Gordon v. Million

• Decision Date: 28 February 1913
• Citation: 154 S.W. 99,248 Mo. 155
• Parties: IRVIN GORDON et al. v. JOSEPH H. MILLION et al., Appellants
• Court: Missouri Supreme Court

154 S.W. 99

248 Mo. 155

IRVIN GORDON et al. v. JOSEPH H. MILLION et al., Appellants

Supreme Court of Missouri, First Division

February 28, 1913

Appeal from Boone Circuit Court. -- Hon. Nat M. Shelton, Special Judge.

Affirmed.

McBaine & Clark for appellants.

(1) The proof failed to sustain the allegations of the petition. 7 Cyc. 266; Mining Co. v. Grogan, 53 Ill.App. 60; White on Mines and Mining Injuries, p. 1; Gloninger v Coal Co., 55 Pa. St. 9; Shaw v. Wallace, 25 N.J.L. 453. (2) The respondents failed to prove that appellants were ever in possession of the coal described in plaintiffs' petition. Lewellyn v. Lewellyn, 201 Mo. 306; Sec. 2385, R.S. 1909; R.S. 1899, sec. 3056; 27 Cyc 642; Zerres v. Vannia, 134 F. 610; Shaw v Tracy, 95 Mo. 532; Callahan v. Davis, 90 Mo. 78; Ins. Co. v. Cummins, 90 Mo. 271; Gordon v. Park, 219 Mo. 600; Sec. 2525, R.S. 1909; Sec. 650, R.S. 1899, amended, Laws 1909, p. 343. (3) Plaintiffs failed to prove title to the property involved. McAnaw v. Clark, 167 Mo. 443; Stewart v. Land Co., 200 Mo. 281; Duncan v. Able, 99 Mo. 188; Snuffer v. Howerton, 124 Mo. 637; McVey v. Carr, 159 Mo. 648; Nalle v. Thompson, 173 Mo. 595; Pierce v. Lee, 197 Mo. 480.

E. W. Hinton for respondents.

(1) The words, "coal mines situate on the east half of the southwest quarter, etc.," as used in the deed from Berkley Estes to Boyle Gordon, are sufficient to pass title to all the coal deposits under the entire tract, because a grant is to be construed most strongly against the grantor. Bray v. Conrad, 101 Mo. 331. (a) The term "coal mine" is commonly used in the sense of coal deposits, as when we speak of the coal mines of Alaska or of Manchuria. It is evident that this term was not used in Berkley Estes' deed in the sense of an opened mine or a pit or shaft, because the deed mentions the fact that the mines were showing themselves in the bed of the creek. It would be absurd to talk about opened shafts showing themselves in the bed of the creek. (b) If the words of the deed are given their obvious and natural meaning, the grant is of the coal deposits on the southwest quarter, etc., and naturally embraces all coal deposits under the entire tract, unless there is some restriction, either in express terms or by necessary implication, because the words are to be taken most strongly against the grantor, and if left in doubt, it must be resolved in favor of the grantee. Wordel v. Watson, 93 Mo. 107. (2) The possession of the surface under color of title to the coal and under express claim of title to the coal, was sufficient possession by defendants to enable the plaintiffs to maintain ejectment. Gordon v. Park, 219 Mo. 600. Where there is no physical occupancy by a third person, it is sufficient that the defendant have constructive possession. The mere constructive possession of the minerals from actual possession of the surface under claim of right to the whole, is not sufficient to create title by adverse possession, which is a vastly different thing. To apply such a rule would mean that ejectment would never lie for coal under the surface, except where the defendant was actually working it and mining it when the action was brought. (3) The plaintiff proved that Berkley Estes was the common source of title, and that is sufficient. Sloan v. Chitwood, 217 Mo. 462.

OPINION

GRAVES, J.

A reading of the record and the statements made by counsel upon the two sides of this controversy, demonstrates, that the statements made by either counsel could be safely adopted. We adopt that made by counsel for the respondents, because by a fraction it could be said to be the winner in a contest for brevity. Both are brief, however, and do not differ as to what is shown by the record. The questions are largely questions of law. Respondents thus state their case to this court:

"This was an ejectment to recover the coal under a part of the east half of the southwest quarter of section 16, township 48, range 12, in Boone county, Missouri. This is a part of the same tract involved in Gordon v. Park, 202 Mo. 236, 100 S.W. 621, and Gordon v. Park, 219 Mo. 600, 117 S.W. 1163, and the plaintiffs relied on the same chain of title, which is as follows:

"1. Deed from Berkley Estes to Boyle Gordon, executed February 26, 1859, and duly recorded, and conveying 'the equal undivided half of the coal mines situated on the east half of the southwest quarter, etc.; said mines are now showing themselves in the bed of the creek running through said described tract of land.'

