## Facts

- A 75-acre tract in Lincoln County, West Virginia had been held by the Caudill family for nearly 100 years and contained a farmhouse (c. 1920), barns, and a family garden.
- Ark Land Company acquired a 67.5% undivided interest from some family members to conduct surface coal mining that would require removal of the home and related structures.
- Remaining co-tenants (the Caudill heirs) refused to sell and sought to keep the homeplace.
- Ark Land filed an action for partition and requested partition by sale under W. Va. Code § 37-4-3.
- Court-appointed commissioners reported that the property could not be “conveniently partitioned in kind.”
- At a de novo hearing, the heirs presented evidence that a physical division could preserve the homeplace while leaving Ark Land sufficient land to mine.
- Ark Land contended that any partition preserving the homeplace would add several million dollars to mining costs.
- The circuit court ordered partition by sale, reasoning that partition in kind would create inconvenience and substantially increase Ark Land’s costs.

## Issues

1. Under W. Va. Code § 37-4-3, when may a co-tenant compel partition by sale rather than partition in kind?
2. Whether increased mining costs and economic efficiency for the majority owner establish that property cannot be “conveniently partitioned in kind.”
3. Whether longstanding ownership and sentimental or emotional attachment may be considered in determining whether a forced sale would prejudice the interests of co-tenants opposing sale.

## Decision

- The Supreme Court of Appeals of West Virginia reversed the order of partition by sale and remanded.
- The court held the tract must be partitioned in kind.
- The court concluded Ark Land did not satisfy the statutory prerequisites for sale, particularly the requirement that opponents of sale not be prejudiced.
- The court directed further proceedings consistent with a physical division that preserves the homeplace while allocating a portion to Ark Land.

## Legal Principles

- Partition in kind is the preferred remedy; partition by sale is disfavored and requires satisfaction of statutory conditions.
- A party seeking partition by sale must prove: (1) the property cannot be conveniently partitioned in kind; (2) one or more parties’ interests will be promoted by sale; and (3) other parties’ interests will not be prejudiced by sale.
- Economic value is not the exclusive test in deciding between partition in kind and sale.
- Evidence of longstanding ownership and sentimental or emotional interests is relevant to whether a sale would prejudice an opposing co-tenant.
- When partition in kind is feasible, demonstrated prejudice tied to family ownership and attachment should ordinarily control even if partition in kind causes economic inconvenience to the party seeking sale.
- “Cannot be conveniently partitioned” is not established solely by showing increased costs to an industrial user, especially where credible evidence supports a workable physical division.
- A purchaser who knowingly acquires a partial interest for industrial use assumes the risk that other co-tenants may refuse to sell and cannot rely on that risk to force a sale when in-kind division is feasible.

## Conclusion

The court required partition in kind because a forced sale was not justified by the majority owner’s cost savings where the property could be physically divided and the opposing co-tenants showed substantial prejudice based on longstanding family ownership and attachment to the homeplace.


Ark Land Co. v. Harper, 215 W. Va. 331, 599 S.E.2d 754 (W. Va. 2004)