Duke Power Co. v. Toms, 4743.

• Decision Date: 10 March 1941
• Docket Number: No. 4743.,4743.
• Citation: 118 F.2d 443
• Parties: DUKE POWER CO. v. TOMS et al.
• Court: U.S. Court of Appeals — Fourth Circuit

118 F.2d 443 (1941)

DUKE POWER CO. v. TOMS et al.

No. 4743.

Circuit Court of Appeals, Fourth Circuit.

March 10, 1941.

W. S. O'B. Robinson, Jr., of Charlotte, N. C. (W. B. McGuire, Jr., of Charlotte, N. C., on the brief), for appellant.

Thomas H. Franks, of Hendersonville, N. C., and Thomas L. Johnson, of Asheville, N. C. (T. A. Uzzell, Jr., of Asheville, N. C., on the brief), for appellees.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

PARKER, Circuit Judge.

This is an appeal in an action filed in a North Carolina state court under Sec. 1743 of the North Carolina Code to quiet title to land, and removed by defendant into the court below. Plaintiffs alleged that they were the owners of a five-sixths interest in the minerals in a 100 acre tract of land described in the complaint, that defendant denied their right to the minerals and that defendant had flooded a large portion of the land with the result that their right of access to the minerals had been destroyed. Defendant denied the title of plaintiffs to the mineral rights, pleaded the right as a public service corporation to impound waters on the land and alleged that plaintiffs were barred from asserting any rights against defendant by the several statutes of limitations of the state, by laches, and by estoppel. The trial judge directed verdict in favor of plaintiffs and against defendant on issues directed to ownership, limitations, laches and estoppel; and from a judgment thereon to the effect that plaintiffs were the owners of the mineral rights in controversy, the defendant has appealed. Defendant contends that the court erred in directing verdict against it on the several issues submitted and also in not determining fully the controversy between the parties and adjudicating the rights of defendant with respect to ponding water on the land.

The facts may be briefly stated. Plaintiffs are the grantees of a five-sixth interest in the minerals in a 100 acre tract of land in Henderson County, North Carolina. They claim through mesne conveyances from one Levi Jones who conveyed the five-sixths mineral interest in the land to their predecessor in title in the years 1884 and 1887. Jones was shown to have entered into possession of the land in the year 1867 under a deed describing it by metes and bounds and to have continued in possession for more than seven years thereafter. In 1920 defendant, an electric power company, enjoying the right of eminent domain, constructed a power dam which obstructed the waters of Green River and caused them to flood a portion of the 100 acre tract. Plaintiffs acquired their title to the mineral interests some time after the construction of the dam and the flooding of the land and instituted this action in the year 1936.

On the question of the ownership of the mineral interests claimed by plaintiffs, we think that verdict was properly directed in their behalf. They showed more than seven years adverse possession by Levi Jones of the tract of land in controversy, under deed from Mordecai Morgan dated Dec. 12, 1867. This deed constituted color of title in Jones; and he was shown to have been in possession of the land, living on it, farming it and conducting mining operations on it from 1867 to the time of his conveyance of the mineral interests in the years 1884 and 1887. As he was in possession under color of title, his possession extended to the boundaries of the deed constituting color. Simmons v. Defiance Box Co., 153 N.C. 257, 69 S.E. 146. And the possession for more than seven years ripened his title to the entire property including the mineral interests; for under Sec. 426 of the North Carolina Code title is deemed to be out of the state where the state is not a party to the action, and, where title is out of the state, seven years adverse possession under known and visible lines and boundaries and under color of title is sufficient. N.C.Code Sec. 428; Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142. In 1884 and 1887 Jones conveyed five-sixths of these mineral interests to other persons, thereby separating the mineral interests from the surface rights in the land; and plaintiffs hold their interest in the minerals through mesne conveyances, the validity of which is not questioned.

