Birmingham Fuel Co. v. Boshell

de GRAFFENRIED, J. This suit involves the title to the mineral rights in the S. E. % °f S. W. %, section 18, township 14, range 9, Walker county, Ala. This opinion is written as expressive of the views of the members of this court who appear as concurring therein; and, as the .case must again be tried, we deem it well to announce the following propositions of law, which appear to have applicability to the facts of the case as they are disclosed by the bill of exceptions in this record: (1, 2) First. “As against a trespasser, a plaintiff in ejectment, or the statutory action in the nature of ejectment, may recover on proof of prior possession, al — 599 — though, he was not in the actual possession when the defendant entered; and the defendant cannot defeat his right to recover by proof of an anterior possession by a third person, with which he does not connect himself.” — L. & N. R. R. Co. v. Philyaw, 88 Ala. 264, 6 South. 837. (3) Second. “Where the defendant denies that he claims from the same source as the plaintiff, the latter may show that he does so claim, by introducing in evidence the various deeds connecting him with such alleged common source; and it is no objection to the exercise of this right that the evidence offered proves the defendant’s title to be worthless.” — Bradley v. Lightcap, 201 Ill. 513, 66 N. E. 546; McWhorter v. Heltzell, 124 Ind. 129, 24 N. E. 743; Warville on Ejectment, p. 275, § 265. In the case of Vidmer et al. v. Lloyd, 184 Ala. 153, 63 South. 947, this court said: “It may be true that defendant announced that he did not claim through Adele Babby; yet there was evidence from which the jury could infer that he did, * * * and, if such was the case, he is estopped from denying her title.” ' See further, on this subject, Pendley v. Madison, 83 Ala. 484, 3 South. 618; Lewis v. Watson, 98 Ala. 480, 13 South. 570, 22 L. R. A. 297, 39 Am. St. Rep. 82; Ware v. Dewberry, 84 Ala. 568, 4 South. 404; Houston v. Farris, 71 Ala. 570; Tenn. & Coosa River R. R. Co. Co. v. East Ala. Ry. Co.; 75 Ala. 516, 51 Am. Rep. 475. (4) Third. “After severance of the mineral in situ from the surface, the possession of the latter is not possession of the former. The effect of the severance is to create two closes adjoining but separate.” — Hooper v. Bankhead, 171 Ala. 632, 54 South. 549. • (5) In other words, after a severance of the minerals in suit from the surface, the acquisition of the title — 600 — to the surface by adverse possession of tbe surface does not result in tbe acquisition of title to tbe mineral interests in the land. To acquire, by adverse possession, tbe title to tbe mineral interest so severed, there must be an actual taking or use under claim of right of tbe minerals from tbe land for tbe period necessary to affect tbe bar. “Under tbe authorities, it is essential, to effect adverse possession of tbe minerals, after severance, in title, from tbe surface, that tbe adverse claimant do some act or acts evincing a permanency of occupation and use, as distinguished from acts merely occasional, desultory, or temporary — acts suitable to tbe enjoyment and appropriation of tbe minerals so claimed, and hostile to tbe rights of tbe owner.” — Hooper v. Bankhead, 171 Ala. 633, 54 South. 549; Gordon v. Park, 219 Mo. 600, 117 S. W. 1163; Gill v. Fletcher, 74 Ohio St. 295, 78 N. E. 433, 113 Am. St. Rep. 962; Algonquin Coal Co. v. Northern Coal & Iron Co., 162 Pa. 114, 29 Atl. 402; Huss v. Jacobs, 210 Pa. 145, 59 Atl. 991; Armstrong v. Caldwell, 53 Pa. 284; Delaware & Hudson Canal Co. v. Hughes, 183 Pa. 66, 38 Atl. 568, 38 L. R. A. 826, 63 Am. St. Rep. 743; Plant v. Humphries, 66 W. Va. 88, 66 S. E. 94, 26 L. R. A. (N. S.) 558; J. R. Crowe Coal & Mining Co. v. Atkinson, 85 Kan. 357, 116 Pac. 499, Ann. Cas. 1912D, 1196; Catlin Coal Co. v. Lloyd, 180 Ill. 398, 54 N. E. 214, 72 Am. St. Rep. 216. Tbe proposition under discussion seems to be so well established that it appears needless to cite tbe above authorities to sustain it. Tbe principle is, however, of importance in this state, and for that reason tbe writer of this opinion has above perpetuated some of tbe leading authorities upon tbe subject, and which are cited in the numerous briefs on file in this case. — 601 — (6) Fourth. The undisputed evidence in this case shows that J. 0. Myers obtained a patent from the United States government to the lands in which the mineral interests are claimed by the defendant, on March 1, 1858. On December 13, 1861, John Manasco conveyed by warranty deed to Sarah Cox the said lands. It appears that Sarah Cox was the daughter of John Manasco, and that he gave her the land, and that he put her in possession of it prior ■ to the execution of his deed to her. On this subject the husband of Sarah Cox testified as follows: “Sarah Cox and I were married before the above said deed was executed. My best judgment is that we moved on the place before the deed was made to the above-described land. My wife claimed to be the owner. My best judgment and recollection is we lived on this land as our home until 1862 or 1863, when I went to the war, when my wife moved down to her father’s. After the close of the war, Sarah Cox, my wife, and I moved back on this land and lived there until 1867, when we again left the place and then we, after a year’s absence, moved back home; that is, on the land you are questioning me about. We then lived on this land until 1874, when we moved to Jasper, Ala.” At the time John Manasco' gave this land to his daughter, he was in possession of the land, and there was evidence that he bought the land from said John C. Myers, although the record fails to show that there was a deed from Myers to Manasco evidencing the purchase. On this subject