Piney Oil & Gas Co. v. Scott

• Decision Date: 02 November 1934
• Citation: 258 Ky. 51
• Parties: Piney Oil & Gas Co. v. Scott et al.
• Court: United States State Supreme Court — District of Kentucky

258 Ky. 51

Piney Oil & Gas Co. v. Scott et al.

Court of Appeals of Kentucky.

Decided November 2, 1934.

1. Judgment. — Persons participating in former quiet title action involving same land by contributing to attorney's fees and those claiming under them, as well as parties to such action, were concluded by judgment in such action.

2. Mines and Minerals. — As respects adverse possession, after deed conveying minerals underlying particular tract was recorded, it was notice to world of grantee's ownership of minerals just as fully as if grantee had notice of ownership with copy of deed attached served upon each occupant of surface of land.

3. Mines and Minerals. — After recording of deed granting minerals underlying certain tract, grantor retaining ownership of surface and all persons claiming under him became trustees for grantee of minerals and those claiming under him, and could not, by possession of surface, disseise grantee of minerals unless they openly disavowed or repudiated trust and gave owner of mineral estate notice thereof (Ky. Stats., sec. 2366a-1).

4. Deeds. — "General warranty deed" must not only be in writing in proper form and signed by grantor, but he must acknowledge it before officer who must make and sign official certificate, and it must then be delivered to grantee before it becomes effective.

5. Mines and Minerals. — Persons occupying surface of land claiming under one who had conveyed minerals did not hold by adverse possession against owner of minerals, where no formal notice of adverse possession was given or where mineral estate was not disturbed.

6. Mines and Minerals. — As regards adverse possession by persons occupying surface of land against owners of minerals, any mining done on one tract can be of no avail to another person owning separate tract, though both were part of single tract described in deed conveying minerals.

7. Mines and Minerals. — On question whether persons occupying surface of land could claim adverse possession against owners of minerals, evidence held to show that mining on small scale was permissive, and hence necessary element of hostility was wanting.

Evidence showed that such mines began at outcrop where coal had been exposed by action of elements, and mining was continued in 150 or 200 feet until air got bad, when new openings were made. Evidence further showed that owners of minerals did not object to this because coal taken was outcrop coal of no commercial value and such operations lay bare the seam better than could be done by prospect openings, thus saving companies expense of making such prospect openings.

8. Adverse Possession. — "Adverse possession" means "adverse occupation and user," since word "possession" does not necessarily denote actual physical contact with object to be possessed, as where holder of legal title is as matter of law possessed of subject through "constructive possession," and this can only be ousted by actual physical entry and actual physical occupance thereafter.

9. Mines and Minerals. — Owner of minerals does not lose rights as against owner of surface by mere nonuser, his title can only be defeated by acts which actually take mineral out of his possession.

10. Adverse Possession. — Would-be disseisor who enters under bare color of title is no better off than one entering without color and marking off distinct line around what he intends to occupy, since each, if he acquires any claim, must do so because of occupation, claim, and use for statutory period.

11. Mines and Minerals. — Disseisor on surface may actually occupy and use only portion of territory embraced within marked line, or color of title, and law by construction extends actual occupation over it, but one claiming minerals by adverse possession has no potential possession of coal which has not been disturbed.

12. Adverse Possession. — A disseisor is no favorite of law, and must leave no gap unclosed, since every presumption is against him, and while title holder has constructive possession over entire tract when in actual possession of part, disseisor does not have such constructive possession.

13. Mines and Minerals. — "Adverse possession" of minerals means adverse occupation and user which must be wrought on property in question and cannot be accomplished by recording of oil and gas leases covering property.

14. Estoppel. — When grantor of minerals under designated tract subsequently perfected title, such title inured to benefit of grantee, as against person to whom grantor conveyed after perfecting title.

Appeal from Floyd Circuit Court.

COMBS & COMBS and T.H. HARMAN for appellant.

W.A. DAUGHERTY for appellee.

OPINION OF THE COURT BY DRURY, COMMISSIONER.

Reversing.

