BEFORE ROY NOBLE LEE, DAN LEE and ANDERSON
ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:
Clyde Ladner and nine (9) other individuals filed suit against Quality Exploration Company in the Circuit Court of Hancock County, claiming actual and punitive damages resulting from a willful trespass upon seven hundred fifty (750) acres of land owned by them. The suit was two-fold,
contending the plaintiffs were entitled to (1) surface damages and (2) sub-surface damages, which included minerals and conversion of mineral information. The lower court sustained a motion of Quality Exploration Company to dismiss the complaint on the ground that plaintiffs failed to join necessary parties.
The plaintiffs have appealed to this Court, assigning the following errors in the judgment entered by the lower court:
I. THE LOWER COURT ERRED IN ITS ORDER DISMISSING THE COMPLAINT PURSUANT TO MISS. R. CIV. P. 12 (b) (7).
II. THE LOWER COURT ERRED IN ITS APPLICATION OF MISS. R. CIV. P. 19.
III. THE LOWER COURT ERRED IN RULING THAT IT LACKED JURISDICTION TO REHEAR OR RECONSIDER THE DEFENDANT'S MOTION TO DISMISS.
The original complaint was filed by appellant Ladner but was amended to include the other parties appellants The amended complaint charged that appellee committed a surface trespass upon approximately 750 acres of land owned by the appellants for the purpose of conducting seismographic tests and caused damage to the surface of the land through the use of explosive devices and running machinery upon it; that the appellee committed a sub-surface trespass upon the property by gathering geophysical data as to the presence of oil, gas and other minerals in and under the land without permission to conduct said operations thereon; and that the appellee explored the subsurface of the land owned by appellants without authority and obtained and disseminated the information derived from such exploration to third parties, resulting in a conversion of such data and information obtained.
On June 8, 1983, appellee moved the lower court, pursuant to Rule 19, Miss. R. Civ. P., to compel joinder of necessary parties, or, in the alternative, to dismiss without prejudice, for non-joinder of said parties. Appellants argue that all co-owners of the surface land and co-tenants of three-fourths (3/4) of the mineral interests had been joined and that the twenty-five percent (25%) mineral interest holders were not indispensable. On January 15, 1985, appellee renewed its motion to dismiss the action without prejudice for non-joinder of necessary parties, and the lower court granted the motion on March 25, 1985, declaring that all owners of the
mineral interest are necessary and indispensable parties to the actions.
On April 1, 1985, appellants filed a motion to reconsider the dismissal and attached an affidavit of Honorable Gerald C. Gex, attorney, setting out that the one-fourth (1/4) mineral interest not included in the complaint is vested in at least thirty-seven (37) individuals and entitites, some of which are non-residents; that of the 37 interest holders, seven (7) are estates, with five (5) of those seven not yet opened; that of the 37 interest holders, one individual's whereabouts has not been known for six (6) years; and that the joinder of those interest holders would be" at best difficult, and in all probability at the present time would be practically impossible. "The lower court denied the motion on April 25, 1985, on two grounds, i.e., (1) that it had no jurisdiction to hear the motion, and (2) even if it had jurisdiction, the affidavit does not alter the circumstances. The appellants appeal from the order of dismissal and denial of the motion to reconsider.
Under the assignments of error, appellants contend that the lower court erred (1) in dismissing the complaint pursuant to Miss. R. Civ. P. 12 (b) (7), (2) in its application of Miss. R. Civ. P. 19, and (3) in ruling that it lacked ...