Gordon v. Park

• Decision Date: 19 March 1907
• Parties: GORDON et al. v. PARK et al.
• Court: Missouri Supreme Court

100 S.W. 621

202 Mo. 236

GORDON et al. v. PARK et al.

Supreme Court of Missouri, Division No. 2.

March 19, 1907.

1. TRIAL—DIRECTION OF VERDICT—WHEN AUTHORIZED.

Where, in ejectment for the possession of an undivided interest in coal underlying land owned by defendant, there was in support of the plea of limitations some evidence that defendant and those under whom he claimed title to the coal had been in the adverse possession for more than 10 consecutive years before suit, the refusal to take the case from the jury was not error.

2. MINES AND MINERALS — TITLE — ADVERSE POSSESSION.

Since a conveyance by an owner of land of the undivided half interest of the coal under the land, executed after a conveyance of the other half of the coal thereunder, operates as a severance of the coal from the land, so that thereafter mere possession of the surface does not extend to the possession of the coal, the holder of the paper title to the coal can recover in ejectment against the owner of the land, unless the latter and those under whom he claims title have been in the adverse possession of the coal as such, independent of the possession of the surface, for more than 10 years before suit.

3. SAME.

In ejectment for an undivided interest in coal underlying land owned by defendant, who pleaded limitations, it appeared that in 1859 a former owner of the land conveyed an undivided interest in the coal, that defendant's grantors from 1868 to 1874 mined coal on the land, after which nothing was done until 1878, when a tenant of the owner of the land mined coal on which he paid a royalty to such owner, and that the mine was operated during part of the years 1889, 1890, and 1891. Held insufficient to show that the holder of the paper title to the coal underlying the land had lost his title by the adverse possession thereof by the owners of the surface of the land.

4. SAME.

One owning the legal title to the coal underlying a tract of land need not, to retain title, exercise ownership over the coal, and, in order to be divested of his title by adverse possession, the possession must have been continuous and adverse for 10 years, as provided by Rev. St. 1899, § 4262 [Ann. St. 1906, p. 2335].

5. TRIAL—MISLEADING INSTRUCTIONS.

An instruction in ejectment for an undivided interest in coal underlving land owned by defendant, who claimed adverse possession, that if defendant had been in the adverse possession for more than 10 years before suit, and had continually claimed to be the owner of the land, the judgment must be for him, was misleading, because it told the jury that the defense of adverse possession was sustained by defendant's 10 years' adverse possession of the property and his continually claiming to be the owner of the land, when the ownership and possession of the land was not in issue.

6. APPEAL—ISSUES IN LOWER COURT—THEORY OF TRIAL.

Where a suit by a remainderman was tried in the court below on the theory that the life tenant was dead at the time of the institution of the suit, the case must be heard on the same theory on appeal, and the adverse party could not claim error on the ground that there was no proof that the life tenant was dead, or, if dead, when she died.

Appeal from Circuit Court, Boone County; A. H. Waller, Judge.

Action by James Gordon and another against Allen Park and others. From a judgment for defendants, plaintiffs appeal. Reversed, and remanded for new trial.

E. W. Hinton and Webster Gordon, for appellants. N. T. Gentry, for respondents.

BURGESS, J.

This an action in ejectment, instituted by plaintiffs 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 a 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 plead the statute of limitations. The trial resulted in a verdict and judgment for the defendants, from which judgment plaintiffs appeal.

There is no dispute as to the ownership of the land, but only as to the coal underlying the same. Berkley 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 Berkley 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. It would appear from the evidence that the coal mine in question had been worked only at intervals. Shortly prior to the Civil War George W. Gordon, plaintiffs' father, and John B. Gordon, the owner of the other half interest in the coal, did some mining on the land, and no further work was done until after 1868, when William A. Park, the purchaser of the land, and one C. H. Gordon, a son of John B. Gordon, operated the mine for two or three years. After the death of William A. Park no mining appears to have been done until 1878, when William B. Estes, defendant Allen's curator, rented the mine and collected some $8 royalty on the coal mined. During the years 1889, 1890, and 1891 there was considerable mining done on the land; the royalty collected by curator Estes amounting to about $50 each year. There was no evidence that any more mining was done until 1901, when the mines were worked by Hayes, and the work was then...