Piney Oil & Gas Company, H. Langdon Laws, and Stuart B. Sutphin, for the purpose of quieting their title to the minerals, oils, gases, and certain rights of way in and appurtenant to what we call the "Gearheart Land" in Floyd county and to obtain injunctive relief against interference with their exploitation and enjoyment thereof, on August 31, 1931, filed its petition in equity against Katherine Scott and 51 others. Their petition was dismissed, the defendants were adjudged to be the owners of the minerals to which plaintiffs had asserted title, and the plaintiffs have appealed.

On December 16, 1859, Valentine Gearheart and wife conveyed to James H. Laws the minerals underlying and appurtenant to a particularly described tract supposed to be 800 acres or more in Floyd county, and on December 24, 1859, after due acknowledgment, this deed was recorded in the proper office.

No right of any kind was by this deed left in the grantor to use or enjoy these minerals in any way. Valentine Gearheart continued to occupy and reside upon the surface of this tract, and it appears that neither he nor any of the defendants ever took that deed very seriously, for upon March 20, 1880, he conveyed 40 acres of this tract to Judith Hutton without making any exception of the minerals he had conveyed to Laws. He continued to live upon the tract until his death in 1881, and his widow resided there until her death in 1900, whereupon his son, Jonathan Gearheart, following in the footsteps of his father, on August 27 1900, conveyed to Ned Gearheart the one-third of this tract which he Jonathan had inherited from his father, by a deed containing a clause of general warranty, without making any exception of the minerals conveyed to Laws. On February 26, 1901, Ned Gearheart, Polly Mead (nee Gearheart), and Sallie Crabtree (nee Gearheart) executed partition deeds among themselves, which also contained clauses of general warranty, but no exceptions of the minerals, and that is true of all the divers deeds subsequently made by them and their vendees and appearing in this record. They and their vendees have also between 1895 and 1920 executed a number of oil and gas leases that appear in this record with like warranties of title but without exceptions of the minerals previously conveyed to Laws. The evidence indicates, however, these leases were soon abandoned and no drilling ever done under them, due, probably, to the discovery of the deed to Laws when the titles were examined.

On July 20, 1905 a general warranty deed without exception of the minerals was made by Sallie Crabtree et al. to L. Dow Scott for 40 acres of this land, and on May 28, 1913, he filed suit against Harry L. Laws, the only son and heir of James H. Laws, to quiet the title Scott asserted to the minerals under that 40 acres. That litigation reached this court and resulted adversely to Scott, as will be seen by reference to Scott v. Laws, 185 Ky. 440, 215 S.W. 81, 13 A.L.R. 369.

The record of that suit was made a part of this one both by pleading and by introduction in evidence.

In that suit Scott had asserted an adverse possession by himself and his grantors of both 15 years and 30 years, and had in his pleading alleged:

"He and those under whom he claims have at different times in each year mined and carried away large quantities of coal and have denied the right of all the world to mine thereon, have mined said quantities of coal to the exclusion of all the world and have so mined same openly, notoriously, adversely and peaceably and have at all times during said period claimed the whole of said tract of land including the coal and mineral thereunder as their own."

George Mead, one of the defendants in this case, admits he contributed money to aid Scott in the prosecution of that old case, and, after the mandate was filed the court on February 10, 1920, entered a judgment quieting the title of Laws and describing with meticulosity the entire tract which had by survey been found to contain 962.8 acres.

The testimony in this case shows that old suit was intended as a test suit, but, as the test proved to be unfavorable to the surface owners, they elected to not abide by it, or, as Mr. George Mead says in his testimony in this case in answer to why he and others did not sue to quiet their title at that time:

"We just thought there would be no use for anyone else to sue; that would look reasonable but we didn't get a square deal as we considered it and we never was satisfied with the decision of the court, of the Circuit Court or the Court of Appeals and we looked all the while for this opening we have now."

As to Geo. Mead, who admits participation in that suit by contributing to the attorney's fees and all claiming under him, and as to Katherine Scott and other defendants who claim under L. Dow Scott, the judgment entered on February 10, 1920, is conclusive, for in Bridges v. McAlister, 106 Ky. 791, 51 S.W. 603, 605, 21 Ky. Law Rep. 428, 45 L.R.A. 800, 90 Am. St. Rep. 267, we said:

"Neither the benefits of judgments on the one side nor the obligations on the other are limited exclusively to parties and their privies. * * * There is a numerous and important class of persons who, being neither parties upon the record nor...