Richards v. Potter

• Decision Date: 02 February 1910
• Citation: 124 S.W. 850
• Parties: RICHARDS v. POTTER.
• Court: Kentucky Court of Appeals

124 S.W. 850

RICHARDS v. POTTER.

Court of Appeals of Kentucky.

February 2, 1910

Appeal from Circuit Court, Letcher County.

"Not to be officially reported."

Action by Isaac Potter, Sr., against R. K. Richards. Judgment for plaintiff, and defendant appeals. Affirmed.

S. B Dishman, Dishman & Dishman, and Geo. I. Neal, for appellant.

Salyer & Baker, for appellee.

NUNN C.J.

Appellee instituted this action under section 11, Ky. St (Russell's St. § 14), for the purpose of removing an alleged cloud from his title to a certain survey of land. He alleged that appellant was claiming to be the owner of the coal and other minerals under the land, and that his claim was without right thereto. Appellant contented himself in his first answer by controverting the affirmative allegations of the petition and alleging that he was the owner of the coal and other minerals under the land by purchase and conveyance. He afterwards filed an amended answer, in which he alleged that, although his conveyance was of later date than appellee's, it was executed in compliance with a title bond which their common vendor, James Yontz, had executed to one Horsely in the year 1887, which was prior to the conveyance made by Yontz to appellee. He further alleged that appellee, when he purchased the land in controversy, knew of the existence of this title bond executed by Yontz to Horsely. Appellee replied to this answer and denied specifically all the affirmative matter in it.

Appellee received his conveyance from James Yontz in the month of May 1889, and immediately took possession of the land and held it from that date to the trial of the action. Appellee also alleged that the conveyance from James Yontz to appellant's immediate vendor, Bright, for the coal and other minerals under the land, was executed in June, 1889, a month after his conveyance, and at a time when appellee was in adverse possession of the land, claiming it as his own, and therefore the deeds from Yontz to Bright and from Bright to appellant were champertous and void. The lower court adjudged these deeds champertous, and that appellee bad a good title by reason of his continuous, adverse possession, and that the claim of appellant to the coal and other minerals under the land was not valid. The conveyance from Yontz to appellee did not limit the estate conveyed; there was no reservation or exception of any kind contained in it. It was such a deed as would, apparently, convey the minerals as well as the surface, and by it he took both, unless he had at that time information or knowledge of the equitable estate in Horsely or his assignee, in the coal and other minerals. As we understand the case, the questions of champerty and adverse possession are not involved. There is no pretense that appellee undertook to mine any of the minerals, or that he committed any specially overt act indicating that he owned the minerals.

In the case of Kincaid v. McGowan, 88 Ky. 91, 4 S.W. 802, 9 Ky. Law Rep. 987, 13 L. R. A. 289, this court said: "An estate in fee in land carries with it all metals and minerals thereunder, unless the metals and minerals are excepted in the conveyance, or 'have before been severed in ownership, and the right thereto vested in some other person.' The surface and the metals and minerals may be distinct property from each...