Penny v. Central Coal & Coke Co.

• Decision Date: 29 April 1905
• Docket Number: 2,116.
• Citation: 138 F. 769
• Parties: PENNY et al. v. CENTRAL COAL & COKE CO.
• Court: U.S. Court of Appeals — Eighth Circuit

138 F. 769

PENNY et al. v. CENTRAL COAL & COKE CO.

No. 2,116.

United States Court of Appeals, Eighth Circuit.

April 29, 1905

T. B Pryor and F. A. Youmans, for plaintiffs in error.

Ira D Oglesby, for defendant in error.

Before SANBORN, Circuit Judge, and PHILIPS and RINER, District Judges.

PHILIPS District Judge.

The plaintiffs in error brought action in trespass against the defendant in error to recover the value of coal mined on, and removed from, a two-acre tract of land claimed to be in the possession of the Cherokee Chapel, African Methodist Episcopal Church, represented by the plaintiffs in err as trustees. Inasmuch as at the close of the plaintiffs' evidence the court directed a verdict for, and entered judgment in favor of, the defendant, it is necessary to give a summary of the facts disclosed by the evidence.

The religious body above named, first known as the 'Wollage Colored Church,' had, since about 1870, claimed and used the buildings on the two-acre tract of land in controversy as a house of worship and schoolhouse, up to the time of the alleged trespass. From one-half to two-thirds of the area of the two-acre tract claimed by the plaintiffs was inclosed by a rail fence, which inclosure during said period was used as a graveyard by the congregation. The church and schoolhouse were on that portion of the land not inclosed. About the time of the erection of the church building the pastor of the church came into possession of an instrument of writing purporting to have been executed by one W. F. McCullom and wife, and purporting to have been duly acknowledged before a justice of the peace named Watts. He took this instrument of writing to the office of the recorder of deeds at Ft. Smith Sebastian county, Ark., and delivered it to the recorder of deeds to be recorded. Afterwards this pastor called for the written instrument, and it was delivered to him by the recorder, who showed him the record of the paper in the record book at Ft. Smith. This paper he took home with him and read the same to the congregation in said church. He was unable to state the description of the land given therein, and specifically what it conveyed. This instrument the pastor delivered to one of the church trustees, and he has not seen the same since. The trustee to whom the paper was delivered moved away from that locality some years thereafter, and died about the year 1880.

At the time said paper was delivered to the recorder at Ft. Smith, Sebastian county, in which the land is situated, had been divided into two recording districts, one being at Ft. Smith and the other at Greenwood. The land described in the petition was situated in the Greenwood district. The records in the latter district were burned in 1880 or 1882. The plaintiffs never had the deed in their possession nor knew its contents. Part of the records covering lands in the Greenwood district were removed to Greenwood before the fire.

In 1870 or 1871 the county surveyor of said county made a survey of a tract of land in the vicinity of the church house and graveyard, and while the survey was being made said McCullom and others were present, when McCullom stated that he had sold to the negroes two acres of land, but did not state what two acres. This statement, upon objection by defendant, was excluded by the court. Two lines of the survey referred to ran near by the church and graveyard. The rail fence around the graveyard was subsequently replaced by a wire fence, and a frame house erected within a few feet of the log house used as a church.

The evidence showed that the defendant company had removed from under the land described in the complaint about 1,200 tons of coal, worth, after being delivered on top of the ground on board the cars, $1.10 per ton. The removal of said coal did not disturb the church building or graveyard.

The first objection interposed to the right of recovery by the plaintiffs in error is that they did not show such title as would authorize them to maintain the action of trespass for an injury to the freehold, such as removing coal from beneath the surface of the land. There was some evidence in this case from which the jury might have inferred that a deed had been made conveying the property in question for the benefit of said religious association. While the pastor of the church was unable to state from his recollection that the written instrument described the two-acre tract in question, yet that it was a deed pertaining to this property should not be regarded as a strained inference. This from the facts that the pastor took the written instrument to the recorder's office of the county where the land is situated, and left it there for record, where deeds of conveyance of lands are, under the law, recorded; that he afterwards took from the recorder's office the instrument and read it to the congregation in assembly, presumably that they might be advised and assured that they had acquired the title to the property on which they had erected buildings for worship and were educating their children, and where they were burying their dead. The fact that he then delivered it into the keeping of one of the trustees of the church would indicate that either the instrument itself or the church polity pointed out the trustees as the persons 'to have and to hold,' for the use of the society. As the evidence shows there are only three trustees, the presumption is that such number constituted the body of trustees of the organization from its inception. As the deed could only be manually placed in the hands of one of them, the further presumption would reasonably arise that he took it for the representative body. The failure to find the deed of record at Ft. Smith, where the pastor testified he delivered it for record, is sufficiently explained by the fact that the county had been divided into two recording districts, and that a part of the records for the land situated in the Green wood district, including the land in question, was removed there from Ft. Smith, and that the records of the Greenwood district, in 1880 or 1882, were destroyed by fire. If the said instrument purported to convey the parcel of land in question, as applied to the facts of this case, it was not essential that the plaintiffs in error should have gone further in their evidence, and shown that McCullom, from whom they claimed title, owned the land at the time of the alleged conveyance.

In the absence of an existing deed of conveyance to land, the law is that where a person, or association of persons, as in this case, has had the uninterrupted possession of a piece of land for 30 years or more, using it as his or its own, the common law of the land creates the presumption that the entry was under a purchase; and, nemine dissidente, the same law creates the presumption that the grantor had lawful right to convey. Such presumption does not always proceed on a positive belief that the thing assumed has actually taken place. Mr. Justice Field, in Fletcher v. Fuller, 120 U.S. 534-545, 7 Sup.Ct. 673, 30 L.Ed. 759, in a review of the decisions touching this question, said:

'When possession and use are long continued they create a presumption of lawful origin; that is, that they are founded upon such instruments and proceedings as in law would pass the right to the

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