52 W. Va. 181 | W. Va. | 1902
Lead Opinion
By decree of the circuit court of Harrison County entered on the 27th day of May, 1890, in the case of W. J. Deison and John W. Monroe against Cruger W. Smith and others for the partition of three hundred and ninety-seven acres of land, there was assigned to said Deison and Monroe, the plaintiffs, in fee simple and in severalty, a tract of one hundred and eighty acres known as lot Ho. 1, in the partition. On the 20th day of August, 1891, John W. Monroe and wife in consideration of
Counsel for the appellants insists that the word surface or a conveyance of the surface of the land carries with- it every part of the land not specifically excepted, and liles a very ingenious as well as able brief in support of his position; but it is well settled that the different materials which go to malee up land may be severed by reservation or express grant. ' In Anderson’s Die. of Law at page 677, it is said: “The law recognizes horizontal divisions of land. The severance of the surface from the underlying strata may be created either by reservation or express grant, as if the mineral right is an independent in-1 crest. Thus one person may own the iron ore, another the coal, another the limestone, and another the petroleum and another the surface.” Caldwell v. Copeland, 37 Pa. 427. The very fact of conveying tho surface specifically carries with it the idea of an express grant alone of the surface and severs it from every other material composing the land. A conveyance of any specified interest in the land, such as the coal or the limestone or-the iron ore or the surface, is an express grant and severs such interest from every other part of the land, and the title to all the residue remains in the grantor just as any part cf the land would, if reserved specifically in a deed conveying the land. In Knight v. Coal and Iron Co., 47 Ind. 105, 17 Am. Reports 692, and at page 695 it is said in the opinion: “The owner in fee simple has the power to sell and convey his mines or any stratum by deed or grant so .as to create one free
In Coal Co. v. Mellon, 152 Pa. St. 286, Chief Justice Pax-son, in delivering the opinion of the court, at page 295, says: "The mining of coal and other minerals is constantly developing new questions. Formerly a man who owned the surface owned to the eetner of the earth. Now the surface of the land may be separated from the different strata underneath it and there may be as many different owners as there are strata. Lillibridge v. Coal Co., 143 Pa. 293. The difficulty is to so apply the law as to give each owner the right to enjoy all his property or strata without infringing upon the right of other owners, where the owner of the surface has neglected to guard his own rights in the deed by which he granted the lower strata to other owners/’ Justice Paxson further says: ' "In the earlier days of the common law the attention of buyers and sellers, and, therefore, the attention of the courts, was fixed upon the surface. He who owned the surface owned all that grew upon it and all that was buried beneath it. His title-extended upward to the clouds and downward to the earth’s center. The value of his estate lay, however, in the arable qualities of the sur
There is no error in said decree and the same will be affirmed.
Affirmed.
Dissenting Opinion
(dissenting) :
I cannot concur in the decision- in this case for the reason that th effect of it is to render the plaintiff’s estate voidable at the instance of those who are held to own all the strata underneath the surface with the implied right to .enter and remove
The case should be reversed and 'justice done between the parties.