dissenting:
I dissent not to what the majority did by reversing the summary judgment in favor of appellee, Consolidated Gas Supply Corporation, but to what the majority failed to do by not directing entry of a summary judgment in favor of appellants.
Partition by sale* is governed by W.Va. Code, 37-4-3 [1957] which provides:
When partition cannot be conveniently made, the entire subject may be allotted to any party *793or parties who will accept it, and pay therefor to the other party or parties such sum of money as his or their interest therein may entitle him or them to; or in any case in which partition cannot be conveniently made, if the interests of one or more of those who are entitled to the subject, or its proceeds, will be promoted by a sale of the entire subject, or allotment of part and sale of the residue, and the interest of the other person or persons so entitled will not be prejudiced thereby, the court ..., may order such sale or such sale and allotment, and make distribution of the proceeds of sale, according to the respective rights of those entitled.... [emphasis added]
I find it inconceivable that anyone could not perceive that a partition by sale would prejudice the appellants’ interest and I am amazed that my colleagues are taken in by appellee’s simple scheme. Appellee not only owns eleven-twentieths undivided interest in the oil and gas in question but also holds a lease granting it the exclusive right to remove the oil and gas. Cumulatively, appellants possess only a nine-twentieths interest in the oil and gas with no right of removal. The catch is that appellee, being the possessor of the exclusive right of removal, will be the only bidder at the sale and thus have the power to be judge in its own cause by setting the fair market value which, as a result, can be guaranteed to be very low. Appellee can in effect condemn the appellants’ interest and proceed to adopt elaborate new production techniques without the need to permit appellants to share in the enhanced value of their property which new extraction techniques have made possible.
It would be the most obscene casuistry to argue that the appellants may bid for the oil and gas interest as well as the appellee at any partition sale. The market value of the oil and gas interest in this case is dictated exclusively by the appellee because only appellee has the right to extract the minerals. Accordingly, any rational bid by the appellants must be dictated by their estimation of the continued rate of production by the appellee. If the appellee purchases the land from the appellants, *794the appellee may use all of the modern techniques for extracting oil from old low-production wells; however, the appellants cannot in the same way predicate their bids on the expectation of these procedures being applied because the appellee can control absolutely the rate of exploitation and can deliberately frustrate any expectation appellants may have of receiving increased profits.
This is not a case about land; it is a case about a contract interest and nothing more. The appellants cannot enter upon the land, as they do not own the surface; they cannot exploit the oil and gas, as they have completely parted with that right. Therefore, they have no more interest in the land qua land than a stockholder of Consolidated Gas Supply has in the buildings used for the corporate headquarters. The purpose of the partition statute is to avoid involuntary joint ownership of land because of the chilling effect which collective ownership has on any owner’s ability to exploit the property. Originally the concept of partition emerged as a solution to the problem of coparceners who inherited land from a common testator, but who may have hated each other.2 If the appellee could show any rational reason other than efforts for its own unjust enrichment for partition, I would agree with the majority. Unlike joint ownership of surface rights or even joint ownership of mineral rights where both parties have the right of extraction, there is no way by which appellants can interfere with appellee’s full enjoyment of both their ownership and extraction rights unless it is to demand their fair share *795of the profits. Appellee’s partition suit evinces only a type of private condemnation; it is as if a company could force a stockholder to sell a share of stock at a price completely dictated by the company forcing the sale.
This Court held long ago exactly in accord with this dissent in McMullen v. Blecker, 64 W.Va. 88, 60 S.E. 1093 (1908), a case which has never been overruled or even distinguished on any similar facts. In that case, the plaintiff possessed a ten-elevenths interest in a coal property and, as majority shareholder in a coal company, had through that company a lease to mine all the coal on the entire tract to exhaustion. The Court wisely perceived that the property sought to be partitioned had no market value whatsoever to anyone but the person seeking partition by sale and, consequently, denied partition. McMullen may be old law but it is good law and I, for one, am not anxious to eradicate good reasoning. In the present case, as in McMullen, partition by sale would only serve to make the fat goose fatter and to starve further the starving gander.
The appellants appear perfectly happy to sit quietly with their interest in these minerals and to take their chances that the appellee will extract them at a reasonable rate. They obviously expect that the appellee will ultimately apply new technology which will make their holdings more profitable, exactly the type of bet which is at the heart of the free market economy. They do not interfere with appellee’s operation of the land, the very condition envisaged by the partition remedy; they merely reduce appellee’s profit. Appellee may negotiate a sale of these mineral interests if it wishes, but it should not be permitted to condemn. How will the fair market value be ascertained in court? Who is the willing buyer? It would certainly not be I, because the appellee can totally deny me any revenue for years. Who would be the hypothetical willing seller? Not I either, because I would be unwilling to sell at any price which did not discount the potential for greater exploitation based on new technology, a fairly speculative question in the contemplation of the law of damages. Obviously, at any real sale, *796there will be but one bidder, and while appellants may be well enough capitalized to up the purchase price by bidding for the entire tract, should they win, they will in fact lose as the appellee may punish them for exercising their rights by declining to exploit any of the currently producing wells beyond the minimum necessary to maintain the lease.
An order for entry of a summary judgment in favor of appellants is the only proper disposition of this case. The reason is that by virtue of appellee’s having purchased the exclusive right to remove the oil and gas, it has placed the appellants in a position where, under W.Va. Code, 37-4-3 [1957] the appellants must, in conformity with McMullen v. Blecker, supra, be prejudiced. The Court should have ended this litigation in this case rather than permitting the litigants to flog one another to an unavailing end. The type of decision rendered by the majority is none other than a sentence to slow death by due process!
I do not address the majority’s discussion of the necessity to prove the infeasibility of partition in kind before partition by sale is permissible because partition in kind is not what appellee desires nor what appellants oppose. By eliminating the possibility of partition by sale, the controversy itself, in a legal sense, is eliminated.
At common law, the courts did not have the power to sever joint estates in land where seisin had been voluntarily accepted; however, coparceners (namely involuntary cotenants deriving title from a common inheritance) had the right to demand partition by the writ de partitione faciendá. It was not until the reign of Henry VIII that this right was extended to joint tenants, tenants in common, life tenants and other lesser estates. Stat. 31 Henry VIII, c.l; Stat. 32 Henry VIII, c. 32. See generally, G. Thompson, Commentaries on the Modern Law of Real Property, Vol. 4 § 1822 (4th Ed. 1961); Halsbury’s Laws of England, Vol. 24 §§ 742-751 (2d Ed. 1937).