Armstrong v. Caldwell

• Decision Date: 07 January 1867
• Parties: Armstrong <I>versus</I> Caldwell.
• Court: Pennsylvania Supreme Court

53 Pa. 284

Armstrong versus Caldwell.

Supreme Court of Pennsylvania.

January 7, 1867.

ERROR to the Court of Common Pleas of Westmoreland county.

W. H. Lowrie and J. C. Hunter, for plaintiff in error, cited Nearhoff v. Addleman, 7 Casey 279; Hawks v. Senseman, 6 S. & R. 21; Adams v. Robinson, 6 Barr 271; Hole v. Rittenhouse, 1 Casey 493; De Haven v. Landell, 7 Id. 126; Groft v. Weakland, 10 Id. 307; Martin v. Jackson, 3 Id. 510; Murphy v. Richardson, 4 Id. 294; Boults v. Mitchell, 3 Harris 380; Bolton v. Hamilton, 2 W. & S. 294; Wallace v. Duffield, 2 S. & R. 527; Jones v. Porter, 3 Penna. R. 132; Buckholder v. Sigler, 7 W. & S. 154; Watson v. Gregg, 10 Watts 296; Cooper v. Smith, 9 S. & R. 26; Stewart v. Roderick, 4 W. & S. 188; McMasters v. Bell, 2 Penna. R. 180; Marsh v. Weckerly, 1 Harris 250; Washabaugh v. Entriken, 10 Casey 74; Sorber v. Willing, 10 Watts 141; Hole v. Rittenhouse, 1 Wright 116; Caldwell v. Copeland, Id. 427; Union Canal Co. v. Young, 1 Whart. 426; Colvin v. Burnet, 17 Wend. 568; Butler v. Phelps, Id. 642; Hart v. Vose, 19 Id. 365; Luce v. Carley, 24 Id. 454.

H. P. Laird, for defendant in error, cited Kite v. Brown, 5 Barr 291; Leeds v. Bender, 6 W. & S. 315; Fitch v. Man, 8 Barr 503; Johnston v. Irwin, 3 S. & R. 291; Mackentile v. Savoy, 17 Id. 104; Porter v. Maginnis, 1 Barr 413; Watson v. Gregg, 10 Watts 289; Cunningham v. Patton, 6 Barr 355; Garrett v. Jackson, 8 Harris 331; Jones v. Crow, 8 Casey 398; Ament's Executors v. Wolf, 9 Id. 331; Hole v. Rittenhouse, 1 Wright 119.

The opinion of the court was delivered, January 7th 1867, by STRONG, J.

That under the deed from James Caldwell to George Greer, made the 27th day of May 1831, the latter acquired the absolute ownership of all the coal under the surface of the grantor's land, is not now in controversy. Nor is it denied that Armstrong, the plaintiff in error, has succeeded to the rights of Greer under that conveyance. But the plaintiff below, who is the son and devisee of James Caldwell, contends that Armstrong's title has been lost, by an adverse possession of the coal, continued for a period of more than twenty-one years. This adverse possession, he claims, was taken by his father, and maintained by him and the plaintiff himself until an entry was made under the Greer title in the summer of 1852.

Notwithstanding his deed to Greer, James Caldwell remained the owner of the surface. His deed effected a severance of the right to the surface from the right to the underlying coal. It made them distinct corporeal hereditaments. It is, no doubt, the general presumption that a party who has possession of the surface of land has possession of the subsoil also, because, ordinarily, the right to the surface is not severed from the right to the strata below the surface. But this presumption does not exist when these rights are severed. Each then becomes a distinct possession. In such a case, the possession of the surface, following the right, is as distinct from the possession of the minerals or subsoil strata, which have been severed in right, as is the possession of one tract of land from that of another not in contact with it. Hence it is settled that when, by a conveyance or reservation, a separation has been made of the ownership of the surface from that of the underground minerals, the owner of the former can acquire no title by the Statute of Limitations to the minerals, by his exclusive and continued enjoyment of the surface: Caldwell v. Copeland, 1 Wright 427. Nor does the owner of the minerals lose his right or his possession by any length of non-user: Seaman v. Vandrey, 16 Ves. 390; Smith v. Lloyd, 9 Exch. 562. He must be disseised to lose his right; and there can be no disseisin by act that does not actually take the minerals out of his possession. There seems to be no reason why the Statute of Limitations should not be held applicable to all corporeal hereditaments, including those that are only sub-surface rights. The British statute of 3 & 4 Will. 4, c. 27, certainly is applicable to such rights, and it can hardly be said to be more comprehensive than ours. In...