67 So. 403 | Ala. | 1914
Lead Opinion
This suit involves the title to the mineral rights in the S. E. % °f S. W. %, section 18, township 14, range 9, Walker county, Ala.
This opinion is written as expressive of the views of the members of this court who appear as concurring therein; and, as the .case must again be tried, we deem it well to announce the following propositions of law, which appear to have applicability to the facts of the case as they are disclosed by the bill of exceptions in this record:
In the case of Vidmer et al. v. Lloyd, 184 Ala. 153, 63 South. 947, this court said: “It may be true that defendant announced that he did not claim through Adele Babby; yet there was evidence from which the jury could infer that he did, * * * and, if such was the case, he is estopped from denying her title.”
' See further, on this subject, Pendley v. Madison, 83 Ala. 484, 3 South. 618; Lewis v. Watson, 98 Ala. 480, 13 South. 570, 22 L. R. A. 297, 39 Am. St. Rep. 82; Ware v. Dewberry, 84 Ala. 568, 4 South. 404; Houston v. Farris, 71 Ala. 570; Tenn. & Coosa River R. R. Co. Co. v. East Ala. Ry. Co.; 75 Ala. 516, 51 Am. Rep. 475.
• (5) In other words, after a severance of the minerals in suit from the surface, the acquisition of the title
“Under tbe authorities, it is essential, to effect adverse possession of tbe minerals, after severance, in title, from tbe surface, that tbe adverse claimant do some act or acts evincing a permanency of occupation and use, as distinguished from acts merely occasional, desultory, or temporary — acts suitable to tbe enjoyment and appropriation of tbe minerals so claimed, and hostile to tbe rights of tbe owner.” — Hooper v. Bankhead, 171 Ala. 633, 54 South. 549; Gordon v. Park, 219 Mo. 600, 117 S. W. 1163; Gill v. Fletcher, 74 Ohio St. 295, 78 N. E. 433, 113 Am. St. Rep. 962; Algonquin Coal Co. v. Northern Coal & Iron Co., 162 Pa. 114, 29 Atl. 402; Huss v. Jacobs, 210 Pa. 145, 59 Atl. 991; Armstrong v. Caldwell, 53 Pa. 284; Delaware & Hudson Canal Co. v. Hughes, 183 Pa. 66, 38 Atl. 568, 38 L. R. A. 826, 63 Am. St. Rep. 743; Plant v. Humphries, 66 W. Va. 88, 66 S. E. 94, 26 L. R. A. (N. S.) 558; J. R. Crowe Coal & Mining Co. v. Atkinson, 85 Kan. 357, 116 Pac. 499, Ann. Cas. 1912D, 1196; Catlin Coal Co. v. Lloyd, 180 Ill. 398, 54 N. E. 214, 72 Am. St. Rep. 216.
Tbe proposition under discussion seems to be so well established that it appears needless to cite tbe above authorities to sustain it. Tbe principle is, however, of importance in this state, and for that reason tbe writer of this opinion has above perpetuated some of tbe leading authorities upon tbe subject, and which are cited in the numerous briefs on file in this case.
At the time John Manasco' gave this land to his daughter, he was in possession of the land, and there was evidence that he bought the land from said John C. Myers, although the record fails to show that there was a deed from Myers to Manasco evidencing the purchase. On this subject J. K. P. Manasco, a brother of Sarah Cox, testified as follows: “John Manasco raised me. I knew John C. Myers. He lived southwest of where I was raised prior to the Civil War. I went over the ground with Mr. Phil and pointed out the place where the house was, the old trees, and the farm. There was more than one field; one was this side of where the old
The evidence further shows that Sarah Cox and her husband, J. E. Cox, sold the mineral interest in the said land to the Georgia Pacific Railway Company, by a deed dated May 2, 1883, and that, by an unbroken chain of title, the defendant claims and owns the mineral interest in the land which was derived by said Georgia Pacific Railway Company by the deed made to said company by said Sarah Cox on May 2, 1883. The evidence further shows that on the 21st day of January, 1888, the heirs of said Sarah Cox filed their petition' for a sale of said S. E. % of S. W. 14, section 13, township 14, range 9, Walker county, except the coal, iron ore, and other minerals therein, for division, and that D. J. Townley appeared at the sale and bought
The above being the undisputed testimony, the defendant, for the purpose of showing that the plaintiff and the defendant claimed through a common source of title, viz., Sarah Cox, offered in evidence the following:
(1) A deed from C. L. Cunningham, commissioner appointed by the probate court to- convey the title of the heirs of Sarah Cox to said land to- the said D. J. Townley, the purchaser at said sale for division. This deed bears date October 2, 1889, and was duly recorded in record of deeds of Walker county on October 2, 1889.
