Williams v. Coal Co.

1 Citing case

  1. Williams v. Coal Co.

    119 W. Va. 200 (W. Va. 1937)

    gh said parcel of land so located as to give on the west side thereof and adjoining other property of said coal company a full two-fifths of the Upper Freeport coal under the entire parcel of land, making due allowance for and not including the outcrop of said coal as a part thereof, but including sufficient marketable coal to make up said two-fifths; that there was no dispute and never had been any dispute or disagreement between the parties as to the outcrop lines of the Upper Freeport coal, nor as to the true division line if the division line laying off the two-fifths and three-fifths, respectively, is to be a straight line across the tract of land. When the bill was here on certificate, we reversed the chancellor's action in sustaining a demurrer on ground of multifariousness, on the theory that there was a sufficient "community of interest" in the enterprise, to afford plaintiff both a ground for injunctive relief and a common cause of complaint against the several defendants. Williams v. Victory Coal Co., 117 W. Va. 9, 183 S.E. 520. The answer of the Victory Coal Company, the principal defendant, after denying (1) that plaintiff's alleged "survey, if made, is correct", and (2) that it gives "defendant on the west side thereof and adjoining other property of this defendant a full two-fifths of the coal as provided for in said written contract", avers that, after the contract was executed, the plaintiff and defendant finally agreed (in 1933) on a surveyor who was to run the line according to the contract; that both parties agreed to submit to, and abide by, the division so made; that the surveyor did run said division line according to contract; that he made a plat, which is an exhibit to said answer; that he gave defendant a copy of the plat and that plaintiff never complained of the division so made to the knowledge of defendant until the bringing of the present suit.