197 S.E. 182 (N.C. 1938), 242, Vance v. Pritchard

Docket Nº:242.
Citation:197 S.E. 182, 213 N.C. 552
Opinion Judge:DEVIN, Justice.
Party Name:VANCE v. PRITCHARD et al.
Attorney:Burke & Burke, of Taylorsville, and Geo. M. Pritchard and M. A. James, both of Asheville, for appellants. McBee & McBee, of Bakersville, J. V. Bowers, of Newland, and John R. Jones and J. M. Brown, both of North Wilkesboro, for appellee.
Judge Panel:SEAWELL, J., took no part in the consideration or decision of this case.
Case Date:May 25, 1938
Court:Supreme Court of North Carolina
 
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Page 182

197 S.E. 182 (N.C. 1938)

213 N.C. 552

VANCE

v.

PRITCHARD et al.

No. 242.

Supreme Court of North Carolina

May 25, 1938

Appeal from Superior Court, Avery County; John H. Clement, Judge.

Action by D. T. Vance against Benjamin Pritchard and another to establish plaintiff's title to the mineral and mining rights in three tracts of land. Judgment for plaintiff, and defendants appeal.

New trial.

CLARKSON, J., dissenting.

Page 183

This was an action to establish plaintiff's title to the mineral and mining rights in three tracts of land, containing respectively 16 5/8 acres, 25 acres, and 26 1/2 acres.

Defendants denied plaintiff's title to the mineral interests in said land, and further alleged title in themselves by reason of twenty years' adverse possession of said mineral interests, or seven years' adverse possession under color of title.

Plaintiff offered evidence tending to show: (1) Conveyance, in 1912, by Toe River Land & Mining Co. to Robert (Bob) Buchanan for 2180 acres of land (including the locus in quo), "excepting and reserving a three-fourths undivided interest in and to the minerals on said land;" (2) deed, dated in 1917, from Bob Buchanan to D. T. Vance, the plaintiff, for said grantor's entire mineral interests in the described 2180 acres of land; and (3) deed from the Sheriff of Avery County under execution against Toe River Land & Mining Co., purporting to convey to plaintiff a three-fourths interest in all minerals in or on the described 2180 acres of land.

For the purpose of connecting the defendants with the same source of title, the plaintiff offered in evidence the following deeds: (a) From Bob Buchanan to Jeremiah Pritchard, in 1912, for 145 acres (a part of the 2180 acres and including the locus in quo), "reserving and excepting all mines and minerals, with right of ingress and egress." (b) From Jeremiah Pritchard to Walter Hughes, in 1917, for the same 145 acres of land, "reserving all mines and minerals, with right of ingress and egress." (c) From Bob Buchanan in 1912, to John Pritchard for 26 1/2 acres (included in 2180-acre tract), "reserving and excepting all mines and minerals, with right of ingress and egress." (d) From Walter Hughes, in 1918, to John S. Pritchard for 16 5/8 acres (included in the 145-acre tract) in fee simple, without reservation of minerals or mineral rights. (e) From Walter Hughes, in 1918, to Benjamin Pritchard for 25 acres (included in the 145-acre tract) in fee simple and without reservation of minerals or mineral rights. (f) From John Pritchard, in 1926, to Benjamin Pritchard for the 26 1/2-acre tract, without reservation.

Defendants offered evidence tending to show adverse and continuous use and possession of the mineral interests in and on said lands for more than seven years, and for more than twenty years.

Among other things the court charged the jury as follows:

"The paper title that he (plaintiff) has offered in evidence here, nothing else appearing, would entitle the plaintiff to be declared the owner and entitled to the possession of the mining and mineral interests in this property. * * * The court instructs you that he has offered a chain of title here that would warrant you in answering that issue yes, unless you find that the defendants have acquired title to this property by adverse possession.

Now, the thing for you to decide and the thing that you must find out from this evidence, is whether these defendants have held adversely under those deeds which are color of title.

The burden is on the defendants to satisfy you by the greater weight of the evidence that they have acquired title to that land either under color of title for seven years or that they have held it adversely for a period of twenty years. * * * If they have failed to satisfy you by the greater weight of the evidence that

Page 184

they have held that land adversely for a period of twenty years without color of title and they have failed to satisfy you by the greater weight of the evidence that they have held it adversely under color of title for a period of seven years, then it would be your duty to answer that first issue yes."

Upon the issues submitted the verdict of the jury was as follows:

"1. Is the plaintiff the owner and entitled to the immediate possession of the mineral and mining rights in the property alleged in the complaint?"

"Answer: Yes."

"2. What damage, if any, is the plaintiff entitled to recover?"

"Answer: None."

From judgment on the verdict defendants appealed, assigning errors in the admission of testimony and in the charge of the court to the jury.

Burke & Burke, of Taylorsville, and Geo. M. Pritchard and M. A. James, both of Asheville, for appellants.

McBee & McBee, of Bakersville, J. V. Bowers, of Newland, and John R. Jones and J. M. Brown, both of North Wilkesboro, for appellee.

DEVIN, Justice.

The title of the defendants to the surface rights in the land described in the pleadings is not controverted, but the plaintiff seeks to establish his right to the mineral and mining interests in said lands by virtue of deeds and reservations segregating the title to the minerals and mineral rights therein.

The defendants denied plaintiff's title to the mineral interests, and furthermore alleged that they had acquired title to said mineral interests by adverse possession, either under or without color of title, for the statutory periods.

The law as to the relative rights of parties, where mineral and surface rights in land have been severed was succinctly stated by this court in Hoilman v. Johnson, 164 N.C. 268, 80 S.E. 249. It was there said (page 250): "It is well settled that the surface of the earth and the minerals under the surface may be severed by a deed, or reservation in a deed, and, when so severed, they constitute two distinct estates. Outlaw v. Gray [163 N.C. 325] , 79 S.E. 676. The mineral interests being a part of the realty, the estate in them is subject to the ordinary rules of law governing the title to real property. The presumption that the party having possession of the surface has the possession of the subsoil containing the minerals does not exist when these rights are severed. Armstrong v. Caldwell, 53 Pa. 284. The owner of the surface can acquire no title to the minerals by exclusive and continuous possession of the surface, nor does the owner of the minerals lose his right or his possession by any length of nonuser. He must be disseized to lose his right, and there can be no disseizin by any act which does not actually take the minerals out of his possession."

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