Smyth alleged that they co-owned a fee simple estate with White, including all the rock asphalt in and under the estate.
White's Uvalde Mines removed a large quantity of rock asphalt and failed to account to Smyth for their portion.
Smyth asked that the rock asphalt estate be declared incapable of partition in kind and asked that it be sold and the proceeds divided and that the Whites pay them for the rock asphalt removed.
Ranch was passed to 9 children upon death of owner.
One child leased to White (petitioner).
Smyth (respondent) ended up with 8/9 interest.
Trial court held for Smyth, 200 acre tract couldn't be partitioned in kind and should be sold and distributed. Also, Whites owed $222k to Smyths (8/9ths of net profits).
COA affirmed trial court judgment.
How do courts determine whether land can be subject to partition-in-kind?
When land cannot be partitioned in-kind, how are proceeds from natural resources divided between co-tenants?
Land can be partitioned in-kind if the value of natural resources is of a known quantity and relatively uniform location over the land.
When land cannot be partitioned in-kind, the non-operating co-tenants do not give up title until the natural resources are disposed of by sale or until there is an established market value for them. Non-operating co-tenant's rights attach to the proceeds, not the value of the natural resource before it was removed.
Court upheld jury's finding that the property could not be partitioned in kind because the rock asphalt is of unknown quantity and location over the land.
There is a rule in the state about oil: one who takes oil is accountable to co-tenants for their share of the proceeds.
Petitioner argues that he has not mined more than his fair share of the rock asphalt and has not excluded co-tenants from premises.
Relies on Kirby Lumber Co., in which the Temple company cut most of the timber on a tract that they only owned 2/3 interest in. Court assessed how much timber there was before the cutting. Kirby Company had an interest in 1/3 of it. Only charged Temple for the amount of timber it had cut in excess of its 2/3 share of timber originally standing.
However this case is different because the timber was generally uniform as to value and subject to partition in kind. That is not the case here.
Respondents did not give up title to minerals until they were sold, so his rights attach to the proceeds of the asphalt, not the value of the asphalt while it was in the ground.
Petitioner argues that the Respondent should not benefit from P's personal skill, use of machinery, etc.
Court says that making rock asphalt is a process, not manufacturing.
Must be mixed and crushed and mixed with oil and water.
The trial court's judgment, requiring P to account to R according to their interests for the profits realized from the common property after crediting P with all the expenses and compensation for personal services and value of the use of the plant, assures to all the co-owners the benefits and values of their ownership.
Measure of recovery allowed to the respondents is wrong and contrary to the applicable precedents under the established facts.
White should have been required to account for the 99k in value of the rock asphalt taken, not the $222k net manufactured value of the rock asphalt.
A higher figure is not compensatory but punitive.
Rock had to be manufactured in to paving material before it was of any practicable use.
Oil cases say that co-tenant must account for value of crude oil, not for refined oil if co-tenant refined it himself.