5 Pa. Super. 124 | Pa. Super. Ct. | 1897
Opinion by
This was an action of trespass for mining coal. As the case was submitted to the jury it was made to turn on the question of the plaintiffs’ title by adverse possession for twenty-one years immediately prior to the commission of the alleged trespass in 1895. The defendants’ contention was, in effect, that in order to prove title in that way it was incumbent on the plaintiffs to show such possession for twenty-one years prior to January 7, 1874, the date of the coal lease to E. W. Giddings from John Ross and Susan F. O’Connor, the then owners of
That minerals beneath the surface of a tract of land may be conveyed by deed, distinct from the right to the surface, is, of course, unquestioned. After severance of the surface from the underlying strata, whether by reservation or by express grant, the mineral right is an independent interest in land; it forms a distinct possession; is held upon a distinct title; and is as much the subject of sale, devise or inheritance and of separate taxation and incumbrance as the surface. The technical words, “ grant, bargain and sell,” or the like, are not necessary to the creation of a separate estate in the coal, provided the intention to sell the coal is manifest; and it is now too well settled to admit of argument, that an instrument which is in terms a demise of all the coal in, under and upon a tract of land, with the unqualified right to mine and remove the same, is a sale of the coal in place: and this, too, whether the purchase money stipulated for is a lump sum or is a certain price for every ton mined, and is called rent or royalty: Sanderson v. Scranton, 105 Pa. 469; R. R. Co. v. Sanderson, 109 Pa. 583; Montooth v. Gam
But it is to be observed that there is no evidence, at least none was admitted on the trial, that E. W. Giddings ever took actual possession under his lease. We have, then, the simple question whether the mere recording of a conveyance of the coal stops the running of the statute of limitations in favor of one in the actual, adverse and exclusive possession of the land under color of title-at the time the conveyance was made. If it were a conveyance of the surface the question would be free from difficulty, and would require no discussion. Why should it be held that the mere recording of a conveyance of the coal has a different effect upon the continuity of the possession of the holder of the adverse title? We can discover no satisfactory reason for so holding. The cases do indeed decide that where, by deed, there has been a severance of the right to the surface from the right to the underlying coal, the owner of the minerals will not lose his right or his possession by any length of nonuser. And in such a case the owner or subsequent occupier of the surface can acquire no title by the statute of limitations to the minerals by his exclusive and continued occupancy and enjoyment of the surface merely: Seaman v. Vawdrey, 16 Ves. 390; Caldwell v. Copeland, 37 Pa. 427; Armstrong v. Caldwell, 53 Pa. 284; Phœnix Iron Co. v. Lewis, 7
As between the parties to the instrument, and their privies, a conveyance of the underlying coal — the grantor retaining the surface — effects severance in title; under our statute the re
This conclusion renders separate discussion of the several assignments of error unnecessary.
Judgment affirmed.