H.B. Jones Coal Company v. Mays
| Decision Date | 29 May 1928 |
| Citation | 225 Ky. 365 |
| Parties | H.B. Jones Coal Company v. Mays. |
| Court | United States State Supreme Court — District of Kentucky |
2. Mines and Minerals. — In action for trespass by mining coal from certain land, evidence held sufficient to take to jury question whether plaintiff acquired title thereto by adverse possession of himself and one under whom he claimed.
3. Adverse Possession. — Separate and distinct possessions may be tacked together by contract or otherwise, even if transferor of possession is mere intruder, providing there is privity between possessors and they hold adversely to real owner without interruption.
4. Adverse Possession. — Generally, formal conveyance is not essential to establish privity between successive possessors of land, if they claim under each other in some sufficient way, as under oral contract accompanied by actual possession.
5. Adverse Possession. — Oral contract for purchase of land is not void, though unenforceable under statute of frauds, and may be proved to establish privity between vendor and purchaser claiming title by adverse possession of himself and vendor in his action for trespass; essential fact being continuity of adverse possession.
6. Adverse Possession. — Oral evidence is admissible to show adverse possession.
7. Adverse Possession. — Testimony as to oral contract for purchase of land is competent to connect parties' successive occupancies in trespass by purchaser claiming title by adverse possession.
8. Adverse Possession. — If hiatus occurs between occupancies of successive claimants of land, rights of true owner constructively intervene and another possession must start anew to establish title by adverse possession.
9. Adverse Possession. — A general allegation of ownership of land may be supported by proof of adverse possession alone.
10. Mines and Minerals. — Right to mine coal having been severed by owner of land before accrual of title in one suing for trespass by mining of coal therefrom, plaintiff's possession was limited to surface and for benefit of mineral owner, not inconsistent with or adverse to mineral estate, so that he cannot recover damages for coal removed.
11. Mines and Minerals. — Where underlying minerals are severed from surface, by grant or reservation, surface owner holds subject to mineral owner's right to mine thereunder, but latter must leave support sufficient to maintain surface in natural state, though minerals are worth more than surface and mining operations are conducted with due care and skill.
12. Mines and Minerals. — If injury by subsidence of surface from removal of subjacent support by mineral owner may be repaired with reasonable effort and expense, measure of damages is reasonable cost of repairs, but if injury is permanent measure of damages is difference between market values of surface before and after injury.
Appeal from Lee Circuit Court.
GOURLEY & PARRISH for appellant.
E.B. ROSE and C.D. STAMPER for appellee.
Reversing.
This action was instituted by R.W. Mays against the H.B. Jones Coal Company to recover $1,500 in damages for trespass committed by mining coal from a 3 1/2 acre tract of land claimed by the plaintiff, and for injury to the surface thereof by subsidence of the soil. Mays alleged in his petition that he was the owner and entitled to the possession of the land; that the defendant forcibly entered thereon and removed coal, thereby causing cracks and fissures to be made in the surface. Demurrer to the petition was overruled, and in its answer the appellant denied the allegations of the petition, and by appropriate averments relied upon the statute of limitations and upon ownership of the minerals involved as a complete defense to the action. A reply traversing the affirmative allegations of the answer completed the issues. A motion to transfer the case to equity was denied. On a trial before a jury the court submitted the issue of ownership of the plaintiff based solely on adverse possession but did not submit the claim by defendant of ownership of the minerals. The jury found a verdict in favor of the plaintiff, allowing him $40 for coal taken and $25 for injury to the surface. The present appeal is from the judgment entered upon that verdict.
Complaint is made of refusal to transfer the case to equity, denial of a peremptory instruction requested, erroneous instructions given, admission of incompetent evidence, and that the evidence was insufficient to sustain the verdict. The action was to recover damages for trespass, and the answer presented no equitable defense. The case was triable by jury, and the court did not err in denying the motion to transfer it to equity. Bell v. Duncan, 196 Ky. 574, 245 S.W. 141.
It appeared in evidence that plaintiff had no record title to the property, but relied solely on adverse possession. He testified that the tract of land in controversy was, and had been, continuously, under fence since March or April, 1907, which was more than 19 years prior to the filing of the suit. He and others assisted H.K. Gray, to build the fence at the time stated. Gray kept up the fence until 1915, when appellee purchased the land from Gray, was placed in possession by him under an oral contract, and has since kept under fence the tract of land in controversy. Mays further stated that he had grown a crop on the land each year, and that during the years it was held by Gray it was likewise cultivated. Gray testified that he fenced the property originally in the spring of 1907, and cultivated it regularly for 8 years until he sold out to Mays and placed him in possession of the land.
The evidence was sufficient to take the case to the jury on the question of adverse possession by the plaintiff and the one under whom he claimed, if the verbal purchase from Gray was sufficient to connect the two separate possessions. It is the rule in this state that separate and distinct possessions may be tacked together, provided there is privity between the possessors and they hold adversely to the real owner without interruption. In Bowles v. Sharp, 4 Bibb 550, it was held that adverse possession might be transferred from one to another and continued so as to toll a right of entry. A mere intruder might thus transfer his possession. In Shannon v. Kinney, 1 A.K. Marsh. 3, 10 Am. Dec. 705, it was stated that it made no difference whether the possession be held uniformly under one title or at different times under different titles, provided the claim of title be always adverse to the real owner. It is immaterial whether the possession be held by the same or by a succession of individuals, provided the possession be continuous and uninterrupted. To the same effect are Shannon v. Dickenson, 1 A.K. Marsh. 5, Fox v. Hinton, 4 Bibb 559, and Thomas v. Harrow, 4 Bibb 563. In Hord v. Walton, 2 A.K. Marsh. 620, it was held that possession, when united with the possession of another from whom it was obtained, would be good if continued for the statutory period. The tacking of possession in that case, however, was based upon a decree. In Winn v. Wilhite, 5 J.J. Marsh. 521, it was held that it was not necessary that the possession should have continued in one person or in the same right, provided it had been adverse throughout, and when held by different persons there must be privity between them. The possession must be so blended as to make one continuous and entire occupancy, which may be done by contract or otherwise. In Adams v. Tiernan, 5 Dana 394, it was said that a purchaser was entitled to the benefit of the occupancy of the vendor. Cf. Dragoo v. Cooper, 9 Bush 629; Miniard v. Napier, 167 Ky. 208, 180 S.W. 363. In 2 C.J., sec. 66, it is said:
"It is a rule of almost universal application that, if there is privity between successive occupants holding adversely to the true title continuously, the successive periods of occupation may be united or tacked to each other to make up the time of adverse holding prescribed by the statute as against such title."
The rule as to privity is stated as follows:
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