McCombs v. Stephenson

• Decision Date: 14 November 1907
• Parties: MCCOMBS v. STEPHENSON ET AL.
• Court: Alabama Supreme Court

44 So. 867

154 Ala. 109

MCCOMBS v. STEPHENSON ET AL.

Supreme Court of Alabama

November 14, 1907

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Ejectment by John T. McCombs against L. L. Stephenson and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Peyton H. Moore, for appellant.

Percy &amp Benners, for appellees.

SIMPSON J.

This action was statutory ejectment, brought by the appellant against the appellee to recover a certain quantity of "shale," described by the government subdivisions of land which it occupied. The plaintiff had previously conveyed to the defendant's vendor "all the coal ores, and other minerals and metals in, under, and upon" the land in question, and "all timber, water, and stone upon the same necessary for the development, working, and mining of said coal and other minerals, and the preparation of the same for the markets and the removal of same." It is admitted that "shale" is a kind of stone which is in layers, and that the defendant is getting this out using dynamite and other means, from the top, and grinding the shale up and manufacturing the same into brick.

The plaintiff claims that said "shale" was not conveyed by his said deed, while the defendant holds the contrary; and, for the purpose of raising this question, the plaintiff objected to the introduction of said deed. It is unnecessary to repeat the definitions in the dictionaries to show that according to all recognized authority, scientifically speaking, stone or rock is a mineral, yet the decisions are not altogether harmonious as to the meaning of the word in deeds of this character.

In a case before the New Jersey Court of Chancery, where the controversy was as to whether a deed conveying "mines and minerals" conveyed a certain stone paint, which is said to be "a substance resembling, in general appearance, red shale, so soft as to be easily cut with a knife when first excavated, but differing, in appearance and quality, from the surrounding earth," etc., the court said: "By the use of the terms 'mines and minerals' it is clear the grantor did not intend to include everything embraced in the mineral kingdom, as distinguished from what belongs to the animal and vegetable kingdoms. If he did, he parted with the soil itself. Such a construction would be inconsistent with and repugnant to the whole tenor of the grant. Nor can I see any propriety in confining the meaning of the terms used to any one of the subordinate divisions into which the mineral kingdom has been subdivided by chemists, either earthy, metallic, saline, or bituminous minerals." After referring to various definitions and the testimony of an expert, the court concludes that the stone paint, being "a body destitute of organization," etc., "distinct from ordinary earth," etc., and "valuable for its mineral properties," was included in the term "mines and minerals." Hartwell v. Camman, 10 N. J. Eq. 128, 64 Am. Dec. 448, 451, 452, et seq.

In the case of Dunham v. Kirkpatrick, 101 Pa. 36, 47 Am. Rep. 696, the Supreme Court of Pennsylvania held that a reservation of "all minerals" in a deed did not include petroleum oil. The argument of that court seems to be, first, that, to give a strict scientific construction to the reservation, it would be co-extensive with the grant, and nothing would be conveyed (which argument has no bearing on this case), and, second, that the bulk of mankind consider nothing as mineral except "things of a metallic nature." The cases cited in the note to this case indicate that the weight of authority is against it. 47 Am. Rep. 698.

The New York Court of Appeals, after citing anumber of English and other authorities, which are instructive, states that "the grant or reservation of minerals in a deed contemplates substances to be severed and taken away from the premises, and it is difficult to suppose that the parties to such a deed intended to exclude from the grant any description of valuable mineral which would come within the legal meaning of the word." In that case the court held that under the first deed, conveying "mineral ores," granite rock was not included, because it is not an ore; but under the second deed, conveying "all the minerals and ores," granite would have been included but for the qualifying words, "with the right to mine and remove same," "also the right to sink shafts and sufficient surface to erect suitable buildings for machinery and other buildings necessary and usual in mining and raising ores." From these expressions the court held that the intention was to convey only those "minerals obtained by underground working, and, as granite is not so obtained, it did not pass." Armstrong v. Lake Champlain Granite Co., 147 N.Y. 495, 42 N.E. 186, 49 Am. St. Rep. 683, 689, et seq.

The Supreme Court of Tennessee, in a well-considered opinion holds that natural gas, coal oil, or petroleum are minerals within the terms of a reservation. The court notes that a later Pennsylvania case (Gill v. Weston, 110 Pa. 313, 1 A. 921) seems to oppose the case of Dunham v. Kirkpatrick, supra, and remarks that "we do not think that the bulk of mankind could...