Birmingham Fuel Co. v. Boshell

Decision Date17 December 1914
Docket Number841
Citation67 So. 403,190 Ala. 597
PartiesBIRMINGHAM FUEL CO. v. BOSHELL.
CourtAlabama Supreme Court

Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Action between the Birmingham Fuel Company and W.R. Boshell. From a judgment for the latter, the former appeals. Reversed and remanded.

Mayfield J., dissenting.

Davis &amp Fite, of Jasper, and Percy, Benners & Burr and W.H. Smith all of Birmingham, for appellant.

Bankhead & Bankhead, of Jasper, for appellee.

DE GRAFFENRIED, J.

This suit involves the title to the mineral rights in the S.E. 1/4 of S.W. 1/4, section 13, township 14, range 9, Walker county Ala.

This opinion is written as expressive of the views of the members of this court who appear as concurring therein; and, as the case must again be tried, we deem it well to announce the following propositions of law, which appear to have applicability to the facts of the case as they are disclosed by the bill of exceptions in this record:

First. "As against a trespasser, a plaintiff in ejectment, or the statutory action in the nature of ejectment, may recover on proof of prior possession, although he was not in the actual possession when the defendant entered; and the defendant cannot defeat his right to recover by proof of an anterior possession by a third person, with which he does not connect himself." L. & N.R.R. Co. v. Philyaw, 88 Ala. 264, 6 So. 837.

Second. "Where the defendant denies that he claims from the same source as the plaintiff, the latter may show that he does so claim, by introducing in evidence the various deeds connecting him with such alleged common source; and it is no objection to the exercise of this right that the evidence offered proves the defendant's title to be worthless." Bradley v. Lightcap, 201 Ill. 513, 66 N.E. 546; McWhorter v. Heltzell, 124 Ind. 129, 24 N.E. 743; Warville on Ejectment, p. 275, § 265.

In the case of Vidmer et al. v. Lloyd, 63 So. 947, this court said:

"It may be true that defendant announced that he did not claim through Adele Rabby; yet there was evidence from which the jury could infer that he did, *** and, if such was the case, he is estopped from denying her title."

See further, on this subject, Pendley v. Madison, 83 Ala. 484, 3 So. 618; Lewis v. Watson, 98 Ala. 480, 13 So. 570, 22 L.R.A. 297, 39 Am.St.Rep. 82; Ware v. Dewberry, 84 Ala. 568, 4 So. 404; Houston v. Farris, 71 Ala. 570; Tenn. & Coosa River R.R. Co. v. East Ala. Ry. Co., 75 Ala. 516, 51 Am.Rep. 475.

Third. "After severance of the mineral in situ from the surface, the possession of the latter is not possession of the former. The effect of the severance is to create two closes adjoining but separate." Hooper v. Bankhead, 171 Ala. 632, 54 So. 549.

In other words, after a severance of the minerals in situ from the surface, the acquisition of the title to the surface by adverse possession of the surface does not result in the acquisition of title to the mineral interests in the land. To acquire, by adverse possession, the title to the mineral interest so severed, there must be an actual taking or use under claim of right of the minerals from the land for the period necessary to effect the bar.

"Under the authorities, it is essential, to effect adverse possession of the minerals, after severance, in title, from the surface, that the adverse claimant do some act or acts evincing a permanency of occupation and use, as distinguished from acts merely occasional, desultory, or temporary--acts suitable to the enjoyment and appropriation of the minerals so claimed, and hostile to the rights of the owner." Hooper v. Bankhead, 171 Ala. 633, 54 So. 549; Gordon v. Park, 219 Mo. 600, 117 S.W. 1163; Gill v. Fletcher, 74 Ohio St. 295, 78 N.E. 433, 113 Am.St.Rep. 962; Algonquin Coal Co. v. Northern Coal & Iron Co., 162 Pa. 114, 29. A. 402; Huss v. Jacobs, 210 Pa. 145, 59 A. 991; Armstrong v. Caldwell, 53 Pa. 284; Delaware & Hudson Canal Co. v. Hughes, 183 Pa. 66, 38 A. 568, 38 L.R.A. 826, 63 Am.St.Rep. 743; Plant v. Humphries, 66 W.Va. 88, 66 S.E. 94, 26 L.R.A. (N.S.) 558; J.R. Crowe Coal & Mining Co. v. Atkinson, 85 Kan. 357, 116 P. 499, Ann.Cas. 1912D, 1196; Catlin Coal Co. v. Lloyd, 180 Ill. 398, 54 N.E. 214, 72 Am.St.Rep. 216.