(2) A deed from D. J. Townley and wife to R. M. ToAvnley to said land, dated January 3, 1889, and acknoAvledged in December, 1890. The. plaintiff claimed title to the land through a deed which whs made to him 'by said R. M. Townley, dated March 21, 1896.
Under the authorities cited under subdivision 2 of this opinion, the above deeds were relevant for the purposes for which they Avere offered, and the trial court committed reversible error in sustaining the objection of the plaintiff to their introduction in evidence.
Fifth. In addition to the above, the evidence in this case shows, without dispute, that Manasco bought this land from J. C. Myers in 1858, probably about the time Myers obtained his patent to the land from the federal government. Manasco- then went into its possession, claiming it as his own, and finally gave it to his
For this reason, as well as for the reasons set forth in the first subdivision of this opinion, in our opinion the defendant, under the evidence as it exists in this record, was entitled to affirmative instructions in its behalf.
Reversed and remanded.
Dissenting Opinion
(Dissenting.) — This record was originally assigned to me, and I wrote an opinion affirming the judgment. On application for a rehearing by the whole court, the judgment of affirmance was set aside, and one of reversal entered; and Mr. Justice de Graffenried was appointed to write an opinion for the majority.
I concur in the reversal. I have become convinced, on further consideration, that it was reversible error to decline to allow the defendant to introduce the commissioner’s deed to D. J. Townley and the deed of D. J. Townley to R. M. Townley. While the trial court evidently acted on the theory that plaintiff did not claim title through Mrs. Cox, and it was not shown that Mrs. Cox had title when she conveyed the mineral right to the Georgia Pacific Railroad Company, and therefore her deed did not operate as a severance of the minerals from the surface, I now think that each of these questions was for the jury, and not for the court, and that the defendant was entitled to have the jury consider these deeds in connection with all the other evidence.
I cannot, however, agree to the proposition that the evidence in this case shows that Mrs. Cox had title to the lands when she .conveyed. The evidence conclusively and without dispute shows that, if she acquired the title, it was by adverse possession, and not by deed. The evidence likewise fails to show that her possession was continuous, but, on the contrary, shows that- there were several breaks therein, and that at no time was there ten years’ continuous possession. The evidence, as I •read it, is in dispute as to whether her grantor, her
How there is any reason for the application of the doctrine of the presumption of a deed from the patentee to Manasco, I cannot understand. If Manasco had been in possession for 20 or 30 years, under his contract of sale, the execution, or the existence of a deed, might then be presumed; but the evidence is without a dispute that he was not so in possession for the length of time necessary to raise the presumption of a deed. If a deed from the patentee to any one is to be presumed, it is either to Mrs, Cox or to the plaintiff. The evidence, however, affirmatively shows that he did not convey to Mrs. Cox nor to her father.
