Gordon v. Park

• Decision Date: 31 March 1909
• Parties: GORDON et al. v. PARK et al.
• Court: Missouri Supreme Court

117 S.W. 1163

219 Mo. 600

GORDON et al. v. PARK et al.

Supreme Court of Missouri, Division No. 1.

March 31, 1909.

Rehearing Denied April 13, 1909.

1. APPEAL AND ERROR (§ 1127)—AFFIRMANCE —MOTION TO AFFIRM.

Where a motion to affirm on the ground that appellant did not file the transcript within the required time was not accompanied by the usual docket fee, the motion will not be considered, not having been properly filed.

2. MINES AND MINERALS (§ 49) — TITLE — ADVERSE POSSESSION — ELEMENTS.

In order to claim minerals under the statute of limitations, after a severance from the surface ownership, the surface owner must show actual, notorious, exclusive, continuous, peaceable, and hostile possession of the mine, independently of his possession of the surface, in the same manner as a stranger, actual possession being shown by opening and operating the mine, and the possession is continuous if the operation is carried on at such seasons as the nature of the work permits or the custom of the neighborhood requires, if there is some evidence of possession in the interval to connect the operations, when resumed, with the prior operations.

3. MINES AND MINERALS (§ 49)—RECOVERY OF POSSESSION—INSTRUCTIONS—CONTINUED POSSESSION.

In ejectment for a coal mine, where the court instructed that defendant must have had actual, exclusive, continued, and peaceable possession of the coal for 10 years to claim by limitations, if requested, an instruction should have been given explaining what would constitute "continued" possession.

4. APPEAL AND ERROR (§ 216)—OBJECTIONS BELOW — INSTRUCTIONS — REQUESTS — NECESSITY.

In ejectment for a coal mine, where the court instructed that, to claim by limitations, defendant must show actual, exclusive, continued possession, etc., for the statutory period, defendant cannot complain on appeal that the court did not instruct as to what constituted "continued" possession, where he did not ask such an instruction; the instructions for plaintiff being proper in their general outline.

5. APPEAL AND ERROR (§ 882)—REVIEW—INVITED ERROR—INSTRUCTIONS.

In ejectment for a coal mine, defendant cannot complain on appeal of an instruction that, to claim by limitations, he must show actual, exclusive, and continued possession, without explaining the meaning of "continued," where he used the same word without explanation in an instruction given for him.

6. TRIAL (§ 143)—QUESTION FOR JURY—CONFLICTING EVIDENCE.

Where the evidence was conflicting as to whether defendant's possession of a coal mine, which he claimed by limitations, was continuous, the question was for the jury.

7. MINES AND MINERALS (§ 50)—RECOVERY OF POSSESSION—JUDGMENT—DESCRIPTION OF PROPERTY—"PREMISES."

In ejectment for a coal mine, the judgment was not objectionable for adjudging that plaintiff recover possession of the "following described premises, to-wit: two-fifths of one-half of the coal situated under the surface," etc.; the word "premises" only referring to the mineral estate.

8. MINES AND MINERALS (§ 55) — CONVEYANCES — ESTATE IN MINERALS.

A separate estate may be created in minerals, either by grant or exception.

9. MINES AND MINERALS (§ 55)—CONVEYANCES—APPURTENANCES.

The grant of coal under the surface carries with it the use of the surface so far as necessary for mining operations.

Appeal from Circuit Court, Boone County; W. N. Evans, Special Judge.

Action by James Gordon and others against Allen Park and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

N. T. Gentry and Boyle G. Clark, for appellants. Webster Gordon (E. W. Hinton, of counsel), for respondents.

GRAVES, J.

This is the second appeal in this case. The former appeal was by the plaintiffs, and was heard by division 2 of this court. 202 Mo. 236, 100 S. W. 621, 119 Am. St. Rep. 802. The cause was reversed for errors in defendants' instructions, pointed out in the opinion. Upon a retrial the plaintiffs, by a verdict of nine jurors, recovered the possession of the property sued for, without damages or rents and profits, and judgment went accordingly.

