Grayson-McLeod Lumber Co. v. Duke

McCulloch, C. J. The principal question involved in this case is the same as that decided in the case of Bodcaw Lumber Co. v. Goode, ante, p. 48, concerning the separate sale and conveyance of land excepting mineral rights. There is, however, in the present case an additional question to be decided with reference to the effect of the statute of limitations in bar of excepted mineral rights. Appellant owned the land involved, and conveyed it on April 1,1905, by warranty deed, to one Key, the deed containing in the granting clause an exception in the following language: “Reserving, however, all coal, oil and mineral deposits in and upon said lands, and the right of said party of the first part, its successors and assigns, at any and all times to enter on said lands and to mine and remove any and all coal, oil and mineral deposits found thereon or thereunder, without .any claims for damages by the party of the second part, his heirs or assigns.” Key conveyed to one Stark, by warranty deed dated January 23, 1904, and appellee holds under mesne conveyances, the deed from his immediate grantor having been executed to him in the year 1915, there being no exception of mineral rights in any of the deeds subsequent to that of appellant to Key. This action was instituted by appellee against appellant in the chancery court on July 7, 1922, to cancel the exception in the deed from appellant Key and to quiet his title as against any rights asserted under the exception. Appellee pleaded the bar of the statute of limitations as against the assertion of those rights, and the chancery court decided the case in his favor, giving him the relief prayed for in the complaint. The cause was heard on an agreed statement of facts to the effect that neither party had taken any steps to develop minerals, that appellant had “exercised no acts of ownership, paid no taxes” since the execution of said deed to Key, and that “the possession of appellee and those under whom he holds has been continuous and peaceable, and that the land had been under fence and in cultivation for more than seven years, and that said possession would be adverse to appellant but for the reservation in said deed.” The additional question in this case relates to the fact that Key conveyed to Stark, appellee’s remote grantor, about a year prior to the deed of appellant to Key. No explanation appears either in the pleadings or proof why Key conveyed to Stark before he received his deed from appellant. Nor is there any showing that either Key or Stark claimed any title independent of the conveyance from, appellant. There being no proof of any independent claim, tbe presumption must be indulged that Key and all tbe subsequent grantees beld under tbe title conveyed by appellant and in subordination thereto, unless it be shown that Stark held adversely under an independent claim prior to the deed of Key to him. Key’s after-acquired title under the deed from appellant inured to the benefit of Stark and all subsequent grantees, by virtue of the statute. Crawford and Moses’ Digest, § 1498. It follow® therefore that adverse occupancy of the surface of the land did not put the statute of limitations into operation as against the retained mineral rights of appellant. Bodcaw Lumber Co. v. Goode, supra. The conveyance from appellant to Key was, by operation of the statute, in the line of appellee’s title, and he was bound to take notice of it, notwithstanding the fact that it was executed prior to the deed from Key to Stark. Appellee had no other chain of title, and he is presumed to have held under it, unless he shows adverse occupancy independent of that chain of title. We find one authority holding that “if the occupant of the surface claims under a deed which purports to convey a complete title to the entire property, his possession should be characterized by the terms of the instrument under which he holds, and he should be deemed to be asserting dominion over the whole.” Crowe Coal & Min. Co. v. Atkinson, 85 Kas. 357, Ann. Cas. 1912-D 1196. But the other authorities are practically unanimous against this rule. It follows that the decree in appellee’s favor is erroneous, and it is therefore reversed, and the cause is remanded, with directions to dismiss the complaint for want of equity.