Kinder v. La Salle Cnty. Carbon Coal Co.

• Decision Date: 11 December 1923
• Docket Number: No. 15520.,15520.
• Citation: 310 Ill. 126,141 N.E. 537
• Parties: KINDER et al. v. LA SALLE COUNTY CARBON COAL CO. et al.
• Court: Illinois Supreme Court

310 Ill. 126

141 N.E. 537

KINDER et al.

v.LA SALLE COUNTY CARBON COAL CO. et al.

No. 15520.

Supreme Court of Illinois.

Oct. 20, 1923.

Rehearing Denied Dec. 11, 1923.

Suit by Joseph H. Kinder and others against the La Salle County Carbon Coal Company and others. Decree for complainants, and the named defendant and another appeal, and complainants assign cross-errors to failure to pass on certain claims.

Affirmed.

Appeal from Circuit Court, La Salle County; Edgar Eldredge, judge.

Walter Panneck, of La Salle, McDougall & Chapman, of Ottawa, and Clarence T. Morse, of Chicago (Clarence T. Morse, of Chicago, and Clarence B. Chapman, of Otta. wa, of counsel), for appellants.

Woodward, Hibbs & Pool, of Ottawa, James H. Rennick, of Toulon, and Gerald G. Barry, of Chicago, for appellees.

FARMER, C. J.

Appellees filed their amended bill in chancery against appellants and other defendants in the circuit court of La Salle county, claiming they were owners of the surface of the land described in the bill, above the coal, and had the right to remove therefrom the sand, gravel, clay, shale, and limestone; that defendants claimed title to the substances mentioned which were under the agricultural surface, and some of them had placed clouds on appellees' title. The bill prayed the removal of the clouds and that the title to all the surface above the coal be decreed to be in appellees and their title quieted. The defendants, by their answer, denied appellees were the owners of the sand, gravel, clay, shale, limestone, and other mineral underlying the top soil. The court rendered a decree in favor of the complainants, the appellees.

The facts not in dispute are that on March 25, 1867, James Cowey and wife conveyed to the Chicago Coal Company ‘all the bituminous or stone coal, together with the right to mine the same, underlying’ all of the premises in controversy and a large amount of other land. The deed described 1,045 acres, and, following the grant by legal description, the habendum contains these words:

‘Said party of the first part also hereby grants, conveys, quitclaims and releases to said party of the second part, its successors and assigns, all the rights in or title to the oil and minerals, of every description, underlying the above and foregoing lots, tracts and parcels of land which he owns or is now possessed of, to have and to hold the same forever.’

May 17, 1869, Cowey and wife conveyed by warranty deed, for the expressed consideration of $3,195, to James Kinder, 89 acres of the land in controversy, ‘reserving and excepting to said party of the first part all bituminous or stone coal and other minerals, as well as all petroleum oil, in, upon or underlying said premises above described, together with the right to mine and raise the same.’ On the same day Cowey and wife conveyed by warranty deed to William Burrell, for the expressed consideration of $3,805, 106 acres of the land in controversy, with the same reservations. The land involved in this litigation is 185 acres of the land conveyed by Cowey to Kinder and Burrell. Kinder died testate in 1883 and devised his land to his children, subject to a life estate in his widow, Ann G. Kinder. Burrell conveyed his land in 1881 to Richard T. Kinder and Timothy Healy. Healy died testate in 1884 and by his will devised his interest in the land to Ann G. Kinder. She died intestate in 1897. After her death all the land was sold under a partition decree in March, 1899, and purchased by appellees, complainants in the bill, who received a deed therefor from the master in chancery.

