Asher v. Gibson

• Decision Date: 16 March 1923
• Parties: ASHER v. GIBSON ET AL.
• Court: Kentucky Court of Appeals

248 S.W. 862

198 Ky. 285

ASHER v. GIBSON ET AL.

Court of Appeals of Kentucky.

March 16, 1923

Appeal from Circuit Court, Bell County.

Action by T. S. Gibson and another against A. J. Asher. Judgment for plaintiffs, and defendant appeals. Affirmed.

Worthington Cochran, Browning & Reed, of Maysville, for appellant.

William Low, of Pineville, for appellees.

THOMAS J.

This action involves the title to the coal and other mineral under about 50 acres of land in Bell county, and which is a part of a patent granted to Thomas Hendrickson on the 15th day of May, 1823. The father of plaintiffs and appellees, James J and T. S. Gibson, was a remote vendee of the patentee, and he died intestate some time prior to February 22, 1881, on which latter date plaintiffs conveyed the 50 acres of land to William North, but expressly reserved and excluded from that conveyance all of the minerals underlying the tract. By successive conveyances from North, appellant and defendant below, A. J. Asher, became the owner by title bond in 1899 not obtaining a deed from his vendor until 1905, but he took possession in 1900. The deed from North to his immediate vendee was an absolute one, as was also the intervening ones from him to the defendant. In about 1891 or 1892 the then title holder from North (a corporation) undertook some sporadic mining operations on the tract, and plaintiffs filed an action against it to quiet their title to the minerals and to enjoin defendant therein from trespassing upon their mineral rights, in which case a judgment was rendered in 1894, in accordance with the prayer of their petition, and for a while at least the trespassing upon their rights ceased. There had been one or two small openings made on the tract before plaintiffs sold to North, but that appears to have been for the purpose of obtaining coal for individual use rather than for general commercial purposes. After defendant obtained possession under his title bond, one of those old openings was cleaned out, and he commenced in a small way to take coal therefrom, but that place was later abandoned, and two other small openings were made on the tract and some coal taken therefrom, but neither they, as is admitted by defendant, nor any other openings on the land were operated for any purpose for the three years intervening between 1903 and 1906. After that some coal was taken from some one or more of those openings, but at irregular times, and neither before that interregnum nor since has there been any regular and continuous operation of any of the openings in the manner of usual and customary mining operations. All of them were sporadic and for short periods and during irregular seasons, so as to make them analogous to and correspond with occasional trespasses committed by cutting timber.

The answer put in issue plaintiffs' title to the minerals and relied on an acquired title thereto in defendant by adverse possession. Paragraph 3 also pleaded that there were other heirs to plaintiffs' father, and that they were the owners of a fractional undivided interest, if any, in and to the minerals and sought to limit their recovery, if any, to their actual interest, but an amended answer was afterwards filed, expressly withdrawing that paragraph and without reiterating it in any of the defensive pleading. Appropriate pleadings made the issues, and the question of adverse possession was by agreement submitted to a jury which the court directed, after introduction of the evidence, over the objections and exceptions of defendant, to return a verdict for plaintiffs, overruling a like motion made at the same time by defendant. No other instructions were offered or given, and defendant's motion for a new trial was overruled and he appeals, urging by his counsel as grounds for reversal (1) that the petition was insufficient and the demurrer thereto should have been overruled; (2) error in adjudging plaintiffs the whole interest in the minerals, and (3) error of the court in directing a verdict for plaintiffs, which objections we will dispose of in the order named.

The ground for objection (1) is that the petition did not allege ownership of or title to the minerals by plaintiffs, and for that reason the demurrer to it should have been sustained; but the alleged ground for the objection is unfounded in fact, since the petition expressly avers:

"Plaintiffs further state that recently the defendant has begun to clean out and enlarge the old entries of a coal mine or bank which many years ago had been opened by the vendors of plaintiffs and has begun to remove the coal from said mine and has removed some of the coal therefrom, being a part of the coal which was reserved and not sold or conveyed by plaintiffs to the said Wm. North by said deed above referred to and which the plaintiffs own under legal title, and of which they have at all times had the actual possession."

It therein appears that plaintiffs specifically alleged their ownership under legal title of the minerals involved, "and to which they have at all times had the actual possession," which fact effectually disposes of this objection.

One conclusive answer to objection (2) is that, after plaintiffs expressly withdrew paragraph 3 of its answer in which that pro tanto defense was relied on, and failed thereafter to again plead it, the record was left barren of any such issue. No defect of parties plaintiff appeared upon the face of the petition, and, without it being made to appear by a plea in abatement or otherwise, the court had no such issue before it for determination. It could only act and adjudge the rights of the parties as they appeared from the pleadings. When plaintiffs withdrew that pro tanto defense or that matter in abatement, it left the record as showing that plaintiffs were the sole owners of the property involved, and there was no other course for the court to pursue but to adjudge the rights of the parties upon that hypothesis, and there is therefore no merit in this objection.

As supporting the ruling of the court complained of under objection (3) plaintiffs urge, and which defendant strenuously combats (a) that the attempted use and appropriation of the minerals by the various owners of the surface from North down to defendant in the manner hereinbefore indicated did not constitute adverse possession of the minerals by the owner of the surface, and (b), if it should be conceded that there was a contrariety of evidence upon that issue, the directed verdict was proper, since both parties moved for a peremptory instruction in their favor and asked for no other instructions submitting any contested issues. Those two contentions involve the principal questions in the case, which we will now proceed to determine.

In disposing of the first one (a) it might be appropriate to state at the outset that the reservation of the minerals in the deed executed by plaintiffs to North is proven beyond question and indeed, is admitted by defendant. It would be a useless consumption of time for us to undertake to show that a separation of the surface from the minerals under it, and the corresponding creation of two distinct estates in the two classes of property, may be created by a reservation in a deed conveying the surface as effectually and completely as it may be done by a separate and distinct deed to the minerals. The former method of creating such separate estates and segregating the two properties has often been recognized by this and other courts, and we will not incumber the opinion with cases so holding. In solving the question presented it should also be remembered that title acquired by adverse possession has its inception in an original wrong, and the right to acquire title in that manner is recognized only in furtherance of a sound public policy of repose whereby the true owner must attempt to assert his title within the time prescribed by the statute after the requisite quality of adverse assertion is made and continued by another. If not done within that time, the statute in effect says to the owner:

"You have recognized and acquiesced in the prevailing conditions for the statutory period until, perhaps, the evidence of the claim of your antagonist has been destroyed and for the purposes of repose, and to maintain the status quo which you have thus allowed to be created the law will not now destroy it at your instance."

But, in order for such consequences to be visited upon the true owner, it is everywhere recognized that the adverse holder must, in the language of some of the opinions, "keep his flag flying," which is to say, that his holding must be continuous and uninterrupted for the statutory period,...