I concur in the result announced, but do not thereby
commit myself to the theory that the penalty provided for in Code, 37-5-1 may be imposed where there is a dispute as to the location of a line separating property, the whole of which was formerly held by the parties to the litigation as joint tenants, a relationship which, under the circumstances of this case, may, in a technical sense, be said to have existed at the time of the encroachments complained of; for whether there ever was a meeting of the minds of the joint tenants as to the partition may be questioned. As presently advised, I am inclined to the belief that where there has been an attempted partition, and one joint tenant has removed coal from a part of the tract, under the belief entertained in good faith, and based on his understanding of the attempted partition, that he was operating within the boundaries of the tract assigned to him, and it afterwards develops that he was beyond such boundaries, he can only be held to account for the value of the coal removed, and any damages occasioned by the technical trespass, and that the case is not such as justifies the imposition of penalties. I think the fact of the joint tenancy, and the further fact that it may reasonably be claimed that it has not been terminated, distinguishes this case from the ordinary case of a disputed line as between adverse claimants. I think, also, that the rule announced is not in harmony with the decision in Clear Fork Coal Co. v. Anchor Coal Co., 105 W. Va. 570,144 S.E. 409, wherein this court said:
"Penal statutes are strictly construed. The penalty is never imposed, unless the act for which its infliction is attempted, is within both the spirit and the letter of the statute."
I am authorized to state that Judge Hatcher concurs in this note.