Snoddy v. Bolen
| Decision Date | 04 June 1894 |
| Parties | Snoddy, Appellant, v. Bolen et al. [*] |
| Court | Missouri Supreme Court |
Appeal from Vernon Circuit Court. -- Hon. D. P. Stratton, Judge.
Affirmed.
Harrison & Harrison with William Thompson for appellant.
(1) It is competent for the owner to convey his mines by a separate and distinct grant so as to create one freehold in the soil and another in the mines. Wardell v. Watson, 93 Mo 107; 3 Washburn on Real Prop. [5 Ed.], p. 416, sec. 31; side p. 625. No one but the owner of the land in fee can dedicate it, or the use of it, to the public, and it is, moreover essential to a dedication that the owner should intend what he does as a dedication. 3 Washburn on Real Prop. [5 Ed.], p 79, sec. 7; side page 459. (2) Land is divisible, both horizontally and vertically. Therefore one person may be entitled to the surface of the land and another to the minerals under it. 2 Rapalje & Lawrence's Law Dictionary, p. 723. (3) The common source of title is admitted to be in A. W. Hough and wife; therefore it is not necessary to go back of this time on the question of title. Hough v. Morton, 94 Mo. 405; Charles v. Patch, 87 Mo. 450. (4) Although the effect of a statutory dedication may be to grant the fee of the streets to the corporation in trust for the public uses, yet, unless prohibited by the statute, the proprietor, in laying out a town or addition, may grant the easement simply and and reserve the minerals, or grant the soil and except the minerals. 2 Dillon on Municipal Corporations [4 Ed.], sec. 629, p. 740; Dubuque v. Benson, 23 Iowa 248; Noyes v. Ward, 19 Conn. 250; Manley v. Gibson, 13 Ill. 312; Peck v. Engine Co., 8 R. I 353; Co. v. Bachman, 66 N.Y. 261; 5 Am. and Eng. Encyclopedia of Law 397, and cases cited; Rutherford v. Taylor, 38 Mo. 315; Price v. Thompson, 48 Mo. 361. (5) The exception in the deed of dedication withdrew from the operation of the conveyance to the mineral estate, which, but for the exception would have passed to the county under the general description, and, whether by grant or exception, it created a separate and distinct estate of inheritance, subject to the servitude of the public. Wardell v. Watson, 93 Mo. 107; Williams v. Hay, 120 Pa. St. 485. (6) The plat and deed of dedication filed in the recorder's office and referred to in all subsequent deeds and mortgages was notice to all, and as much a part of the deeds and mortgages as though set out in said deed or mortgages. Whitehead v. Ragan, 106 Mo. 231; Dolde v. Vodicka, 49 Mo. 98; Dingman v. McCullum, 47 Mo. 372. (7) The deed of dedication created a separate estate in the mineral, which was vested in Furnas. The deed of trust to O'Keefe did not carry the minerals excepted in the street, but by mesne conveyances became the property of the plaintiff. Kincaid v. McGowan, 88 Ky. 91; Adams v. Iron Co., 7 Cush. 361. Brainbridge on the law of Mines and Minerals [Am. Ed.], side page 129. (8) Since the respondents admit that a dedicator may grant the surface estate and except the mineral beneath the surface, as in this case, "the only question in the case is solved, when it is satisfactorily determined what the deed of trust did actually convey," as pointedly remarked by the learned judge delivering the opinion in this case. There can be no question, either, that a man entitled to land may grant the surface and except the minerals underneath, and the right to get the minerals, and other rights in and over the property, or enjoyment of it, "and so, the grantee of mines may re-grant, and in all these cases the grantee may maintain action in respect of the rights granted." Washburn on Real Property [5 Ed.], p. 361; Wardell v. Watson, 93 Mo. 107; Caldwell v. Fullerton, 31 Pa. St. 475; Marven v. Mining Co., 55 N.Y. 536; Dillon on Mun. Corp. [4 Ed.], p. 740. sec. 629.
Thomas & Hackney for respondents.
