Scott v. Laws

• Citation: 215 S.W. 81,185 Ky. 440
• Parties: SCOTT v. LAWS.
• Decision Date: 21 October 1919
• Court: Court of Appeals of Kentucky

215 S.W. 81

185 Ky. 440

SCOTT v. LAWS.

Court of Appeals of Kentucky.

October 21, 1919

Appeal from Circuit Court, Floyd County.

Action by L. Dow Scott against Harry L. Laws. From a judgment of dismissal, plaintiff appeals. Affirmed.

R. H Cooper and Stratton & Stephenson, all of Pikeville, D. H Hatcher, of Linwood, and Hobson & Hobson, of Frankfort, for appellant.

W. H May, of Prestonsburg, for appellee.

CLAY C.

On and prior to December 16, 1859, James H. Laws was the owner of a large tract of land adjoining the lands of Valentine Gearheart. On that day Gearheart executed and delivered to Laws a deed, the material parts of which are as follows:

"This indenture, made and entered into this 16th day of December, 1859, by and between Jas. H. Laws, of the city of Cincinnati and state of Ohio, of the first part, and Valentine Gearheart and Sallie Gearheart, his wife, of the county of Floyd and state of Kentucky, of the other part, witnesseth:

That the said Valentine Gearheart, for and in consideration of the sum of two hundred dollars in hand paid, the receipt whereof is hereby acknowledged, paid by the said Jas. H. Laws, hath bargained and sold to the * * * Jas. H. Laws the following described property, and doth hereby convey the same, to wit:

All of the mineral right and coal privileges and rights of way to and from said minerals and coal privileges, also the right to search for all undiscovered minerals and coals upon the lands hereinafter described, and being and lying in the county of Floyd and state of Kentucky and on the waters of Tolars creek, and upon the land where said Gearheart now lives, bounded as followeth: * * *

Now, I, said Valentine Gearheart hath sold and doth hereby convey the above-described privileges unto the said James H. Laws forever, free from me, my heirs and assigns, and will forever warrant and defend the same; and I, the said Sallie Gearheart, wife of said Valentine Gearheart, doth hereby convey and release all right in and to dower in the foregoing described privileges."

On March 1, 1860, Laws and wife conveyed all of his lands, including that deeded to him by Valentine Gearheart, to the Big Sandy Coal & Mining Company, which in turn mortgaged the property to Laws to secure the payment of certain bonds. Thereafter, Laws died, and the bonds descended to his son and only heir, Harry L. Laws. He brought suit in the federal court to enforce his mortgage lien and became the purchaser of all the property covered by the mortgage.

L. Dow Scott, who purchased from the heirs of Valentine Gearheart by deod dated July 29, 1905, brought this suit against Harry L. Laws to quiet his title to the minerals. Laws answered and asserted title by virtue of the conveyances and the proceedings above set out. To this answer plaintiff filed a reply, interposing among other defenses a plea of limitation. On final hearing plaintiff's petition was dismissed, and Laws was adjudged the owner of the mineral rights and coal privileges in the tract of land in controversy. Plaintiff appeals.

It is the contention of plaintiff that Valentine Gearheart conveyed to Harry L. Law's predecessor in title only a mining privilege, which was abandoned and lost by a failure for more than 40 years to develop the property. In this connection, great stress is placed upon the fact that Valentine Gearheart only sold and conveyed "the above-described privileges," and that Sallie Gearheart conveyed and released only her dower right in the "foregoing described privileges." It is therefore argued that the case is one falling within the rule laid down in 27 Cyc 683, in the following language:

"But where it is apparent that the intention of the parties is that the grantee shall have merely the right to enter and remove the minerals, rather than the absolute title to minerals in place, there is no severance of the estates in the surface and in the minerals, but the grant is a mere license, and the grantee acquires absolute title to only what is removed by him."

An examination of the authorities on the question will show that the rule that a mining privilege is sometimes regarded as a mere license, which may be lost by nonuser, is confined to cases where the privilege is limited and no exclusive right in the minerals themselves is granted. Shepherd v. McCalmont Oil Co., 38 Hun (N. Y.) 37; Grubb v. Grubb, 74 Pa. 25; Arnold v. Stevens, 24 Pick. (Mass.) 106, 35 Am.Dec. 305; Johnstown Iron Co. v. Cambria Iron Co., 32 Pa. 241, 72 Am.Dec. 783; Funk v. Haldeman, 53 Pa. 243; Gloninger v....