"2. Deed from Boyle Gordon to George W. Gordon, containing the same description and recitals.

"3. Will of George W. Gordon, devising the residue of his property to the plaintiffs.

"For the purpose of proving that Berkley Estes was the common source of title, plaintiffs read:

"1. The will of Berkley Estes, devising this tract of land to his daughter, Sarah F. Estes, 'except the interest in the coal mines which I have sold, etc.'

"2. Deed from Allen Park, sole heir of Sarah F. Estes, deceased, to Mary E. Million, conveying that part of the tract in controversy. This deed contained no exception of the coal mines.

"3. The admission that Mary E. Million died intestate, leaving the defendants as her sole heirs at law.

"The oral evidence showing that no mining had ever been done on this part of the tract, and no pits or shafts had been opened, but that while Allen Park was the owner of the land, a well was dug, and that the men struck a seam or vein of coal.

"The plaintiff, Webster Gordon, also testified that the defendants were in possession of the surface, and claimed the coal also, because the deed under which they claimed contained no exception of the coal. The defendants offered no evidence, and the court sitting as a jury found for the plaintiffs.

"Defendants now appear to rely on three points, viz.:

"1. That the language of the deed from Berkley Estes, namely, 'The coal mine being, and situate on the east half of the southwest quarter, etc.,' was not sufficient to pass title to any and all coal deposits under that tract, but that because of the recitals that 'said mines are now showing themselves in the bed of the creek,' etc., the grant should be restricted to these precise croppings, or at least the same seams or veins so mentioned, and hence the plaintiff could not recover without proof identifying the coal under this part of the land as the same vein mentioned in the deed as cropping out in the bed of the creek above the ford.

"2. That there was no proof that defendants were in possession of the coal because no mines had been opened on the part of the land here in controversy.

"3. That there was no proof that Berkley Estes was the common source of title, and hence no proof of plaintiffs' title to the coal."

This statement had page references to the abstract which we have omitted in quoting the statement. It may be that appellants' contentions are not as fully stated by respondents as they are urged in the brief, but upon the whole this statement of the respondents sufficiently states the case, and we adopt it because it is as concise and fair as we could make it.

I. The first point made by the appellants is that the proof failed to sustain the allegations of the petition. About this contention cluster a number of points which we will separately discuss. First, the point raises the question as to what is the real meaning of the Berkley Estes deed. The terms of that deed had better perhaps be more fully outlined, because its language becomes important. The deed is short, and for this discussion it had best be set out:

"Know all men by these presents that I, Berkley Estes, of the county of Boone and State of Missouri, in consideration of the sum of fifty dollars in hands paid, the receipt of which is hereby acknowledged, have this day granted, bargained and sold, and by these presents do grant, bargain, sell, and convey unto Boyle Gordon, his heirs, and assigns, the one equal, undivided half of the coal mines being and situate on the east half of the southwest quarter of section sixteen, township forty eight and range twelve in Boone county, Missouri; said mines are now showing themselves in the bed of the creek running through said described tract of land about one hundred and fifty yards more or less above the ford of said creek on the road leading from Fulton to Columbia. The other half of said mines having been sold to John B. Gordon in his life-time by Richard Estes by deed dated 31st of May, 1850. To have and to hold said undivided half of said mines unto the said Boyle Gordon, his heirs and assigns forever."

That there may be a complete severance of the mineral estate in lands from the surface estate is clearly shown by the authorities in this State and elsewhere. In the case of Gordon v. Park, 219 Mo. 600, 117 S.W. 1163, in discussing an objection urged against the judgment nisi in that case, we said:

"The objection urged is in the use of the word 'premises' in the last sentence. As said by Black, J., in Snoddy v. Bolen, 122 Mo. 479, 25 S.W. 932: 'Coal, mineral and stone under the surface of the earth are subjects of grant and exceptions; and when excepted in a deed become a separate and distinct inheritance. They may be conveyed separate from the surface. [Wardell v. Watson, 93 Mo. 107, 5 S.W. 605; Caldwell v. Fulton, 31 Pa. 475; Lillibridge v. Coal Co., 143 Pa. 293, 22 A. 1035; Coal Co. v. Mellon, 152 Pa. 286, 25 A. 597.]'

"In this case the separate inheritances were created by deed of grant, whilst in the Snoddy case they were created by exception in the deed. But whether created by a deed directly granting the mineral estate, or by an exception in a deed granting the surface estate, there are created two separate and distinct...