98 So. 789 | Ala. | 1924
Where the owner of the entire estate in land conveys the surface, but retains the minerals — the grantee taking possession of the land, and occupying and using it as his own under the grant, and there being no physical severance of the minerals by any one — the possession of the minerals follows the possession of the surface, and the surface owner holds possession of the minerals for the benefit of the owner in that right. Moore v. Empire Land Co.,
In such a case the surface owner may be said to be a quasi bailee of the mineral owner (Christopher v. C. A. Lumber Co., *547
Whether or not the facts in this case are sufficient to show an ouster or disseisin of James Armstrong, and his privy successors in estate, by his cotenant Shelton, and Shelton's predecessors and successors in estate (see Fielder v. Childs,
It is certain, we think, as the evidence conclusively shows without dispute, that Shelton and his privies in estate have had such a possession and exclusive enjoyment of the land for more than 20 years, without any recognition of an interest in Armstrong or his successors, and without any assertion of right by them, as creates the presumption of a grant from him or them, and works an extinction of his or their title, under the doctrine of prescription and repose, notwithstanding the relationship of tenancy in common with Shelton and his privies in estate. Miller v. Vizzard, etc., Co.,
The application of the foregoing principles to the undisputed facts of the case leads to the conclusion that the defendant was entitled to the general affirmative charge, for the refusal of which the judgment must be reversed.
Defendant's demurrer to count 2 of the complaint was well taken. A complaint in statutory ejectment must allege that the defendant entered upon the premises and unlawfully withholds and detains the same. Code 1907, § 3839; Bush v. Glover,
It is to be observed also that, even had plaintiff showed a right to recover, his interest appeared to be only one-tenth of one-third of one-fourth, which is one one hundred twentieth of the whole. As against a stranger to the title he could have recovered the entire estate for the benefit of himself and his cotenants. 19 Corp. Jur. 1216, § 317; Hooper v. Bankhead,
But as against a cotenant his right to recovery is limited to his own moiety of the estate; the effect of the judgment being merely to let him into joint possession. 19 Corp. Jur. 1216, § 317; Hooper v. Bankhead, supra.
The instruction given at plaintiff's request should therefore have limited his recovery to a one hundred twentieth part instead of a one-twelfth part, and, as given, the instruction was erroneous.
Numerous other assignments of error are presented, some of which are clearly meritorious, but we deem a decision of them unnecessary.
The judgment will be reversed, and the cause remanded for another trial.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.