Hooper v. Bankhead & Bankhead

• Decision Date: 31 January 1911
• Citation: 171 Ala. 626,54 So. 549
• Parties: HOOPER ET AL. v. BANKHEAD & BANKHEAD.
• Court: Alabama Supreme Court

54 So. 549

171 Ala. 626

HOOPER ET AL. v. BANKHEAD & BANKHEAD.

Supreme Court of Alabama

January 31, 1911

Appeal from Circuit Court, Walker County; James J. Ray, Judge.

Action by Bankhead & Bankhead against J. De B. Hooper and others. From a judgment for plaintiff, defendants appeal. Affirmed.

J. M Chilton, for appellants.

Bankhead & Bankhead, pro se.

McCLELLAN J.

Statutory ejectment, instituted by appellees against appellants, for the recovery of the mineral interest, only, in the lands described in the complaint. The plaintiffs would deduce their title, to one tract, from one Benager Williams, through mesne conveyances, and, to the other, from one Justice, through mesne conveyances. Both Williams and Justice appear to have been the original patentees of the lands in question. The defendants would trace their rights in the premises back to the state of Alabama; its asserted title being the product of tax sales and purchases by the state of Alabama. The verdict returned by the jury reads: "We, the jury, find for the plaintiffs for the lands sued for. A. A. Douglass foreman." The judgment declares that plaintiffs recover "the possession of the following lands, to wit, sued for in the complaint: The coal, iron ore, and other minerals in the" lands described in the complaint.

Minerals in situ are a part of the realty--are lands. Hence the employment of the term "lands" in the verdict and in the judgment, as was done, was not at all inapt. Nor are the verdict and judgment broader than the interest claimed in the complaint.

In the bill it is recited: "It is admitted that W. H. Show, if present, would testify that he was a brother-in-law of Benager Williams, deceased, and that said Benager Williams died soon after the Civil War. He was never married. He left a mother who has been dead about 15 years, and five sisters as follows"--naming them.

A fair construction of the foregoing recitals leaves no room for doubt, we think, that the mother and five sisters of Williams were all the heirs left by him upon his decease. Singo v McGhee, 160 Ala. 252, 253, 49 So. 290.

As against a stranger to the title, one, or more, less than all, tenants in common may sue for and recover the whole of the realty, the subject of the tenancy in common, and the recovery inures to the benefit of all. Dorlan v. Westervitch, 140 Ala. 283, 37 So. 382, 103 Am. St. Rep. 35-41; Lecroix v. Malone, 157 Ala. 434, 47 S.W. 725; Blakeney v. Du Bose, 52 So. 746; Freeman on Cotenancy, § 343; note to Marshall v. Palmer, 50 Am. St. Rep. 838-843; note to Williams v. Coal Creek Coal Co., 6 L. R. A. (N. S.) 710 et seq.; Warvelle on Eject. § 123; Griswold v. Railroad Co., 12 N.D. 435, 97 N.W. 538, 102 Am. St. Rep. 572.

There are, in other jurisdictions, decisions in express opposition to the stated doctrine. They may be found, in part, by reference to Warvelle on Eject. § 124; 15 Cyc. p. 183.

The several decisions delivered here, cited by counsel for appellants as opposing the doctrine of Dorlan v. Westervitch and its successors, do not, when properly analyzed, so conclude. There is no factor of damages or mesne profits in this case, for none were awarded; hence the application of the rule announced to that matter is not to be considered on this appeal. We have been unable to find any deliverance by this court aside from Dorlan v. Westervitch, Lecroix v. Malone, and Blakeney v. Du Bose, supporting the doctrine before announced; and it must be conceded that, according to express statement, the announcement made in Dorlan v. Westervitch in this regard was dicta, as well as unsupported by the three decisions of this court therein cited. Notwithstanding, after a careful consideration of the reasons underlying the respective conclusions to which, on the present inquiry, learned courts and text-writers have yielded assent, we are convinced that the doctrine before stated is sound. No other conclusion appears to us as rationally possible, when it is accepted, as must be done, that as against all the world, except fellow tenants in common, a tenant in common is entitled to the unrestricted possession of the whole of the subject of the tenancy in common. Being so entitled, he must have his remedy against one without right to the possession. If such an one may, in effect, claim and assert and also retain an associate possession with one entitled to the rightful possession before stated, the inevitable result must be to establish for the stranger a status and relation equivalent, for all practical purposes, to that belonging to a tenant in common--a status and relation that rests, not on right, for such he has not, but on the mere negative fact that all of those entitled to the possession, per my et per tout, have not impleaded him. The result, in our opinion, refutes the proposition that must underlie it, viz., that tenants in common can only recover to the extent of his, or their, interest or interests, against one without right to be in possession. One wrongfully in possession certainly ought not to be heard to complain of an ejection in toto, or be permitted to prolong such a possession solely because all those entitled to the possession have not brought their action to oust him.

