Kincaid, &C., v. McGowan, &C.

• Decision Date: 31 May 1887
• Citation: 88 Ky. 91
• Parties: Kincaid, &c., v. McGowan, &c.
• Court: Kentucky Court of Appeals

88 Ky. 91

Kincaid, &c., v. McGowan, &c.

Court of Appeals of Kentucky.

May 31, 1887.

APPEAL FROM MENEFEE CIRCUIT COURT.

S. F. J. TRABUE FOR APPELLANTS.

W. P. D. BUSH AND E. F. TRABUE ON SAME SIDE IN PETITION FOR REHEARING AND MODIFICATION OF OPINION.

WM. LINDSAY OF COUNSEL ON SAME SIDE.

PETERS & TYLER, THOMAS TURNER, H. C. LILLY & SON FOR APPELLEES.

JUDGE BENNETT DELIVERED THE OPINION OF THE COURT.

The appellant's petition contains three paragraphs — the first against William Gray, the second against the appellees, and the third against John M. Clayton. The allegations of the petition which are common to all of the paragraphs are, that on the fourth day of January, 1786, the Commonwealth of Virginia granted to Dean Timmons twenty-two thousand acres of land, which lie in Menefee and Wolfe counties, this State, and that Thomas Duckham, on the ninth day of June, 1843, he being the owner thereof, sold said survey of land to Edward Kincaid, the appellant's ancestor, and Samuel Plummer, except the tracts previously sold by Thomas Duckham to Powell Rose, James Cox and J. P. McGowan. That on the fourth day of October, 1846, Samuel Plummer sold his undivided interest in said land to Edward Kincaid, who thereby became the owner of the whole, and held and owned said land at the time of his death, except the tracts which he had previously sold to Dr. William Congleton, Spencer and John ______, and George Centers. That the appellants, as the children and grandchildren of Edward Kincaid, he having died intestate, inherited said land from him, and that they own and are in the actual possession of the same, except said parcels sold by Edward Kincaid, and the tracts sold by Duckham to Powell Rose, James Cox and J. P. McGowan.

The first paragraph of the petition alleges that Wm. Gray holds a deed to five hundred acres of said land; that the deed purports on its face to have been executed by Thomas Duckham as the attorney in fact of Edward Kincaid, but that said Duckham had no authority from Edward Kincaid to make said conveyance; and that the said deed is void, but, nevertheless, cast a cloud upon their title, which the appellants ask the chancellor to remove by declaring said deed to be void, etc.

The second paragraph alleges that the appellees "are setting up some sort of claim to some part or interest in the said balance of the said twenty-two thousand-acre tract," under some contract made with Thomas Duckham, the vendor of Edward Kincaid. Appellants also allege that they do not know the exact nature of the appellee's claim, but do know that they are giving out in speeches that they own and have the right to hold, possess and sell portions of said plaintiffs' lands, and also the minerals under and timber upon certain other parts of said survey of twenty-two thousand acres, which minerals and timber belong to these plaintiffs. It is also alleged that the claim of the appellees, although groundless, impairs the value of the appellants' land and casts a cloud upon their title. The chancellor is asked to compel appellees to exhibit any title they may have to said land, or to the minerals and timber under and upon any land lying within the said twenty-two thousand-acre survey; and that the appellants' title be quieted, etc. The third paragraph alleges that John M. Clayton "asserts that he holds title to some portion of the said balance of the twenty-two thousand-acre survey, as the remote vendee of Thomas Duckham, and gives out publicly that he can sell and pass a good title to purchasers, and that these plaintiffs have not a good title," whereby he greatly impairs the vendible value of their estate. They also allege that the claim of Clayton is groundless. They ask that he be required to exhibit his claim of title, and that their title be quieted, etc.

Upon motion of the appellees, the lower court required the appellants to elect to proceed on the first paragraph or second and third paragraphs. The appellants excepting to the ruling of the court, elected, under protest, to proceed on the second and third paragraphs.

Thereafter the appellants amended the second paragraph of their petition. The appellees then entered a general and special demurrer to the second paragraph of the appellants' petition as amended, both of which were sustained by the lower court, and the appellants electing to stand by their pleadings, the second paragraph was dismissed. They have appealed to this court. The amended petition sets out a more specific description of the land claimed by appellants. It also exhibits two deeds of conveyance from Thomas Duckham to James P. McGowan, the first dated the second day of February, 1842, and the second dated the twenty-first of November, 1842. The first deed conveys a certain boundary within the twenty-two thousand-acre survey, but "reserves" to the grantor "all minerals and mines in the bowels of the boundary" conveyed, "and one-half of the timber included in said boundary, and a mill-site on Glady creek."

The second deed conveys a certain other boundary of land within said twenty-two thousand-acre survey, but reserves to the grantor "one-half of all the mines and minerals in the bowels of the earth" within said boundary, and "one-half of the timber thereon," except on the south side of the river. On that side he reserves all of the timber, except that which is "on Swift Camp."

It is alleged in the appellants' amended petition that the minerals and timber claimed in their original petition are the minerals and timber reserved in these two deeds. The special demurrer raises the question of the appellants' right to these minerals and timber. We will dispose of that question first. The appellants' contention is that they are entitled to the minerals and timber reserved by Duckham in said conveyances, by virtue of his deed to Edward Kincaid and Samuel Plummer, dated the ninth of June, 1843, which conveyed to them all of the twenty-two thousand-acre survey of land, only deducting therefrom "what" Duckham had sold and made deeds to prior to that date. In other words, that Duckham's reservations in said deeds, being a landed estate of inheritance in himself, were included in his conveyance of the entire twenty-two thousand-acre survey, which conveyance, to Edward Kincaid and Samuel Plummer, only excepted the surface conveyances previously made by him.

An estate in fee in land carries with it all metals and minerals thereunder, unless the metals and minerals are excepted in the conveyance, or "have before been severed in ownership, and the right thereto vested in some other person." The surface and the metals and minerals may be a distinct property from each other by separate conveyances from individuals. (Bingham on Sales of Real Property, page 288.)

Minerals in place are land. They are subject to conveyance. The surface right may be in one man and the mineral right in another. Both in such a case are land-owners. They own separate and distinct corporeal hereditaments. (Caldwell v. Fulton, 31 Penn. State R., 475.)

The owner of land may convey a surface estate in fee in it and reserve to himself an estate in fee in the minerals, or any particular species of them, in which case the vendee holds a distinct and separate estate in the surface, or soil, and the vendor holds a distinct and separate estate in the minerals. By this severance each estate is subject to the laws of descent, of devise, of conveyance. (Adam, &c., v. Briggs Iron Company, 7 Cush., 361.)

Also, by the severance each estate is as distinct property in the respective owners as is the property in a two-story house, where the title to the lower story is in one person and the title to the upper story is in another person. An action of ejectment will lie in behalf of the owner of the surface to recover it; also an action will lie in behalf of the owner of the mineral estate to recover it; also, the right of either owner may be barred by the statute of limitations.

Now, then, Duckham sold to McGowan two parcels of land out of a larger boundary which he owned. These two parcels of land were each designated and set apart by metes and bounds, thereby becoming separate and distinct tracts of land, not only from each other, but from Duckham's remaining portion of the survey. The...