Vance v. . Guy

DeviN, J. Tbe plaintiff's asserted claim of title to tbe minerals and mineral rights in tbe land described in tbe complaint having been denied by tbe verdict and judgment below, be brings tbe case here for review, assigning error in tbe trial, and particularly in tbe judge’s instructions to tbe jury on tbe determinative issue. It is admitted that by deeds or reservations in deeds tbe surface and tbe mineral rights in tbe land have been segregated. Plaintiff’s title to tbe surface rights therein are not controverted. By this action be seeks to establish bis title also to tbe mineral rights, and to recover for valuable minerals alleged to have been wrongfully removed from tbe land by tbe defendants. In tbe absence of other means of proof of title to these minerals (Mobley v. Griffin, 104 N. C., 112, 10 S. E., 142), plaintiff bases bis right to recover upon seven years’ adverse possession and user of tbe minerals and mineral rights, under color of title, as provided by tbe statute, C. S., 428. It is an established principle of law that when rights to tbe minerals in land have been by deed or reservation severed from tbe surface rights, *413 two distinct estates are created, and tbat tbe estate in tbe mineral interests, being part of tbe realty, is subject to tbe ordinary rules of law governing tbe title to real property. Tbe presumption tbat one in possession of tbe surface bas also possession of tbe minerals does not apply wben these rights have been segregated. Davis v. Land Bank, 219 N. C., 248, 13 S. E. (2d), 417; Vance v. Pritchard, 213 N. C., 552, 197 S. E., 182; Banks v. Mineral Corp., 202 N. C., 408, 163 S. E., 108; Soilman v. Johnson, 164 N. C., 268, 80 S. E., 249. Plaintiffs entry into possession of tbe land, in 1925, having been under a deed purporting to convey tbe land by definite lines and boundaries, and without reservation or exception, bis deed constituted colorable title to tbe entire interest and estate in tbe land, in accord with tbe maxim, cujus est solum, ejus est usque ad coelum et ad inferos. 25 C. J. S., 20. Tbe question then presented and sharply controverted was whether plaintiffs acts of ownership and occupancy of tbe minerals and mineral rights were sufficient to constitute adverse possession as defined in tbe law for tbe statutory period, so as thereby to vest in him a good title. What constitutes adverse possession bas frequently been considered by this Court, and tbe opinions in tbe decided cases contain comprehensive definitions of tbe meaning of tbe term in the law of real property, notably in Berry v. Coppersmith, 212 N. C., 50, 193 S. E., 3; Locklear v. Savage, 159 N. C., 236, 74 S. E., 347; Currie v. Gilchrist, 147 N. C., 648, 61 S. E., 581. Possession of real property to be adverse must be actual possession, and must be open, decided and notorious as tbe nature of tbe property will permit, indicating assertion of exclusive ownership, and of intention to exercise dominion over it against all other claimants. Tbe possession must be continuous, though not necessarily unceasing, for tbe statutory period, and of such character as to subject tbe property to tbe only use of which it is susceptible. Locklear v. Savage, supra; Davis v. Land Bank, supra. It is also well settled tbat where one enters into possession of land under a colorable title which describes tbe land by definite lines and boundaries, and occupies and bolds adversely a portion of tbe land within' tbe boun.ds of bis deed, by construction of law bis possession is extended to tbe outer bounds of bis deed, and possession so held adversely for seven years ripens bis title to all tbe land embraced in bis deed which is not actually occupied by another. Currie v. Gilchrist, supra; 1 Am. Jur., 909. Plaintiff excepted to tbe judge’s instruction to tbe jury with respect to tbe extent of tbe portion of tbe property adversely occupied and possessed under color which would be sufficient to constitute constructive possession of tbe whole, and complains tbat tbe court’s language tended to convey to tbe jury tbe impression tbat mere smallness of tbe area occupied would prevent tbe application of tbe principle of constructive possession. It *414 appears from tbe record tbat tbe court instructed tbe jury in tbis connection, if tbe possession was of a portion “so very minute and small tbat tbe true owner in tbe exercise of ordinary vigilance might remain ignorant tbat it included bis land or might mistake tbe character of tbe possession or tbe intention of tbe occupant, it might fairly be doubted tbat tbe deed should be held to extend beyond tbe actual boundaries (occupancy).” We think tbis statement of a principle of law applicable to slight and unintentional encroachment upon adjoining lands under a mistake or misapprehension as to tbe true dividing line (Currie v. Gilchrist, supra), was likely to be misunderstood by tbe jury when considered in tbe light of tbe facts of tbis case where tbe evidence tended to show continuous operation by tbe plaintiff of three or four mines or openings of comparatively small area on tbe entire tract, and as indicating tbe expression of a doubt in tbe mind of tbe court tbat such possession was in law sufficient to extend tbe possession beyond tbat actually occupied. Tbis impression was doubtless strengthened by tbe court’s final word to tbe jury, when, in response to inquiry from counsel as to tbe application of tbe rule of constructive possession to tbe mining of a portion of tbe land, be stated, “I gave what I conceived to be tbe law along tbat line. Tbat would depend upon tbe size of tbat operation even' though it were just in one part.” Also we think tbe illustration which tbe able judge gave for tbe purpose of explaining tbe legal principles involved, was susceptible of inferences as to tbe facts in tbis case beyond tbat which be intended. It was not a question of tbe extent of tbe possession but of its character. Green v. Harman, 15 N. C., 158. Tbe instruction that plaintiff must prove tbat be bad such possession as would indicate to tbe world an intention to claim tbe whole 375 acres, inadvertently overlooked tbe fact that plaintiff disclaimed title to tbe mineral rights in 68 acres embraced within,tbe bounds of tbe 375 acre tract. Under tbe circumstances of tbis case we think tbe instructions to tbe jury complained of, in tbe respect herein noted, must be held for error, and tbat tbis was sufficiently material and prejudicial to require a new trial. Tbe plaintiff’s exception to tbe admission of tbe will of George Leask as one of tbe links in defendants’ chain of title to tbe mineral interests in tbe land is without merit. Tbe will appears to have been proven in New York in tbe manner prescribed, by tbe North Carolina statutes, and tbe copy or exemplification of the will so showing, duly certified, was admitted to record in Avery County. C. S., 4152; Vaught v. Williams, 177 N. C., 77, 97 S. E., 737. Tbat tbe corporate name of defendants’ grantor was amended in accord with tbe New York statute appears from the recitals in tbe deed. *415 Defendants’ contention tbat the judgment in this case should be affirmed for the reason that plaintiff failed to make out a case of continuous adverse possession for the statutory period cannot be sustained. We think the plaintiff’s evidence, considered in the light most favorable for him, was sufficient to require submission of the case to the jury. Other exceptions brought forward in plaintiff’s assignments of error are not discussed or decided as they may not arise upon another trial. For the reasons stated there must.be a New trial.