Davis v. Federal Land Bank of Columbia

• Decision Date: 05 March 1941
• Docket Number: 29.
• Citation: 13 S.E.2d 417,219 N.C. 248
• Parties: DAVIS et ux. v. FEDERAL LAND BANK OF COLUMBIA et al.
• Court: North Carolina Supreme Court

13 S.E.2d 417

219 N.C. 248

DAVIS et ux. v. FEDERAL LAND BANK OF COLUMBIA et al.

No. 29.

Supreme Court of North Carolina

March 5, 1941

This is an action to remove cloud upon title by adverse possession to the mining and mineral rights in a certain 122 1/2 acre tract of land in Sauratown Township Stokes, County.

There was allegation in the complaint and record evidence that the title to mining and mineral rights in the locus in quo had been severed from the title to the surface thereof, but there was no evidence that the plaintiffs had any record title to the mining and mineral rights. The defendants denied the title of the plaintiffs to the mining and mineral rights, and alleged that they were the owners and entitled to the possession of the locus in quo free from any claim or estate in the plaintiffs.

When the plaintiffs had introduced their evidence and rested their case the defendants moved to dismiss the action and for a judgment as in case of nonsuit, which motion was refused and defendants excepted; the defendants offered their evidence and renewed their motion to dismiss after all the evidence was in, which motion was allowed, and plaintiffs excepted C.S. § 567, and from judgment of nonsuit appealed to the Supreme Court, assigning error.

J W. Hall and Dallas C. Kirby, both of Danbury, and Roy L. Deal and Benbow & Hall, all of Winston-Salem, for appellants.

Ingle, Rucker & Ingle, of WinstonSalem, for appellee Land Bank.

SCHENCK Justice.

Title to the surface of the earth and title to the mining and mineral rights under the surface may be severed, and the mining and mineral rights being a part of the realty, title thereto is governed by the ordinary rules governing title to real property, and when severed they constitute two distinct estates. Vance v. Pritchard, 213 N.C. 552, 197 S.E. 182; Hoilman v. Johnson, 164 N.C. 268, 80 S.E. 249.

By virtue of C.S. § 430 adverse possession of real property under known and visible lines and boundaries for twenty years gives title in fee to the possessor of such property, and this without regard to a color of title.

"*** title founded upon adverse possession of a mine will be limited to that area of which actual possession has been enjoyed." 18 R.C.L. p. 1185, Mines, par. 93; Glynn v. Howell, [1909] 1 Ch. (Eng.) 666, 3 B.R.C. 405; 13 A.L.R. 375.

In ejectment the plaintiff must rely upon the strength of his own title, and not upon the weakness of his adversary's. To recover in such action the plaintiff must show title good against the world, or good against the defendant by estoppel. It makes no difference whether the defendant has title or not, the only inquiry being whether the plaintiff has it. Carson v. Jenkins, 206 N.C. 475, 174 S.E. 271, and cases there cited.

In the absence of any evidence of record title or of any color of title in the plaintiffs, the sole question presented on this appeal is whether the plaintiff introduced sufficient evidence to be submitted to the jury upon the issue of their possession of the mining and mineral rights in the locus in quo under known and visible lines and boundaries adversely to all persons for twenty years, there being no question of estoppel involved. The judge of the Superior Court held that they did not, and with this holding we concur.

The evidence fails to show the plaintiffs' possession of any particular mine or minerals for any definite period of time, in any particular area, or under any known and visible lines and boundaries. The nearest approach to such evidence is the testimony of the plaintiff W. H. Davis, as follows:

"Q. When did you commence prospecting *** for *** minerals? A. In 1904.

"Q. Then did you cease to prospect for those minerals since 1904? A. No sir. I prospected for anything I could find there of any value. Well, we drove five shafts, some of them bearing from 25 feet to 135, but regular prospecting openings in the outcroppings dozens of them. *** The last work I done in the way of mining minerals outside of the fertilizer materials was in 1936, I believe it was. We worked at the fertilizer material continuously since we found it. Some of the people worked for me in 1904, and on down to 1906 or '07, on up to 1914, and from 1914 on to 1930, and in 1930, we did a little heavier prospecting...