Albright, Justice, dissenting:
I dissent because the Partition Commissioners' report discloses on its face that
the Commissioners disregarded the preeminent principles of partition law: fairness and
equity. Specifically, the Commissioners acknowledged that their deliberations probably did
not do justice: “Of course, receipt of that northern portion of the property [by Appellants]
may not guarantee the same value the coal would have if situate closer to the active workings
of the adjoining [Appellees'] Laurita tract.”
It is axiomatic that the law of partition in kind
has as its objective the division of land in an equitable fashion “so as to do justice to all the
parties as nearly as the subject will admit.” Henrie v. Johnson, 28 W.Va. 190, 194 (1886).
Appellees own coal lands adjoining the tract partitioned in this case. Our case
law established long ago that in a partition in kind, Appellees are entitled to be awarded a
portion of the partitioned tract adjoining their other land “if this can be done without injury
The first problem with the decision below is that by rejecting Appellees'
request for an east/west partition and insisting on a north/south partition, the Commissioners
missed the chance to both fulfill the historic preference for causing a portion of the
partitioned land to adjoin Appellants' other land and the chance of minimizing any injury to
the interests of Appellants arising from the partition.
Appellants correctly argue that the decision to divide the subject parcels in a
north/south fashion and the allotment to Appellants of the northern section of the property
results in depriving them of good access to whatever mineable coal underlies the property.
Appellees own a fifty-seven acre parcel contiguous to the southern parcel of the partitioned
property awarded to Appellees. Through this manner of effecting partition, Appellants have
been placed at a specific disadvantage with regard to extracting the valuable minerals
underlying their parcel of property given their lack of attainable access to the coal.
(See footnote 1)
As previously noted, the Partition Commissioners bluntly acknowledged the
resulting inequity inherent to the partition selection they made. The Commissioners shrugged
In ascertaining the value of coal property appearing to have essentially equal
quantity and quality of coal underlying the surface, there remains at least two other major
factors which contribute to an overall assessment of the value of that coal: mineability and
accessibility. It appears from the record that the Commissioners failed completely in their
obligation to assess the impact on mineability and accessibility arising from their decision
to divide the property in a north/south manner. Likewise, it appears likely that the decision
to award only the northern portion of the tract to Appellants resulted in Appellants receiving
coal lands substantially reduced in value because of the lack of accessability for mining.
Appellants only recourse appears to be subsequent negotiations with Appellees. In short,
Appellants likely got some “home cooking” in this deal and it was neither fair, equitable, nor
necessary.
Given the inherent inequitable result of the partitioning decision at issue when
value is examined in terms not limited to acreage, and particularly the announced intention
of the Commissioners to disregard the disadvantage to which Appellants have been put with
regard to accessing and removing their coal, I must respectfully dissent from this Court's
decision. I consider that the majority did not intend the resulting injustice; the majority
simply failed to recognize and rectify that injustice.
As the comment above quoted from the Commissioners' report makes clear, that principle
was simply ignored in this case.
While Appellees dispute that Appellants are in worse shape than they are with
regard to gaining access to the coal in place, the facts of this case suggest otherwise.
Appellees argue that their only right of surface access to the southern portion of the parcel
has been extinguished due to the termination of a lease agreement under which they
previously had such access. However, the fact that they own the adjacent parcel of property
certainly suggests that they are in a superior bargaining position to obtain the easements or
rights of way necessary for development of the coal estate. Lacking that same bargaining
position, Appellants will now be forced to enter into some sort of an agreement with
Appellees to effectuate removal of any extracted coal from their portion of the parcel or
forego the exploration and development of the northern parcel assigned to them.
Consequently, the effect of the north/south partition, given Appellees' ownership of an
adjacent parcel of property, is to effectively reduce the bargaining power of Appellants with
regard to mining the coal underlying their share of the parcel. By leaving Appellants in this
uneven bargaining position, the partition effected by the lower court's ruling runs afoul of
the desired objectives of this state's partitioning statutes not to prejudice the interests of one
party while promoting the specific interests of another. See W.Va. Code § 37-4-3 (1957)
(Repl. Vol. 1997).
Footnote: 1