Kinder v. La Salle Cnty. Carbon Coal Co.

• Decision Date: 15 February 1922
• Docket Number: No. 14318.,14318.
• Parties: KINDER et al. v. LA SALLE COUNTY CARBON COAL CO. et al.
• Court: Illinois Supreme Court

301 Ill. 362

133 N.E. 772

KINDER et al.

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

No. 14318.

Supreme Court of Illinois.

Dec. 22, 1921.

Rehearing Denied Feb. 15, 1922.

Bill by Joseph H. Kinder and others against the La Salle County Carbon Coal Company and others. Decree of dismissal, and complainants appeal.

Reversed and remanded.

Appeal from Circuit Court, La Salle County; Samuel C. Stough, judge.

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

Clarence Griggs, of Ottawa, Coleman & Coleman, of La Salle, Louis E. Hart, of Chicago, and Walter Panneck, of La Salle (John E. Coleman, of La Salle, and Louis E. Hart, of Chicago, of counsel), for appellees La Salle County Carbon Coal Co. and Matthiessen & Hegeler Zinc Co.

Clarence T. Morse, of Chicago, and McDougall & Chapman, of Ottawa, for other appellees.

THOMPSON, J.

The common source from which all parties to this litigation claim title to the lands in question is James Cowey, who obtained title to said lands by mesne conveyances from the United States and who was the owner in fee simple at the time the deeds in question were made. By a deed dated March 25, 1867, he severed the underlying mineral estate in the land from the surface estate in the land, and conveyed by warranty deed to the Chicago Coal Company, a corporation, ‘all the bituminous or stone coal, together with the right to mine the same,’ and by the same instrument quitclaimed ‘all the right in or title to the oil and minerals, of every description, underlying the above and foregoing described lots, tracts, and parcels of land.’ Appellees by mesne conveyances now claim the estate conveyed to the Chicago Coal Company. Subsequently, by a warranty deed dated May 17, 1869, Cowey conveyed a part of said lands to James Kinder, and by a similar deed he conveyed the remainder of the lands to William Burrell, excepting and reserving to himself ‘all bituminous or stone coal and other minerals, as well as all petroleum oil in, upon, or underlying said premises above described, togetherwith the right to mine and raise the same.’ Appellants are the successors in title to the Kinder and Burrell interests. Appellees claim that the word ‘minerals,’ used in the first deed, included the limestone, gravel, sand, and other similar minerals found in the lands. Appellants claim that the deed conveyed to appellees' predecessors in title the coal underlying the lands and the oil and other minerals underlying the coal, but that it conveyed nothing above the stratumof coal. Appellants filed their bill in the circuit court of La Salle county to remove as clouds upon their title all the claims of appellees and to quiet their title. They also claim title by adverse possession under sections 1 and 6 of the Limitations Act. General and special demurrers filed to the bill by appellees were sustained, and a decree was entered dismissing the bill for want to equity. This appeal is prosecuted to review that decree.

The bill alleges that appellants and their predecessors in title have been in the actual, visible, open, adverse, and exclusive possession, as owners in fee simple, of said lands from 1866 down to and including the present time, including in and claiming as a part of their dominant estate and surface right the title to and possession of all clay, sand, gravel, shale, limestone, and other stones and ledges in place, lying and being therein, and comprising the surface of the land; that during all of the time since 1869 they and their predecessors in title have been in the actual, visible, hostile, exclusive, continuous, and open possession, under claim of ownership, of and under color of title, to all the clay, sand, gravel, lime, rock, and other stone and ledges on, in, and underlying all of the premises, and have openly, notoriously, and continuously dug and quarried gravel and stone, commercially and extensively, from the premises during all of said time as such owners; that the surface of the premises consists of loose loam and clay underlaid by sand, gravel, shale, and limestone, which limestone, in places, is a few feet under the loam and at many other points comes to the top and is exposed and can only be taken from the land by means of open quarrying, which open quarrying will totally destroy the surface estate in removing the substances; that the coal and other minerals, if any, on the premises lie far below the surface of the land and far below the sand, gravel, shale, and limestone and can only be removed by mining; that they have continuously and openly and extensivelyquarried at many and divers places in all of the premises, commercially and under claim of ownership, the sand, gravel, and limestone, and have sold the same to all persons wishing to buy, including hundreds of customers in and about the premises and in the city of La Salle, lying adjacent thereto, and have sold large quantities of the material to the public authorities for the improvement and repair of highways; that during all these years since 1869 appellees and their predecessors in title who were in any way interested in or claimed any right or title to the portion of underlying minerals which had been severed from the surface estate knew that appellants and their predecessors in title were in possession of the quarries and were extensively quarrying and selling the sand, gravel, and limestone, and that appellees, from time to time throughout all of said period, purchased large quantities of the sand, gravel, and limestone from appellants and their predecessors in title, knowing at all times that appellants were quarrying and taking the same from the lands in question, and that appellants were claiming to be the actual and exclusive owners, in fee simple, of all the sand, gravel and limestone on and in the premises, and that appellants claimed the same as constituting a part of the surface estate of the lands described in the deeds through which appellants and appellees claim title.

[1][2][3][4] Under section 1 of the Limitations Act (Hurd's Rev. St. c. 83) adverse possession sufficient to defeat the legal title must be hostile in its inception and in its character and must so continue uninterruptedly for 20 years. There must be an assertion of ownership which is hostile to all others and which...