Opinion
12-20-1887
KEMBLE v. KEMBLE et al.
Mr. Van Blarcom, for complainant. M. R. Kemble, for defendants.
Bill for partition.
Mr. Van Blarcom, for complainant. M. R. Kemble, for defendants.
BIRD, V. C. The bill in this case is filed for the partition of lands. The only question involved is, whether partition can be made without great prejudice or not; or, if partition cannot be made so that each of the defendants can have the share to which he is entitled in the land, whether a partial partition can be made by giving four of them, who are entitled to four-eighths, their shares in the land in one parcel, and by making division of the other parcel according to the interests of the other owners. The number of acres described is 92. It is claimed that there are extensive valuable mineral deposits beneath the surface; but it is not certain as to their exact locality, and it is uncertain as to their extent or value. But the allegation of their existence creates the difficulty which has caused me to hesitate about disposing of the case; for plainly, if the mineral deposits be what they are claimed to be, on the one hand, and there could be an equal distribution of them under the law, it would be the duty of the court to make division of the inheritance. This right, so long recognized, is cherished as of great importance, and I think courts never fail to give it due weight in the consideration of every such question. But while this is so, the possibility of doing injustice, by the division of land under such circumstances, gave rise to the statute which provides against division when it cannot be done without great prejudice. An effort was made to fix, with some certainty, the location of the minerals; but, for all judicial purposes, it seems to me that there was an entire failure, and only presented more strongly the difficulty under which I am laboring; that is, the uncertainty of making a division without doing great injustice to some of the parties. If one-half of it were to be assigned to the four part owners, they might get all of the mineral deposits. The testimony satisfies me that that is possible. And yet I think it is possible that, in making a division, a smaller portion than one-half might possibly contain the larger portion of the mineral deposits. These statements are sufficient to satisfy the mind that the action of a court would, in all probability, impose a great disadvantage upon one or more of the tenants in common. It is plain, therefore, that I cannot proceed under the act of April 20, 1885, and give to any two or more of the parties to this suit any portion of these lands, and order the rest to be sold, without encountering and violating provisions of the act which says in somany words that a division or partition is not to be made if it will work great prejudice to the owners.
I will advise a decree in accordance with these views.