In the former case, Burgess, J., first states certain undisputed facts and certain facts proven by the records, which statement is applicable here, and is as follows:

"This is an action in ejectment, instituted by plaintiff in the circuit court of Boone county, to recover possession of an undivided two-tenths of all the coal underlying certain land in said county owned by defendant Allen Park, which land and coal mine thereon he had leased to defendant George Melloway. The petition is in the usual form. The defendants filed separate answers, that of defendant Melloway being simply a general denial; but defendant Park's answer, in addition to denying each and every allegation in the petition, set up and pleaded the statute of limitations. * * *

"There is no dispute as to the ownership of the land, but only as to the coal underlying the same. Berkeley Estes was the common source of title. It appears from the evidence that on February 25, 1859, he conveyed to Boyle Gordon an undivided half interest in the coal mine in controversy, reciting in the deed that the other half had previously been conveyed to John B. Gordon. By deed, dated March 5, 1859, Boyle Gordon conveyed his undivided interest in the mine to George W. Gordon, the father of the plaintiffs. This deed was recorded in the recorder's office of Boone county, March 7, 1859. George W. Gordon died in 1860, and by the terms of his will, which was probated July 24, 1860, all of his real and personal estate was given to his widow, Ann Eliza Gordon, during her lifetime, and at her death to her children, Irvin Gordon, Irene Gordon, Jennie Gordon, Webster Gordon, and James Gordon, the two last named being the plaintiffs in this action. An inventory of all the real and personal estate of said George W. Gordon was made by the executors, Ann Eliza Gordon and James M. Gordon, but there was no mention in said inventory of any interest of the testator in said coal mine, nor was there any evidence that said George W. Gordon ever used or claimed any interest therein.

"The land upon which the coal mine in question is situated was conveyed by Berkeley Estes to his son-in-law, William A. Park, by deed executed June 1, 1868, which deed contained no reservation as to the said coal mine. William A. Park died on May 20, 1874, leaving a widow, a daughter, and an infant son, the latter being Allen Park, defendant in this suit. By his last will and testament, William A. Park gave this land to his widow during her lifetime and to his children at her death. His widow died in 1875, and his daughter died intestate a few years later, never having married. Defendant Allen Park, being a child three years old at the time of his mother's death, was taken to the home of his uncle, William B. Estes. Mr. Estes qualified as executor of the estate of William A. Park, deceased, and also qualified as guardian and curator of defendant Allen Park, and acted as such guardian and curator until February, 1894. On December 27, 1893, defendant Allen Park became of age, having married a short time prior thereto, and moved to this land, living thereon till March 16, 1901, when he sold it to Sarah E. Hayes. Mrs. Hayes and her husband had this mine worked till they sold the place to defendant George Melloway on February 2, 1903. The next day Melloway conveyed the land back to Allen Park. In neither of the deeds of conveyance was there mention of any reservation as to the said coal mine. On the day of the last-named conveyance, defendant Park executed a mining lease to said Melloway authorizing him to mine on said land."

Judge Burgess likewise makes a statement of the facts pro and con upon the question of adverse possession, but, as the case was retried, these facts we will state as they appear in this record.

The evidence upon the part of the plaintiffs upon the question of adverse possession of the coal mine tended to show that, whilst coal was taken therefrom at intervals, beginning at a time before the death of William A. Park, up to the time of suit, yet such acts were not continuous, but, on the other hand, coal would be taken out for a season or two (that is, during the winters) at a time, and then operations would cease for one or more years, then again be resumed for awhile, and again discontinued as above stated. The evidence for plaintiffs also tended to show that there was no period of 10 consecutive years during all this time when coal was mined or taken from the premises described in the petition. For the defendant, the evidence tended to show that there was a period of 10 consecutive years during which, in proper season (winter months), coal was taken from the mine on the land in question, and that William A. Park and his successors in title openly claimed title, not only to the surface, but to the coal as well. It also tends to show that no claim was made by plaintiffs until the bringing of this suit. Plaintiffs also showed by two witnesses that William A. Park admitted in his lifetime that the coal belonged to the Gordons. And plaintiffs' evidence further tended to show that the mining first done by William A Park was in connection with one of the John B. Gordon heirs, mentioned in the statement made by Judge Burgess. That by some agreement they jointly operated the mine. This sufficiently states the facts for a review of the legal questions presented.

The court refused a peremptory instruction to find for plaintiffs, but at their request gave the following:

"(1) The court instructs the jury, as plaintiffs and defendant Allen Park claim title from and through Berkeley Estes, deceased, to all the coal under the surface of the land described in plaintiffs' petition, it was sufficient for plaintiffs to show a derivative title from him to said coal, without proving their title further back.

"(2) The court instructs the jury that plaintiffs have proved a...