Pollard v. Simpson

• Decision Date: 22 November 1940
• Docket Number: 7 Div. 632.
• Citation: 199 So. 560,240 Ala. 401
• Parties: POLLARD v. SIMPSON ET AL.
• Court: Alabama Supreme Court

199 So. 560

240 Ala. 401

POLLARD v. SIMPSON ET AL.

7 Div. 632.

Supreme Court of Alabama

November 22, 1940

Rehearing Denied Jan. 16, 1941.

Appeal from Circuit Court, St. Clair County, Southern Division; W M. Rayburn, Judge.

Bill to enjoin mining and removal of coal and for accounting by H. D Pollard, as receiver of the Central of Georgia Railway against James A. Simpson and another. From a decree for respondents, complainant appeals.

Affirmed.

Embry & Weaver, of Pell City, for appellant.

W. T. Starnes, of Pell City, for appellee Mrs. Simpson.

LIVINGSTON Justice.

H. D. Pollard, as receiver of the Central of Georgia Railway Company, brought this bill of complaint in the Circuit Court of St. Clair County, in Equity, against James A. Simpson, Mrs. M. L. Simpson, alias Lou Simpson, and Herman Owens. The bill was amended by striking Herman Owens as a party respondent.

The bill alleges in substance that the Central of Georgia Railway Company is, and has been for more than twenty years, the owner and in possession of the following described real estate situated in the Northern Judicial Circuit of St. Clair County, Alabama, to-wit: "All of the coal, iron ore and other minerals in, under and upon the North half of the Northwest fourth of section eight (8), township sixteen (16), range two (2) East."

The bill charges that the respondents without the consent and authority of complainant commenced the mining and removal of coal from said lands at different intervals, and from time to time have mined and removed from same a large quantity of coal which was in place "in, under and upon" said lands, the exact quantity or amount so mined and removed being unknown to complainant, but which complainant, on information and belief, alleges to be 1200 tons of the value of $2,000.

The bill further charges that respondents have driven openings or shafts through the surface of the lands into the deposits of coal in or under the same, and are about to remove other large quantities of coal therefrom.

The prayer of the bill is for an injunction restraining respondents, and each of them, and any and all persons, agents or employees acting under the authority of respondents, from further mining, removing or in any way interfering with the coal in, on or under the above-described real estate, and for an accounting of the coal already removed.

Demurrers were filed to the bill of complaint and overruled.

The respondents, James A. Simpson and Mrs. M. L. Simpson, filed their answer denying the material allegations of the bill, and specifically allege that they are the owners of all the property described in the bill, and, further, that they acquired title to said property by adverse possession for the statutory period.

The parties to this cause have made an agreement, which is set out in the record, to the effect that complainant claims record title to the minerals involved in this suit, by and through conveyances beginning with a deed from Robert Blythe and others to F. M. Thomason and others, bearing date December 11, 1886, and through mesne conveyances to the Central of Georgia Railway Company by deed of the Tunnell Coal Company dated July 28, 1905.

Respondents claim record title to the northwest quarter of the northwest quarter of section 8, township 16, range 2 east, together with the minerals in, on or under the same, by and through conveyances beginning with a deed from P. F. Hawkins and others to L. V. B. Hawkins, bearing date of January 7, 1890, and through mesne conveyances to Mrs. M. L. Simpson by deed of L. V. B. Simpson, dated October 11, 1912; and record title to an undivided one-half interest in and to the northeast quarter of the northwest quarter of section 8, township 16, range 2 east, together with the minerals in, on or under said lands by and through conveyances beginning with a deed from P. F. Hawkins, and others, to L. V. B. Simpson, bearing date January 7, 1890, and through mesne conveyances to J. A. Simpson by deed of Alice C. Adkins and husband dated April 29, 1919, and to the other undivided one-half interest in said lands and minerals by and through the deed from P. F. Hawkins, and others, to L. V. B. Simpson, and through inheritance from L. V. B. Simpson, the father of J. A. Simpson.

The case was submitted to the court below on the original bill as amended, the answer of the respondents, the agreement of the parties and the testimony noted by the register. The lower court entered a decree denying the relief prayed for, and dismissed the bill...