannot be divided without prejudice. Great prejudice must exist in order to warrant a sale. It is therefore entirely clear that the only decree which the court could render in partition proceedings would be a division of these lands as an entirety between the tenants in common, because no difficulty whatever exists in effecting a division."

This rule is applicable to the case in question. A forced sale deprives the party opposed thereto of his property, in kind, which he may desire to retain.

The rule is:

1. Oil, gas, and mineral producing lands may not ordinarily be partitioned in kind, for the reason that inequitable results may follow, and that equality which lies at the foundation of equity be disturbed.

2. The law deals with realities, not with speculative supposibilities. A mere suspicion that land, from its location, may contain oil or gas, constitutes no legal or equitable excuse for ordering a sale thereof; the presumption of oil or gas existing in proportion to acreage prevailing in the absence of exploration or development and a partition in kind being the rule.

3. Much of the agricultural land of Michigan is under lease for oil and gas. It would contravene the established policy of the State to hold such lands could not be partitioned in kind but must be sold because someone suspected oil or gas to exist thereon and procured and paid for a lease thereof.

The decree of the trial court should be affirmed, with costs, without modification.