J. K. P. Manasco, a brother of Sarah Cox, testified as follows: “John Manasco raised me. I knew John C. Myers. He lived southwest of where I was raised prior to the Civil War. I went over the ground with Mr. Phil and pointed out the place where the house was, the old trees, and the farm. There was more than one field; one was this side of where the old — 602 — house was, in the S. E. 14 of the S. W. % of section 13, of about eight or ten acres. I am older than Dr. John Manasco. I helped plow the S. E. % of the S. W. %, section 13, when it wes being cultivated by John Manasco. He first took possession, my recollection is, about 1858 dr 1859. I could not swear to the date; .it was so long ago. Sarah Cox moved on some part of the land before the war. Prior to the time she moved on it, the land had been in cultivation by John Manasco'. There were ten acres said to be inclosed. There was a little piece of woods in there that was not cultivated. Sarah Cox moved back on the land after the close of the war. I was gone eight years, but Sarah lived on that land after the war. I don’t know how long, because I was away. I had a favorite mule they let go in part payment for the land purchased by John Manasco from J. C. or John C. Myers. I don’t exactly remember the date. We tended it about three years before Sarah Cox moved on it, and that would make it about 1856 or 1857. We cultivated it the next year. John Myers moved to Moss Creek.” The evidence further shows that Sarah Cox and her husband, J. E. Cox, sold the mineral interest in the said land to the Georgia Pacific Railway Company, by a deed dated May 2, 1883, and that, by an unbroken chain of title, the defendant claims and owns the mineral interest in the land which was derived by said Georgia Pacific Railway Company by the deed made to said company by said Sarah Cox on May 2, 1883. The evidence further shows that on the 21st day of January, 1888, the heirs of said Sarah Cox filed their petition' for a sale of said S. E. % of S. W. 14, section 13, township 14, range 9, Walker county, except the coal, iron ore, and other minerals therein, for division, and that D. J. Townley appeared at the sale and bought — 603 — the land. The decree of sale was dated the 6th day of February, 1888, and the sale was made the 5th day of March, 1888, and Avas so reported and confirmed. The report showed the relinquishment by J. E. Cox, the surviving husband of Sarah Cox, of all his interest in said lands, so that the same might be sold, and showed a receipt by the heirs of said Sarah Cox, deceased, of their respective portions of the purchase money. The above being the undisputed testimony, the defendant, for the purpose of showing that the plaintiff and the defendant claimed through a common source of title, viz., Sarah Cox, offered in evidence the following: (1) A deed from C. L. Cunningham, commissioner appointed by the probate court to- convey the title of the heirs of Sarah Cox to said land to- the said D. J. Townley, the purchaser at said sale for division. This deed bears date October 2, 1889, and was duly recorded in record of deeds of Walker county on October 2, 1889. (2) A deed from D. J. Townley and wife to R. M. ToAvnley to said land, dated January 3, 1889, and acknoAvledged in December, 1890. The. plaintiff claimed title to the land through a deed which whs made to him 'by said R. M. Townley, dated March 21, 1896. Under the authorities cited under subdivision 2 of this opinion, the above deeds were relevant for the purposes for which they Avere offered, and the trial court committed reversible error in sustaining the objection of the plaintiff to their introduction in evidence. Fifth. In addition to the above, the evidence in this case shows, without dispute, that Manasco bought this land from J. C. Myers in 1858, probably about the time Myers obtained his patent to the land from the federal government. Manasco- then went into its possession, claiming it as his own, and finally gave it to his — 604 — daughter, who, so far as the record discloses, was in possession of the land until she died. It is true that during a part of that time she did not actually cultivate the land or live on it, but a part of it was under her fence, and she paid taxes on it, and in 1883 she sold the mineral interest in it to the Georgia Pacific Railroad Company. After her death it was sold as the land of her heirs. (7) If there was, prior to the purchase by D. J. Townley of the surface rights to these lands at the partition sale of the lands by her heirs on March 5, 1888, any person who, at any time, was in possession of this land other than J. C. Myers, Manasco, Sarah Cox, and, after her death, her heirs, or if, at any time during those years, a foot in hostility to the rights and possession of these parties was placed upon this land, the record fails to show it. This being true, it would seem that the law will, under the evidence in this record, presume that Myers made a deed to Manasco to this land in 1858 when Manasco obtained possession of said land from Myers. — Bolen v. Hoven, 150 Ala. 448, 43 South. 736; Normant v. Eureka Co., 98 Ala. 181, 12 South. 454, 39 Am. St. Rep. 45; Wilson v. Holt, 83 Ala. 529, 3 South. 321, 3 Am. St. Rep. 768; Woodstock Iron Co. v. Fullenwider, 87 Ala. 584, 6 South. 197, 13 Am. St. Rep. 73. For this reason, as well as for the reasons set forth in the first subdivision of this opinion, in our opinion the defendant, under the evidence as it exists in this record, was entitled to affirmative instructions in its behalf. Reversed and remanded. Anderson, C. J., and McClellan, Sayre, Somerville, and Gardner, JJ., concur in the opinion and conclusion. — 605 — Mayfield, J., concurs in the reversal of the judgment but does not concur in the opinion.