WVSORO Sample Answer to a Partition Suit

Our co-founder lawyer has drafted a sample that can be used to fight a partition suit filed in Circuit Court that attempts to take a mineral owner’s interest in their land from them.  It is a very good idea to talk to a lawyer about this if you do get court papers for a partition of your property.  But this sample is a place for you, and your lawyer, to start.

Sample Answer to Partition Suit

Here is a sample answer to a partition suit that was written by a lawyer who is a co-founder of the West Virginia Surface Owner’s Rights Organization.  

Drillers have to get the signatures on a lease of each and every one of the co-owners/co-tenants/co-parceners of a mineral tract before they can drill it (or frac’ into it).  

In situations where drillers can only get some/most of them to sign leases, but not all of them, the drillers generally use the 2018 Cotenancy statute.  

Sometimes however, drillers are still using “partition” lawsuits where the driller buys out one co-owner and brings a lawsuit to have the holdouts’ ownership interests sold to the driller or at a public sale!  The holdouts do get some money up front, but not future royalty payments and not as much total money.  We recommend fighting partition suits even if just to get the leverage to get a lease or amendment with good, modern royalties and other terms.  

You can file an answer contesting a partition suit on your own (“pro se” in court talk).  But this is probably a situation where, if you get served with one of these suits, you need to talk to a lawyer.  Few lawyers are expert in this kind of thing.  So we suggest that you show this sample to the lawyer you pick.  We have some lawyers who know something about this area. 

Our sample answer to a partition suit gives a thorough set of legal arguments.  Some are based on actual Circuit Court and even W. Va. Supreme Court  opinions, and some just arguing for  defenses, and other legal contentions that are warranted by existing law or by a non-frivolous argument for extending, modifying, existing law or for establishing new law for partition of mineral tracts.  In particular it sets up statutory defenses to allotment, it points out an existing West Virginia Supreme Court case that upholds dismissal of suits for partition of mineral interests,  it sets out how “fair market value” of minerals as required by the statute cannot be established and why courthouse steps sales do not establish fair market values.  It also sets out why the term “conjointly” in an existing lease does not establish a right to pool, and why there is no implied covenant to pool in an old lease.

As always, contact us if you have questions or need further help.  And a brief telephone consult with a lawyer is free if you are a member, so you might want to join here.