If it be conceded that Mrs. Cox had title to the land when she attempted to convey the mineral right to the Georgia Pacific Railroad Company, then, of course, this worked a severance of the two estates; and, if plaintiff claimed through Mrs. Cox, his possession of the surface was not possession of the mineral, and of course was not adverse; but, if Mrs. Cox had no title, her deed did not and could not operate as a severance. A stranger to a title cannot create a severance by conveying the mineral or surface right. It requires the owner of the title to convey in order that his deed may operate as a severance. Moreover, when there is such a severance, it is binding only on the parties to' the conveyance and their privies. It is not binding or effective upon strangers to the title of the owner who severed ; but of course there must be adverse possession of both estates, to defeat the title of the true owner who1 severed the two estates. The two estates, after severance, are as distinct and separate as if the grantor had owned an -80-4cré tract and conveyed one 40 to A. .and 'the other to B. Possession of one 40 after this severance
In my judgment, under the holding in the above case, one who has no title may convey a title to the mineral, against the true owner, by conveying the minerals to one person and the surface to another, if the grantee of the surface should ever thereafter convey to the owner or to any one in his chain of title, and even though thé owner did not claim under such chain of title but claimed against. I cannot make a man claim title through me by conveying his own land to him, even though he accept the deed and put it on record. This is only a circumstance tending to show that he does claim title through me.
There was no proof in this case that the plaintiff or his grantor claimed title or right through Mrs. Cox. It was only shown that the grantor of plaintiff’s grantor bought at a judicial sale, which sale passed the title of Mrs. Cox to the surface. I do not see how the court can say, as a matter of law, that Mrs. Cox had title to the land when she conveyed the minerals or of the surface when she died. If she had such title, it was a question of fact for the jury and not of law for the court.
I likewise cannot see how the court can say, as a matter of law, that plaintiff claimed title through Mrs. Cox, when he, his counsel, and the trial court say he
Of course I recognize the proposition that prior possession alone will support or defend an action of ejectment ; but it will only do so against a mere naked trespasser or one who cannot show a better title; it will not he effective against the true owner nor even against one, claiming under color of title, having held adversely for ten years. The evidence in this record is without dispute that plaintiff had acquired title to' the land in question, surface and mineral, by adverse possession, if there was no severance of the two estates, or if the plaintiff was not bound by the severance. I cannot agree that the record in this case shows conclusively that Mrs. Oox had any title to the surface or mineral when she attempted to convey the minerals. I think it is conceded that her grantor had no legal title, and that title only can prevail in this suit. I think it also clearly appears (hut not conclusively) that her possession was not continuous, so as to ripen into title. If she did not have the legal title when she conveyed to the Georgia Pacific Railroad Company, then her deed could not operate as a severance. Unless the plaintiff claimed title through her, he was not estopped from disputing her title. These questions were, in my judgment, for the jury, and not for the court; and the record shows that the jury found the facts in favor of the plaintiff.
The case most relied upon by appellant is that of Canal Co. v. Hughes, 183 Pa. 66, 38 Atl. 568, 38 L. R. A. 826, 63 Am. St. Rep. 743. It is probable that this case may uphold the contention of the appellant; but,
Mr. Lindley, in his recent edition of his work on Mines (volume 3, § 812, pp. 2002, 2003), says: “The doctrine of severance of title has been carried by the Supreme Court of Pennsylvania to what seems an unwarrantable conclusion.”
“We submit that severance of title, as known in the law, cannot exist where the surface and mineral title reside in the same individual. It would be, on its face, a contradiction of terms.” •
“The decision of the Pennsylvania court would therefore seem to have the effect of allowing an actual possession to be overcome by a constructive possession.”
It would be an anomaly to alloiv strangers to a good chain of title to make the holders under that chain claim under another and an imperfect title by making deeds to them and having the same recorded, against the wish or will of the holders of the good title. So far as this record shows, that might be the result of making Boshell claim under the Cox chain of title. Surely a stranger to a title cannot create a severance by conveying that which he has not, and thereby defeat the title of the true owner and his grantees.
I desire to say that I do not disagree to any proposition of law announced in the opinion. Each of these I consider well settled and well stated; but I cannot agree to the application of the principles to the case made by this record, for the reason above stated.