Defendant contends that adverse possession is not established because it is said that the boundaries of the deed to Levi Jones have not been located. This contention seems not to have been seriously pressed in the court below; and we think it is without merit. M. L. Jones, son of Levi Jones, testified that he had known the boundaries of the land from childhood; and a surveyor located such of them as are not now covered by the waters of defendant's pond. The fact that, as a result of the impounding of water some of the boundaries have been submerged and cannot now be located does not destroy the value of the testimony as to their location at the time of the adverse possession relied on. It was clearly competent for the witness to testify that he knew the land described in the deed to Levi Jones and to the acts of possession occurring on that land. Virginia-Carolina Tie & Wood Co. v. Dunbar, 4 Cir., 106 F.2d 383; McQueen v. Graham, 183 N.C. 491, 111 S.E. 860; Singleton v. Roebuck, 178 N.C. 201, 100 S.E. 313.

As to laches, limitations and estoppel, nothing is shown to call any of these into play, except with respect to defendant's ponding of water, as to which we shall have more to say hereafter. After the severance of the mineral interests from the surface rights in the land, which occurred as a result of the execution of the deeds of 1884 and 1887, the rights of the holders of the mineral interests were not affected by the occupation and user made of the surface, except as such occupation and user interfered with the mineral rights. Vance v. Pritchard, 213 N.C. 552, 197 S.E. 182; Hoilman v. Johnson, 164 N.C. 268, 80 S.E. 249, 250. In the case last cited the rule is thus stated by the Supreme Court of North Carolina: "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 disseisen by any act which does not actually take the minerals out of his possession."

We agree with the court below, therefore, that plaintiffs were entitled to a directed verdict upon the issues submitted and upon such verdict to a judgment that they were the owners of the mineral interests in the land. This, however, does not dispose of the case. Defendant is admittedly a public service corporation enjoying the right of eminent domain. As such, it is entitled to maintain its dam and flood the lands in controversy even though this may interfere with plaintiffs' right of access to the minerals contained in the land; for in North Carolina the rule is well settled that such a corporation may proceed with the erection of works of a public nature which may affect the property of others, being answerable to the owners of the property for any resulting damage. Such works may not be abated at the suit of a private person injured thereby, but damages will be awarded him, the proceedings in such case being in the nature of proceedings to condemn an easement. Bruton v. Carolina Power & Light Co., 217 N.C. 1, 6 S.E.2d 822; Clinard v. Town of Kernersville, 215 N.C. 745, 3 S.E.2d 267; Rhodes v. Durham, 165 N.C. 679, 81 S.E. 938; Ridley v. Seaboard & Roanoke R. Co., 118 N.C. 996, 24 S.E. 730, 32 L.R.A. 708. The rule is thus stated in Rhodes v. Durham, supra 165 N.C. 679, 81 S.E. 939: "Our decisions are also in support of the proposition that where the injuries are by reason of structures or conditions permanent in their nature, and their existence and maintenance is guaranteed or protected by the power of eminent domain, or because the interest of the public therein is of such an exigent nature that right of abatement at the instance of an individual is of necessity denied, it is open to either plaintiff or defendant to demand that permanent damages be awarded; the proceedings in such cases to some extent taking on the nature of condemning an easement."

Since defendant asserted in its pleadings the right as a public service corporation to maintain the dam and pond which interfere with the right of access of plaintiffs to the minerals, a question was raised with respect to such right on its part, and a decision as to this as well as to the conflicting rights of plaintiffs was necessary to a complete determination of the controversy between the parties. Not only is this true, but the flooding of the land by defendant was set forth in the complaint and the prayer of the complaint was that the rights of the defendant as well as those of plaintiffs be determined in the action.

It is clear, however, that, if plaintiffs are not barred by limitations from asking damages on account of the ponding of water by defendant, any adjudication of the rights of the parties should include an award of the damages, if any, which plaintiffs have sustained as a result of such ponding. The right of defendant to invade the rights of plaintiffs is dependent upon the assertion of the right of eminent domain; and this in turn is dependent upon the payment of just compensation. Where, therefore, defendant, relying upon the right of eminent domain, asserts its right to flood lands in which plaintiffs own mineral interests in derogation of plaintiffs' right of access, the damages resulting to plaintiffs from such flooding must be ascertained as in a suit for condemnation. The fact that such assessment of damages is not specifically asked in the pleadings is immaterial. In addition to the fact that general relief is prayed, the parties specifically ask that their rights be determined; and defendant having asserted its right as a public service corporation to flood the lands, assessment of...