(1) Under the provisions of section 8, chapter 44, General Statutes, 1865 (now sec. 7313, R. S. 1889), the city, by a statutory dedication, does not acquire the absolute ownership in fee in the soil and valuable minerals beneath the surface. The extent of the estate in the corporation is the use of the land as a public street. All else pertaining thereto, to the center of the earth, belongs to the adjacent owners. Kimball v. Kenosha, 4 Wis. 321; Goodall v. Milwaukee, 5 Wis. 32; Milwaukee v. Railroad, 7 Wis. 99; Schurmeier v. Railroad, 10 Minn. 82; Winona v. Huff, 11 Minn. 136; Mankato v. Willard, 13 Minn. 18; Lahr v. Railroad, 104 N.Y. 268-291; Story v. Railroad, 90 N.Y. 122; Cox v. Railroad, 48 Ind. 178. (2) The purposes of the trust require no larger estate than an easement, and, hence, the fee will not be held to have passed as to any part of the streets and alleys. 1 Perry on Trusts [4 Ed.], sec. 312, pp. 415, 416; 2 Washburn on Real Prop. [3 Ed.], top p. 460; margin p. 187. (3) Where a deed in fee of land was made, "the grantor saving and reserving for his own use the coal contained in said piece or parcel of land, together with free ingress and egress by wagon road to haul the coal therefrom as wanted," it was held that the saving clause operated as an exception and not as a reservation, and that the entire, perpetual property in the coal remained in the grantor in the same right as before the grant. Whitaker v. Brown, 46 Pa. St. 197; Ashcroft v. Railroad, 126 Mass. 196; Stockbridge v. Iron Co., 107 Mass. 290; Rich v. Zeilsdorff, 22 Wis. 544; Canal Co. v. Hewitt, 66 Wis. 461; Fisher v. Laack, 76 Wis. 313. (4) The deed from Furnas to O'Keefe, trustee, conveying the lots by their numbers, without any exception or reservation, passed from Furnas all his title to the minerals in the streets and alleys abutting on the lots. Angell on Highways [3 Ed.], p. 418, and cases cited; Kneeland v. Van Valkenburg, 46 Wis. 434; 2 Dillon on Municipal Corporations [4 Ed.], p. 747, note; Cases cited in note to Dogan v. Seekright, 4 Lead. Cas. in Am. Law of Real Prop., by Sharswood & Budd, p. 378; Baker v. St. Louis, 75 Mo. 671; Ferrenbach v. Turner, 86 Mo. 419; Hannibal Bridge Co. v. Schaubacher, 57 Mo. 582; Schneider v. Jacob, 86 Ky. 101; S. C., 5 S.W. 350, and cases cited; Railway v. Witherow, 82 Ala. 190; Sherman v. McKeon, 38 N.Y. 266; Hague v. West Hoboken, 23 N.J.Eq. 357; Salter v. Jonas, 39 N. J. Law, 469; Matter of Robbins, 34 Minn. 99; Cox v. Freedley, 33 Pa. St. 124. (5) Under a statute as to dedication identical with the Missouri statute, and on facts identical with the facts in the case at bar, it was held that the mineral under the streets and alleys passed to the purchaser of the abutting lots. Tousley v. Co., 24 Kan. 328.
Barclay, J., not sitting.
OPINIONIn Banc
This is an action of ejectment to recover "all the lead and zinc mines" in that part of Allen street which lies east of lot 16 in Hough & Furnas' addition to Webb City. Lot 16 fronts fifty feet on the west line of the street, and the street is sixty-two feet wide, so that the surface of the ground in question is fifty by sixty-two feet. The essential facts are these: A. W. Hough and Isaac Furnas, being the owners of sixteen acres of land, laid the same off into lots, streets and alleys. At the same time they executed the following deed: We, A. W. Hough and Isaac Furnas, "owners of the land described in the annexed plat of Hough & Furnas' addition to Webb City, do hereby release and convey to Jasper county, in the state of Missouri for public purposes all the streets and alleys as designated on said plat, except the right to all valuable minerals in said land, which we hereby reserve, together with the right to mine the same."
This deed bears date the twenty-third of May, 1877; it and the plat were recorded on the sixteenth of June, 1877. On the last mentioned date Hough conveyed his half interest in lots 1 to 36, both inclusive, to Furnas "together with all valuable minerals in the streets and alleys of said additions, east of the middle of Webb street, as reserved on the recorded plat thereof." Webb street is the first north and south street west of Allen street; and lots 1 to 36 include all the lots east of Webb street. Allen street runs north and south and is wholly on the sixteen acres. The east line of that street is the east line of the addition. Hough and Furnas owned no land adjoining the street on the east.
On the sixteenth of June, 1877, Furnas conveyed the thirty-six lots, describing them by their numbers and making no mention of the minerals in the streets or alleys, to O'Keefe, as trustee, to secure a debt of $ 612. He made default in the payment of the debt, and the lots were sold under the terms of the deed of trust, and Pinney became the purchaser, and received a trustee's deed dated the eighth of August, 1887. The defendants hold under Pinney by various mense conveyances.
The plaintiff put in evidence two deeds, executed in June, 1889, one from Furnas to Bell and the other from Bell to the plaintiff, conveying "the right to all valuable minerals in the streets and alleys in Hough and Furnas' addition to Webb City, east of the center of Webb street, with the right to mine the same."
The defendants entered and removed a large quantity of lead and zinc from beneath the surface of that part of the street in question. They were still in possession when this suit was commenced.
It will be seen from the foregoing statement that Furnas became the sole proprietor of all the lots east of Webb street and of all the minerals in the streets and alleys east of the center of that street, so that he was the owner of the minerals in Allen street. The question in the case is whether his deed to O'Keefe, conveying the lots by their numbers and reference to...
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