The proposition under discussion seems to be so well established that it appears needless to cite the above authorities to sustain it. The principle is, however, of importance in this state, and for that reason the writer of this opinion has above perpetuated some of the leading authorities upon the subject, and which are cited in the numerous briefs on file in this case.

Fourth. The undisputed evidence in this case shows that J.C. Myers obtained a patent from the United States government to the lands in which the mineral interests are claimed by the defendant, on March 1, 1858. On December 13, 1861, John Manasco conveyed by warranty deed to Sarah Cox the said lands. It appears that Sarah Cox was the daughter of John Manasco, and that he gave her the land, and that he put her in possession of it prior to the execution of his deed to her. On this subject the husband of Sarah Cox testified as follows:

"Sarah Cox and I were married before the above said deed was executed. My best judgment is that we moved on the place before the deed was made to the above-described land. My wife claimed to be the owner. My best judgment and recollection is we lived on this land as our home until 1862 or 1863, when I went to the war, when my wife moved down to her father's. After the close of the war, Sarah Cox, my wife, and I moved back on this land and lived there until 1867, when we again left the place and then we, after a year's absence, moved back home; that is, on the land you are questioning me about. We then lived on this land until 1874, when we moved to Jasper, Ala."

At the time John Manasco gave this land to his daughter, he was in possession of the land, and there was evidence that he bought the land from said John C. Myers, although the record fails to show that there was a deed from Myers to Manasco evidencing the purchase. On this subject J.K.P. Manasco, a brother of Sarah Cox, testified as follows:

"John Manasco raised me. I knew John C. Myers. He lived southwest of where I was raised prior to the Civil War. I went over the ground with Mr. Pill and pointed out the place where the house was, the old trees, and the farm. There was more than one field; one was this side of where the old house was, in the S.E. 1/4 of the S.W. 1/4 of section 13, of about eight or ten acres. I am older than Dr. John Manasco. I helped plow the S.E. 1/4 of the S.W. 1/4, section 13, when it was being cultivated by John Manasco. He first took possession, my recollection is, about 1858 or 1859. I could not swear to the date; it was so long ago. Sarah Cox moved on some part of the land before the war. Prior to the time she moved on it, the land had been in cultivation by John Manasco. There were ten acres said to be inclosed. There was a little piece of woods in there that was not cultivated. Sarah Cox moved back on the land after the close of the war. I was gone eight years, but Sarah lived on that land after the war. I don't know how long, because I was away. I had a favorite mule they let go in part payment for the land purchased by John Manasco from J.C. or John C. Myers. I don't exactly remember the date. We tended it about three years before Sarah Cox moved on it, and that would make it about 1856 or 1857. We cultivated it the next year. John Myers moved to Moss Creek."

The evidence further shows that Sarah Cox and her husband, J.E. Cox, sold the mineral interest in the said land to the Georgia Pacific Railway Company, by a deed dated May 2, 1883, and that, by an unbroken chain of title, the defendant claims and owns the mineral interest in the land which was derived by said Georgia Pacific Railway Company by the deed made to said company by said Sarah Cox on May 2, 1883. The evidence further shows that on the 21st day of January, 1888, the heirs of said Sarah Cox filed their petition for a sale of said S.E. 1/4 of S.W. 1/4, section 13, township 14, range 9, Walker county, except the coal, iron ore, and other minerals therein, for division, and that D.J. Townley appeared at the sale and bought the land. The decree of sale was dated the 6th day of February, 1888, and the sale was made the 5th day of March, 1888, and was so reported and confirmed. The report showed the relinquishment by J.E. Cox, the surviving husband of Sarah Cox, of all his interest in said lands, so that the same might be sold, and showed a receipt by the heirs of said Sarah Cox, deceased, of their respective portions of the purchase money.

The above being the undisputed testimony, the defendant, for the purpose of showing that the plaintiff and the defendant claimed through a common source of title, viz., Sarah Cox, offered in evidence the following:

(1) A deed from C.L. Cunningham, commissioner appointed by the probate court to convey the title of the heirs of Sarah Cox to said land to the said D.J. Townley, the purchaser at said sale for division. This deed bears date October 2, 1889, and was duly recorded in record of deeds of Walker county on October 2, 1889.

(2) A deed from D.J. Townley and wife to R.M. Townley to said land, dated January 3, 1889, and acknowledged in December, 1896.

The plaintiff claimed title to the land through a deed which was made to him by said R.M. Townley, dated March 21, 1890. Under the authorities cited under subdivision 2 of this opinion, the above deeds were relevant for the purposes for which they were offered, and the trial court committed reversible error in sustaining the objection of the plaintiff to their introduction in evidence.

Fifth. In addition to the above, the...

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