Vandegrift v. Southern Mineral Land Co.

ANDERSON, J. It is well settled by the decisions of this court that under the statute authorizing a bill in equity to quiet the title to land the complainant must have the quiet and peaceable possession, actual or constructive, as distinguished from a scrambling or disputed possession.—Randle v. Daughdrill, 142 Ala. 490, 39 South. 162. The complainant did not show an actual possession of the land in question, but relies upon constructive possession, Avhich the law attaches 4to the legal title, in the absence of an actual possession by any one else. The evidence shows that these respondents were in the actual possession of the land when the bill was filed, holding under their ancestor, C. C. Vandegrift, and who acquired it under a mortgage from one “Thrasher,” and Avhich said mortgage purports to convey the entire estate and not the mere surface. The presumption is that one who has possession of the surface of the land has possesion of the subsoil also.—1 Cyc. 994. And this presumption is fortified Avhen he goes into possession under an instrument which attempts ' to convey the entire estate. It was therefore incumbent upon the complainant to shoAV that the possession of the respondents was confined to the surface, and did not extend to the minerals, and, to do this, it has attempted to show a previous seArerance of the mineral from the surface, or vice versa. The deed from Lolly to the Shelby Company conveying other land, and reciting that the company had conveyed the surface right in this land to him, did not operate as a severance per se, and while it may have been an evidential fact, binding upon those holding under him, but which we need not decide, it was not conclusive, as he may have already claimed the mineral, and this may have merged the two. On the other hand, this complainant is in no position to claim that there was a severance [316] growing ont of the transaction between Lolly and the Shelby Company, as we find the Shelby Company ignoring all idea of a severance, by conveying the entire estate to De Bardelaben in 1882, years after the Lolly transaction, and, in fact, after Thrasher had mortgaged it to Vandegrift. Indeed, none of the conveyances connecting the Shelby Company with this complainant in any way severs the mineral from the surface, but each of them purports to convey the entire estate. It would be inconsistent to invoke an estoppel against these respondents by a recital in a deed from Lolly to the Shelby Company and.at the same time permit the complainants to repudiate and ignore the fact that every conveyance under which it holds from the Shelby Company down conveys the entire estate, and ignores every idea of a severance. It is true there was some proof that Thrasher and Wallace claimed only the agricultural interest in the land. Whether this would amount to a severance or not we do not decide, but, if it did, it is a disputed fact, not only by some of the witnesses, but by the mortgage from Thrasher to Vandsgrift, and by. the deeds under which the complainants claim the land. The complainant cannot maintain this bill as to the land in question, for the reason that it was not in possession of the surface or the mineral when the bill was filed. Moreover, the proof shows that the respondents have been in the open, adverse, and continuous possession of the land by themselves and C. C. Vandegrift over 10 years under color of title, and have as against this complainant an absolute title to the land — surface and mineral. The decree of the chancery court is affirmed as to all the land, save in holding that respondents had only an agricultural interest in the land described in the decree, and is reversed in so far as it adjudges the com [317] plain ant as owner of the minerals or any right thereto whatsoever. A decree is here rendered adjudging the respondents the absolute owners, as against this complainant, of all the lands in which they were decreed to have a mere surface interest. The complainant will pay the cost of the court below as well as the cost of this appeal. Affirmed in part, and reversed and rendered. Dowdell, C. J., and Sayre and Evans, JJ., concur.