This suit was instituted by E. J. Thomas, trustee, Charles B. Franks, C. A. McIntire, A. C. Stickel and E. J. Thomas, as owners of the coal on and underlying a large tract of land in Kanawha county, to enjoin the defendants, William Haynes, Nonora O'Connor, J. G. Carpenter, Rufus Haynes, Daniel *Page 530 Haynes, James Holmes, W. C. Young, America Honaker, Jessie Jordon, Julia C. Whittington, Edwin Honaker, L. C. Harper and William Tate, from mining or removing any of said coal, and to cancel the deeds under which the defendants assert title to parts thereof in so far as any of said title papers constitutes a cloud upon the title of the plaintiffs. The defendants, respectfully, assert title to separate parcels of said coal by adverse mining, under color of title, for ten years.
On a former appeal, a decree of the lower court, dissolving a temporary injunction, was reversed and the cause remanded,100 W. Va. 478. Thereafter, the parties, by counsel, agreed to a dismissal of the suit as to any of the defendants establishing color of title to the interest in the coal which he or she claimed. The decree, complained of, was entered pursuant to said agreement. After reciting the introduction by the defendants, J. G. Carpenter, America Honaker, Edwin Honaker, Willis Tate, Rufus Haynes, James Holmes, Daniel Haynes, Jessie Jordon, W. C. Young, John O'Connor, L. C. Harper and Julia C. Whittington, of the title deeds to the interest in the coal asserted by each of them and of evidence by the plaintiffs, it decrees that each of such defendants has color of title to the interest in the coal claimed by him or her and dismisses the bill as to them.
The plaintiffs have appealed without making the evidence upon which the decree complained of is based a part of the record. As the decision is presumed to have been based upon sufficient proof, the appeal must be dismissed except as to the defendant, J. G. Carpenter. Where the contrary does not appear from the record, by bills of exception or otherwise, the judgment or decree of a court of competent jurisdiction will always be presumed on appeal or writ of error to be right and founded on sufficient evidence. Snodderly v. Fairmont, 23 W. Va. 472.
It appearing from the title papers of J. G. Carpenter, exhibited in the record of the first appeal, that he does not have such color of title to the interest in the coal claimed by him as could have ripened into good title by adverse mining prior to the institution of the suit, the decree, in so far as it dismisses *Page 531 him from the bill, is reversed; but in all other respects affirmed.
Reversed in part; affirmed in part.