By their bill appellees claimed title by virtue of the deed from Cowey and mesne conveyances, to be the owners of all the surface above the coal, their ownership embracing the agricultural surface, sand, gravel, shale, clay, and limestone. They also claimed title by adverse possession under sections 1 and 6 of the statute of limitations. Defendants to the bill, who are appellants here, by their answer denied appellees were the owners of any part of the land except the agricultural surface. The answer admits the agricultural surface consists of loose loam, shading into clay, sand, and gravel, under which is limestone, shale, and coal, but denies appellees have any interest in the coal and minerals underlying the premises, denies they have been in possession of any of said minerals, and denies they are entitled to any of the relief prayed. The circuit court sustained a demurrer to and dismissed the original bill. That decree was reversed by this court and the cause remanded, with directions to overrule the demurrer. Kinder v. La Salle County Carbon Coal Co., 301 Ill. 362, 133 N. E. 772. After the case was remanded appellees filed their amended bill, the cause was heard on bill and answer, and a decree rendered that the deed from Cowey to the Chicago Coal Company conveyed only minerals which had to be taken out by mining operations; that the parties to the deed did not intend by it to pass title to any part of the surface; that limestone was a part of the surface and title thereto remained in Cowey; that by his deeds to Kinder and Burrell he intended to convey, and the grantees intended to acquire, all the surface, including limestone. The decree found appellees were owners in fee of the surface and had the right to use and remove the limestone, sand, gravel, clay, and shale, and quieted their title and perpetually enjoined defendants from asserting title. The court made no finding as to appellees' title under either section of the statute of limitations nor as to title to minerals between the limestone and coal. The La Salle County Carbon Coal Company and Frank F. Follett, receiver of the Northern Illinois Coal & Iron Company, have prosecuted this appeal.

When the deeds were made by Cowey to the Chicago Coal Company and to Burrell and Kinder, Cowey operated a coal mine just across the Little Vermilion river from the land of appellees, raising the coal by cages. Limestone then had no commercial value, being used principally for foundations of buildings. No limestone was shown to have been taken off appellees' land prior to 1888. Cement was not made of limestone prior to 1874 and but little was manufactured from limestone prior to 1880. Since 1900 it has been used very extensively for the manufacture of Portland cement. From approximately the southeast corner of appellees' land there is a ridge of mostly exposed limestone, run ning northwesterly across the entire land. The stone dips on each side of the ridge, and on the east side is covered to a depth of about 4 feet in most places. West of the ridge the dip is more abrupt toward the river, and at some places the stone is covered to a depth of approximately 50 or more feet and at other places a less depth, some of it being very near the top. There are about 16 acres of the land in pasture, which cannot be cultivated because of the stone, and about 12 acres along ravines which empty in the Little Vermilion river, which is the west boundary of appellees' land. The limestone at the bluff of the river is from 20 to 40 feet thick and is covered with gravel and sand. The overburden of sand and gravel above the limestone varies in depth in places from 2 of 4 feet. What we have said about the character of the land, limestone, and its overburden we think will serve sufficiently to show that there is no place on the land where it would be practicable to remove the limestone by underground methods without destruction of the top soil or agricultural surface. The only practicable way of mining the limestone is by quarrying it from the top.

The decree finds that at the time Cowey made the conveyances, coal, which was then being mined in the vicinity, was the only mineral known to underlie the land for which there was a profitable market; that at the time the conveyances were made the land consisted of loose loam, clay, gravel, limestone, shale, sand, and coal; that the land was rough and covered with stone, sand, gravel, trees, shrubs, and was intersected with ravines; that an exposed ridge of limestone extends from the southeast corner of the land to the northwest corner and in various places throughout the premises the limestone crops out and is a part of the surface; that the limestone forms part of the surface along practically all the westerly side of the land; that where it is not exposed it is covered with loose loam, sand, gravel, and clay, in which vegetation grows and farm products are raised; that the limestone strata, the loose loam, sand, gravel, clay, and shale superimposed above the limestone are parts of the surface and appellees are declared to be the owners. The court states he makes no finding as to title by adverse possession, contemporaneous construction of the deeds, or upon color of title and payment of taxes, nor as to the minerals, if any, lying between the limestone and the coal.

Appellees contend the decree is right in so far as it declares them to be the owners of the limestone and the sand, gravel, and clay superimposed thereon, but assign cross-errors on the failure of the court to pass upon their claim of title by adverse possession, and on the failure of the court to determine whether they own the minerals and substances between the limestone and the coal.

This court did not pass on the record title on the former appeal, although that question was presented. What we decided was that title to a mineral stratum may be acquired by adverse possession and may be proved in the same way as title to the surface. As the bill alleged title by adverse possession in addition to record title, we held the trial court should have overruled the demurrer to the bill for that reason.

[1] Appellants contend that appellees own only the agricultural soil under the record title, while appellees claim to own by the record title everything above the coal; that appellants' title is limited to minerals like coal and oil so located that they...