Wright v. Martin

149 Ga. 777 | Ga. | 1920

George, J.

(After stating the foregoing facts.) In the view we take of this case, the answers made by the jury are contrary to the evidence and without evidence to support them. A witness for the defendants, Ditt Watts, testified that he and Wright made an agreement to mine the iron ore, prior to the purchase of the land from Martin; that he had had twenty or thirty years experience in the mining business, and was familiar with the ore formations in Walker county; that he had examined the land in question and had estimated the value of the minerals therein, especially the iron ore; that about two thirds of the lot contained iron ore; that the ore would run between forty and lorty-five per cent.; and that the minerals on the lot were worth between three and four thousand dollars. R. M. W. Glenn was examined as a witness for the defendants, and he testified that iron ore was to be found on fifty to sixty acres of the land in question; that some of the ore could be profitably mined; and that on December 10,1915, the land with the mineral rights was worth five or six thousand dollars, and without the mineral rights the land was worth four or five hundred dollars. Another witness, J. II. Hill, substantially corroborated the evidence of Watts and Glenn. It is true that-Glenn testified that he was not an expert miner; and it is also true that Hill testified that as a miner he would not purchase the mineral interest in the lot upon condition that the timber and cultivatable lands were not to be injured, used, or molested. As the witness himself expressed it, “It would not be as valuable to me. I would not take it. As a miner, I would not take a sale of land that way. With that clause in it, as a miner I would not take it.” The evidence for the defendant in detail gave the location of the lot of land in question; showed its distance from the railroad, the value of iron ore at the mine, its-value on board the cars, and the cost of mining and loading the sainé. The only evidence offered by the plaintiff for the purpose of showing that the iron ore and other metals, minerals, and clays on the lot of land in question were of no value, was the testimony of John Knox. He testified to the thickness of the iron ore at certain openings on the lot; and with respect to the value of the ore he testified as follows: “It could be worked to some extent on the south hill side, although the hill climbs up pretty rapidly, and would be very expensive. That’s about all they would have, would be a stripping proposition; it is so narrow it could not be mined by tunnels, etc., under ordinary conditions, Ditt Watts showed me the openings that have been made up there. Whether that lot of land would be a profitable proposition would depend on circumstances. There could be some stripping done on the south hill. I would say that ore could be stripped back until they get off about a ten-foot cover of slate over it, and I don’t know the area that would be covered by that, don’t know just where the line runs. The ore runs or dips slightly to the south. It apparently, where I saw it, runs almost level, east and west, and dipping slightly to the south. If that hill is in the southwest corner of the lot, the ore would soon run off of the lot, on to other property. . . Nobody can tell how much ore there is under there until they actually go in there and mine it.”

There was iron ore on the land. This fact was undisputed. This ore had some value. According to the recitals in the plaintiff’s deed to H. P. Lumpkin, he received $300 in money for the mineral interest in the land, more than a quarter of a century before the execution of the bond to the defendant. We are forced to the conclusion that the evidence demanded a finding that the land, by reason of the previous conveyance of the mineral interest and rights therein, was less valuable than it would have been if such interest and rights had not been sold. For reasons that are obvious, the land was rendered less valuable by the grant of the permanent easement to the telephone company. Under the bond for title as it stood, the defendant, or his assigns, was entitled to an absolute or fee-simple estate in the land. “An absolute or fee-simple estate is one in which the owner is entitled to the entire property, with unconditional power of disposition during his life, and descending to his heirs and legal representatives upon his death intestate.” Civil Code, § 3657. Under our code, real estate “includes all lands and the buildings thereon, and all things permanently attached to either, or any interest therein or issuing out of or dependent thereon. The right of the owner of lands extends downward and upward indefinitely.” Civil Code, § 3617. A conveyance of the absolute or fee-simple estate in a tract of land would of course carry with it all mines, minerals, and clays in and under the same. An absolute estate in land carries with it the exclusive and unrestricted right to occupy, use, and dispose of the same. The right to possess, use, and to exclude every one else from interfering with a tract of land is not only a right, in all circumstances affecting the value of the land, but it is of the essence of ownership itself. It is precisely the right of exclusive occupancy and use which the plaintiff can not convey to the defendant. The value of the right is not merely nominal, and can not, under the circumstances of this case, be so considered.

We have not dealt with other assignments of error madq in the bill of exceptions; and we are not to be understood as holding that the jury might not have been authorized to return a verdict for the plaintiff for the balance of the purchase-money, upon other issues in the case. None of the other issues were passed upon by the jury. We have, however, examined the record for the’purpose of ascertaining whether a judgment or decree for the plaintiff was demanded by the evidence on any of such issues; and while we do not pass upon the questions of the sufficiency of the evidence to authorize a finding for the plaintiff upon any of such issues, we are of the opinion that the evidence on none of the other issues demanded a verdict or judgment for the plaintiff. Since, therefore, the answers to the only questions passed upon by the jury are contrary to the evidence and without evidence to support them, the court erred in overruling the motion for new trial.

Judgment reversed.

All the Justices concur.