Byers v. Byers

Citations

• 183 Pa. 509
• 38 A. 1027
• 1898 Pa. LEXIS 1072

Syllabus

<p>Tenants in common — Parol partition — Partition by horizontal or vertical lines.</p> <p>A parol partition between tenants in common is valid and conclusive, and suoh partition may be by horizontal as well as by vertical lines.</p> <p>Tenants in common — Parol partition — Goal lands — Burden of proof.</p> <p>Where two tenants in common have made a parol partition of coal lands, and one claims that the partition included both surface and coal, and the other that it extended merely to the surface, the presumption is that it included the whole estate, and the burden of proof is upon the latter to show that the partition did not include the coal.</p> <p>On action of partition for the coal in certain lands, it was admitted by both parties, who had been tenants in common, that there had been a parol partition in 1848, but the plaintiff claimed that it extended only to the surface, while the defendant claimed that it included both surface and coal. There was evidence that the plaintiff occasionally took coal after the partition. Held, (1) that the occasional taking of coal, even if only permissive, would not prevent the partition from being executed in the legal sense, including the coal as well as the surface; (2) that, as the plaintiffs never had either adverse or exclusive possession of the coal, the statute of limitations had no bearing upon the case ; (8) that the jury should have been instructed that the parties had the right to make such partition as they chose, either of the whole land or of the surface only; that the presumption was that they parted the whole, but that presumption would give way to the intention of the parties, and it was for the jury to determine from all the evidence what the parties intended to include in the partition and to find a verdict that would carry out that intention.</p>