Hall v. Vernon

Brannon, Judge: Hall brougiit a suit in equity ag-ainst Vernon and others in the circuit court of Wirt County, alleging that a tract of one thousand one hundred and three acres of land was, as to the surface, owned by Messrs. Doneho and Vernon, and that they had divided the surface; that the tract contained oil; that Messrs. Doneho, Vernon, and Hall owned the minerals in it, each a third; and-that in a suit brought by Hall ana Vernon against Doneho and others some years before there had been a decree of partition.of the mineral ownership into lots forty rods wide, and running to the exterior of the tract, which decree the bill in this case alleged had been obtained through fraud of Vernon, and it sought to annul the decree. The bill alleged that Vernon under this decree was taking oil from the lots assigned him, and using tanks, machinery, etc., belonging to all three persons, in his operations. The bill asked (and it was granted) an injunction restraining Vernon from operating oil wells on the tract, and from selling oil produced thereon, and restraining the pipe-line companies from paying Vernon for oil, or giving him certificates for oil deposited with them. A decree dissolved the injunction so far as it related to the land or the partition assailed, the court holding that the decree of partition had not been obtained by fraud. Hall appealed. A majority of the Court are of opinion that the decree of partition is void, and constitutes a cloud over Hall’s title, which a court of equity will dispel by setting aside the decree. They take this position on the ground that oil and gas are fugitive, and that co-owners of them, not owning the surface, have a mere right to explore for them, and that it is impossible to partition the same in kind, owing to the nature of oil and gas, and that a court cannot be called on to do an impossible thing, and has no jurisdiction to partition such a right by allotting gas and oil under certain sections of the surface. They hold that partition can be [297] made only by sale and division of proceeds. Counsel cites the following- authorities, for that view; Gill v. Weston, II0 Pa. St. 312, 1 Atl. 921; Frem. Co-Ten. § 436; 15 Am. Eng. Enc. Law, 607; Smelting Co. v. Rucker, (C. C.)28 Fed. 220; Conant v. Smith, 1 Aiken, 67; Bainb. Mines, 155; Lenfers v. Henke, 73 Ill. 405; Kemble v. Kemble, 44 N. J. Eq. 454, 11 Atl. 733. I am of the opinion that there may be partition of oil and gas owned in fee separate from the surface, by allotting it by sections of the surface. True, one may not get any oil; but the chance is equal for all, — the best that can be done to avoid the sale of the property from its owners, which they have right to develop separately, as they have right to a partition in kind, if possible. Oil in place,is realty, and therefore partition may be had of it where the tract is of considerable area. Freem. Co-Ten. §§ 433, 435; Hughes v. Devlin, 23 Cal. 501; Barringer & A. Mines & M. p. 54; Marble Co. v. Ripley, 10 Wall. 339, 19 L. Ed. 955. Also, I think that, as equity has jurisdiction in partition, it can determine whether the subject is partible or not, and tnat, even if the decree be .erroneous, it is not void in a legal sense. The decree dissolving the injunction is reversed, and the cause is remanded, with directions to the circuit court to entera decree setting aside the decree of partition and perpetuating the injunction, and to proceed further as to matters of personal property before it.