Moore v. Empire Land Co.

• Decision Date: 23 January 1913
• Citation: 181 Ala. 344,61 So. 940
• Parties: MOORE et al. v. EMPIRE LAND CO.
• Court: Alabama Supreme Court

61 So. 940

181 Ala. 344

MOORE et al. v. EMPIRE LAND CO.

Supreme Court of Alabama

January 23, 1913

Rehearing Denied April 23, 1913

Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Bill to quiet title by the Empire Land Company against J.S. Moore and others. Decree for complainant, and respondents appeal. Affirmed in part and reversed and remanded in part.

James J. Ray, of Jasper, for appellants.

W.C Davis, of Jasper, and R.W. Stoutz, of Mobile, for appellee.

ANDERSON J.

The statute requires that a complainant, in order to maintain a bill thereunder to quiet title, must be in the possession of the land, actual or constructive, and while the present bill does not aver an actual possession, it does set up a constructive possession. Therefore the question that arises is whether or not the facts set up in said bill refute the claim of constructive possession, or are sufficient to show that the complainant did have the constructive possession when the bill was filed.

Title to land always gives constructive possession to the holder thereof, in the absence of the actual possession in another and this complainant claims title to the mineral interest in the land in question, and constructive possession thereof by virtue of its said title. It seems that the remote grantor of the appellee, H.A.. Key, went into possession of the land under color of title in 1867, and held same until 1874, when he conveyed the surface to another, and that the said grantee, and his successive grantees, have ever since been in the actual possession of the surface, with no one in the actual possession of the mineral. It would therefore seem that notwithstanding H.A. Key, in 1874, conveyed the surface separate and apart from the mineral right, that this, as a severance, was a mere legal fiction, and in the absence of an actual physical possession of the mineral interest, distinct from the possession of the surface, did not operate to sever the possession of the mineral right from the one being held by the possessor of the surface. In other words, in the absence of a physical severance, the possession of the mineral right went with and followed the possession of the surface, and the holder of the surface, if the grantor of the mineral right, held for the benefit of his grantee of said mineral right; or if the holder of the surface was the grantee of the surface right, then he held the possession of the mineral right for the benefit of his grantor of the surface right, but who reserved the mineral right. This is the effect of the holding in the case of Black Warrior Co. v. West, 170 Ala. 346, 54 So. 200, and while there was division among the members of the court, the opinion of the majority must be, and is, accepted as the law. We therefore hold that the complainant has made out, under the averments of its bill, a title to the minerals by adverse possession, and which gives it the constructive possession of same.

The bill not only seeks a cancellation of...