
    Black et al. v. Sylvania Producing Co.
    
      Partition — Right to remedy liberally construed — Leasehold interest in oil and gas $artitionable.
    
    1. The right of partition, either under the statute or in equity, is remedial in its nature, and should be liberally construed.
    2. A leasehold interest for oil and gas, with the usual rights and appurtenances necessary to development of the lands and the production of such oil and gas, is partitionable, either under the statute or, as in this case, in equity.
    (No. 17179
    Decided July 5, 1922.)
    Error to the Court of Appeals of Monroe county.
    The Sylvania Producing Company filed its petition in the court of common pleas of Monroe county, Ohio, against the defendants, Charles O. Black and Samuel A. Black, praying for a partition of the rights and interests in and to certain leases on three several tracts of land therein described, particularly “certain leases for oil and gas purposes and leasehold estates thereby respectively created.”
    It is averred in the petition “that each of the above oil and gas leases and leasehold estates are to continue for and during such a period of time as they, or either of them may produce oil or gas in paying quantities.”
    It is further averred that the plaintiff was then an owner of an undivided one-half part of the leases, and that each of the defendants was the owner of an undivided one-fourth of such leases.
    It is further averred “that the lands above described have been rich in the production of oil for many years last past, and that each of sáid tracts is still producing oil and gas in paying quantities, and will continue to produce in paying quantities for many years. * * * That there is no person in charge of said property, but that plaintiff and defendants have been attempting to jointly operate and look after the same, to their financial loss, that the defendants herein have not been meeting their part of the bills and expenses of said operations, as they became due, and are now in default for payment to this plaintiff.”
    Plaintiff in its petition further says that it does not desire to continue the joint operation of such premises with the defendants; that it desires to terminate the relations existing between itself and the defendants in and to the property, wherefore it prays that each of said oil and gas leases and leasehold estates above described may be partitioned, and its interests be set off to it in severalty; and, if that cannot be done, that the property may be sold according to law, and the proceeds arising from such sale be divided, and an accounting had between plaintiff and defendants; and if partition cannot be had of said premises, that a receiver may be appointed to take charge of the property and to sell the same under the order of court, etc. It further prays for all and further relief to which it may be entitled either in law or equity.
    To this petition defendants demurred, which demurrer was overruled.
    The defendants not desiring to plead further, judgment was entered for the plaintiff, and an order of partition was made and commissioners appointed. Error was prosecuted to the court of appeals, where the judgment of the court of common pleas was affirmed. Error is now prosecuted to this court to reverse those judgments.
    
      Messrs. Sykes & Folger and Messrs. Lynch & Lynch, for plaintiffs in error.
    
      Messrs. Moore, DeVaul & Moore, for defendant in error.
   Wanamaker, J.

The one single question in this case is whether or not the petition describes such an interest or estate in land as may be partitioned, either under the statute, or in equity.

Section 12026, General Code, reads :■

“Tenants in common, and coparceners, of any estate in lands, tenements, or hereditaments within the state, may be compelled to make or suffer partition thereof in the manner hereinafter prescribed.”

The general doctrine touching what is partitionabie is ably and concisely discussed in 30 Cyc., 152:

“Anciently the word ‘partition’ was employed only with reference to a division of lands by parceners or coheirs which had descended to them by law or by custom. The word has long ceased to be used in this restricted sense. Herein it is intended to include every means by which property held by two or more persons in cotenancy is converted into estates in severalty aud thereby divided among them, either by assigning parts to be held in severalty or by making a sale of the whole and awarding to each his share of the proceeds.”

The same authority, volume 16, page 599, summarizing the definitions and applications of the term “estate,” as used in the statute, says:

“An estate in land is the degree, quantity, nature, or extent of interest which a person has in it. * "While in its primary and technical sense the term ‘estate’ refers only to an interest in land, yet by common usage it has acquired a much wider import and application, being applied to personal property as well as realty, and in its most extreme sense signifying everything of which riches or fortune may consist. In many cases therefore its precise meaning can only be ascertained from the context, or the circumstances under which it is used. As applied to land it does not necessarily import a fee or even a freehold, but merely the quantity of interest a person has from absolute ownership to naked possession, and is applied to rights in land, both in possession * *

And numerous cases are cited in support of the doctrine.

An action in partition is naturally and necessarily remedial in character, and, therefore, under the general rule long and soundly established, should he liberally construed.

We hold, therefore, that, under statutory partition, a leasehold for oil and gas, with the right to the use of the fee for the purposes of producing oil or gas, or of drilling for or otherwise discovering the same, in an estate of land such as contemplated bv the statute, may he the subject of partition.

Feudalism, which rigorously and strictly fixed the law of estates, can no longer be applied to the entirely different and more varied industrial, economic and business conditions of the twentieth century.

But the petition in this case, the demurrer to which was overruled, went much farther than is required by the statute and set up an equitable cause of action, averring that the copartners were unable to agree as to the management and control of the property held by them in common; that by reason thereof the property was suffering and its development retarded.

The petition further avers that the defendants had refused to pay their fair and just share of the expense incident to the full use and development under the lease, and therefore prayed for an equitable partition, and, pending the same, for a receiver.

If the petition was insufficient for a statutory partition, it clearly is sufficient for an equitable partition. Where there is a wrong pleaded, equity should he far-reaching enough and sufficiently adaptable to furnish a remedy for that wrong. Such'a wrong is presented by the petition.

The demurrer was rightfully overruled, and the partition was lawfully and equitably ordered.

Judgment affirmed.

Marshall, C. J., Johnson, Jones and Matthias, JJ., concur.

Robinson, J., took no part in the consideration or decision of the case.  