There was no evidence tending, even, to support such an adverse possession, of the mineral interest in question, as operated to divest the title of the true owners thereto. After severance of the mineral, in situ, from the surface, the possession of the latter is not possession of the former. The effect of the severance is to create two closes, adjoining but separate. 20 Am. & Eng. Ency. Law, p. 774; 1 Cyc. pp. 994, 995; Caldwell v. Copeland, 37 Pa. 427, 78 Am. Dec. 436; L. & N. R. R. Co. v. Massey, 136 Ala. 156, 33 So. 896, 96 Am. St. Rep. 17; Barrenger & Adams on Mines, §§ 568-575; White on Mines, § 436; Wallace v. Elm Grove Coal Co., 58 W.Va. 449, 52 S.E. 485; Murray v. Allred, 100 Tenn. 100, 43 S.W. 355, 39 L. R. A. 249, 253, 66 Am. St. Rep. 740; Chartiers Block Coal Co. v. Mellon, 152 Pa. 286, 25 A. 597, 18 L. R. A. 702, 705, 34 Am. St. Rep. 645.

The mineral, after severance, is a corporeal hereditament; and mere nonuser will not affect the owner's title; and to lose his right, by adverse possession, the owner must be disseised. 1 Cyc. pp. 994, 995; Wallace v. Elm Grove Coal Co., supra; Armstrong v. Caldwell, 53 Pa. 284; Caldwell v. Copeland, supra; Caldwell v. Fulton, 31 Pa. 475, 72 Am. Dec. 760; Kingsley v. Hillside Coal Co., 144 Pa. 613, 23 A. 250; Williams v. Gibson, 84 Ala. 228, 4 So. 350, 5 Am. St. Rep. 368.

The mere claim to property, unaccompanied by adverse possession, will not render available, to the claimant against the owner, the statute of limitations. 25 Cyc. p. 1012; Newman v. Newman, 60 W.Va. 371, 55 S.E. 377, 7 L. R. A. (N. S.) 370; Sewell v. Nelson, 113 Ky. 171, 179, 180, 67 S.W. 985; Warvelle on Eject. §§ 418, 419; Pugh v. Youngblood, 69 Ala. 296; Doe ex dem. v. Anderson, 79 Ala. 209.

In Pugh v. Youngblood, supra, wherein the limitation, then in force, against actions, after the defined period, presenting for determination rights with respect to lands sold for taxes, was under consideration, it was expressly ruled that a prerequisite to the protection the limitation was intended to afford was that the asserter thereof should have been, for the period, in "open, continuous possession with a claim of title. * * *" The possession referred to in Pugh v. Youngblood, and contemplated in the general proposition above announced, must be actual. No other character of possession could meet the conditions pronounced in Pugh v. Youngblood. In short, in order for a purchaser of a tax title to invoke the protection of the statute of limitations considered in Pugh v. Youngblood and of a like character of statute now Code 1907, § 2311, he must have had, for the requisite period, adverse possession of the premises involved. Doe ex dem. v. Anderson, supra, and Jones v. Randle, 68 Ala. 261, also so conclude.

What will constitute adverse possession of minerals, severed, in title, from the soil?

Barringer & Adams on Mines, at pages 568, 569, say: "Such a possession (adverse) must be actual, notorious, exclusive, continuous, peaceable and hostile for the statutory period. And in these respects the surface owner is in no better position than a stranger. * * * Actual possession is taken by the opening of mines and carrying on of mining operations. That possession is continuous if the operations are continuous, or are carried on continuously at such seasons as the nature of the business and the customs of the country permit or required. A cessation of operations in accordance with the custom of the neighborhood, or from necessity occasioned by some natural agency, would not be an interruption of the possession. But there must be something evidencing possession in the interval which connects the operations when resumed with those which have gone before, and to distinguish such possession from a series of repeated acts of trespass."

To the same effect is White on Mines, §§ 430, 431, 432, 433.

Under the authorities, it is essential to effect adverse possession of minerals, after severance, in title, from the surface that the adverse claimant do some act or acts evincing a permanency of occupation and use, as distinguished from acts merely occasional, desultory, or temporary--acts suitable to the enjoyment and appropriation of the mineral so claimed, and hostile to the rights of the owner. Warvelle, § 420; 1 Cyc. pp. 983-985, 994, 995; Newman v. Newman, supra; Eureka Co. v. Norment, 104 Ala. 625, 16 So. 579; Alexander v. Savage, 90 Ala. 383, 8 So. 93; Elyton Co. v. Denny, 108 Ala. 553, 18 So. 561; Jackson Lumber Co. v. McCreary, 137 Ala. 282, 34 So. 850; Washington v. Norwood, 128...