Hoilman v. Johnson

• Decision Date: 10 December 1913
• Citation: 80 S.E. 249,164 N.C. 268
• Parties: HOILMAN ET AL. v. JOHNSON.
• Court: North Carolina Supreme Court

80 S.E. 249

164 N.C. 268

HOILMAN ET AL. v. JOHNSON.

Supreme Court of North Carolina

December 10, 1913

Appeal from Superior Court, Mitchell County; Cline, Judge.

Action by J. S. Hoilman and others against Waldron Johnson. Judgment for defendant, and plaintiffs appeal. No error.

The general owner or owners of land may grant all the minerals in the land or any particular species of them and retain ownership of the surface or vice versa.

The following issue was submitted: "Are the plaintiffs the owners and entitled to the possession of the mineral interests in the lands described in the complaint? Answer No."

A. Hall Johnson, of Marion, and Black & Wilson and Pless & McBee, all of Bakersville, for appellants.

W. L Lambert and Chas. E. Greene, both of Bakersville, for appellee.

BROWN J.

This action, as the issue indicates, is brought to recover the mineral interests in a certain tract of land which formerly belonged to Simeon Slagle. The plaintiff introduced a connected chain of deeds for the mineral interests from Slagle to the plaintiffs, antedating the deed of the defendant. The defendant claimed title to the entire fee including the mineral interests by deed from Simeon Slagle to the defendant, dated January 29, 1903. It is admitted that the defendant owns the surface, and to show title to the mineral interests, the defendant relies on his deed as color of title, and undertakes to show seven years' possession.

In apt time the plaintiffs ask the court to instruct as follows: "You are instructed in all the evidence the defendant has not shown sufficient evidence of adverse possession or user of the mineral interest involved in this suit, and you will answer the issue 'yes.' " His honor refused to give the charge; plaintiff excepts.

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, 79 S.E. 676, at this term. 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 disseised to lose his right, and there can be no disseisin by any act which does not actually take the minerals out of his possession. Cyc. vol. 1, p. 994; Armstrong v. Caldwell, 53 Pa. 284; Caldwell v. Copeland, 37 Pa. 427, 78 Am. Dec. 436; Wallace v. Elm Grove Coal Co., 58 W.Va. 449, 52 S.E. 485, 6 Ann. Cas. 140; Newman v. Newman, 60 W.Va. 371, 55 S.E. 377, 7 L. R. A. (N. S.) 370; Plant v. Humphries, 66 W.Va. 88, 66 S.E. 94, 26 L. R. A. (N. S.) 558.

As Mr. Justice Strong says in Armstrong v. Caldwell, supra: "The owner of the surface can acquire title against the owner of the minerals underneath by no acts or continuous series of acts that would not give title to a stranger."

Although the evidence as to continuous possession of the mineral interests is conflicting, measured by the above rule, we think his honor properly refused the plaintiff's requested instruction.

The defendant testifies that he took possession in January, 1903 and commenced to mine at once; that he bought the land and mineral interests, not knowing that the latter had been previously sold. Witness continues: "I used the land for farming, mining, timber, and all other purposes I needed it. I began to prospect and mine some in two or three months. Mined on it five or six days the first year, and have mined some on it every year since. Did this in fall and winter at leisure times. Made some dumps. Took some mica out of side veins. Worked over the vein for 20 feet, tunneled for 20 or 30 feet. This was on the 3 1/2-acre tract. Then we ran a tunnel on the south side of my house on the 50-acre tract. This was two years after I moved there. Worked two or three days at that place. Mined and hunted mica all over the land. When I went there, very little mining had been done. Looked like a little prospecting...