Snoddy v. Bolen

• Decision Date: 11 December 1893
• Citation: 24 S.W. 142
• Parties: SNODDY v. BOLEN et al.
• Court: Missouri Supreme Court

24 S.W. 142

SNODDY v. BOLEN et al.

Supreme Court of Missouri, First Division

December 11, 1893

Appeal from circuit court, Vernon county; D. P. Stratton, Judge.

Ejectment by Alma Snoddy against A. H. Bolen and others. Judgment for defendants. Plaintiff appeals. Reversed.

Wm Thompson and Harrison & Harrison, for appellant.

Robert T. Stickney and Thomas & Hackney, for respondents.

OPINION

BRACE J.

This is an action in ejectment to recover possession of "all the lead and zinc mineral and mines in and under the ground of a certain described portion of Allen street in Hough and Furnas’ addition to Webb City, Missouri." The answer is a general denial. The case was tried by the court without a jury; the defendants admitted possession; the finding and judgment was for the defendants; and the plaintiff appeals.

It was admitted that A. W. Hough and wife and Isaac Furnas are the common source of title. Hough and wife, by warranty deed of date April 18, 1877, conveyed an undivided half of the tract upon which said addition is located to Isaac Furnas. By deed and plat dated May 23, 1877, duly acknowledged and recorded June 16, 1877, Hough and wife and Furnas laid out and dedicated their addition to Webb City. The deed is as follows: "Know all men by these presents, that we, Augustus W. Hough and Martha W. Hough, his wife, and Isaac Furnas, owners of the land described in the annexed plat of Hough and Furnas’ addition to Webb City, do hereby release and convey to Jasper county in the state of Missouri, for public purposes, all the streets and alleys as designated on said plat, except the right to all valuable minerals in said land, which we hereby reserve, together with the right to mine the same. In witness whereof we have hereunto set our hands and seals this 23d day of May, A.D. 1877. A. W. Hough. [Seal.] Martha W. Hough. [Seal.] Isaac Furnas. [Seal.]" Afterwards, the said Hough and wife, by warranty deed dated June 16, 1877, acknowledged and recorded on the same day, conveyed to the said Isaac Furnas the undivided half of lots numbered 1 to 36, inclusive, "together with all valuable minerals in the streets and alleys of said addition to Webb City east of the middle of Webb street, as reserved on the recorded plat thereof." By deed bearing the same date, but acknowledged and recorded on the 18th of June, 1877, the said Isaac Furnas conveyed the same lots by the same numbers to E. O’Keefe, party of the second part, "to have and to hold the same, with the appurtenances, to the party of the second part, and to his successor or successors in this trust, and to him and his grantees and assigns, forever." "In trust, however," to secure the payment of a certain promissory note therein set out to "D. S. Thomas, cashier of the First National Bank of Carthage," party of the third part. Allen street is east of Webb street, and, of the lots conveyed, those numbered from 1 to 18, inclusive, front on the west side of Allen street, the east line of which forms the eastern boundary of the addition, and are all the lots in the addition fronting on that street, and those numbered from 19 to 36, inclusive, front on the east side of Webb street. There was a sale under this deed of trust, and a deed executed to the purchaser, and the defendants claim title under this deed of trust. On the 3d of June, 1889, the said Isaac Furnas et ux., by warranty deed of that date duly executed and acknowledged, and recorded on the 5th day of June, 1889, conveyed to Oliver D. Bell "all of the streets and alleys east of the middle of Webb street in Hough and Furnas’ addition to Webb City, Missouri, or the right of all valuable minerals therein, together with the right to mine the same, as reserved when said streets and alleys were dedicated, more particularly described as follows," etc. Afterwards, Bell and wife conveyed the same in like manner to plaintiff, and she claims title under this deed from Furnas, so that Furnas is in fact the common grantor under whom both claim, and from whom the plaintiff derains a perfect legal chain of title to the premises claimed, unless those premises were included in the deed of trust previously made by him to O’Keefe, under which the defendants claim. As the answer was simply a general denial, all we have to deal with here is the legal title, and, as the action is ejectment, the plaintiff cannot recover unless she hold the legal title. She has the legal title unless it passed to O’Keefe by the deed of trust. If it did so pass, she has not the legal title, and, so far as this inquiry is concerned, it makes no difference whether that title is in the defendants or outstanding, she cannot recover. The only question in the case is solved when it is satisfactorily determined what the deed of trust did actually convey.

It is important to inquire, first, what Furnas owned in respect of these premises when he executed the deed of trust. He certainly owned, in fee simple absolute, all that part of the tract east of the middle of Webb street to the east boundary of the addition, which included the whole of Allen street except so much thereof as was granted to the county for public purposes in the deed of dedication, just as he and Hough owned it before the execution of that deed. While in this instance a plat was filed with the deed, and as a part thereof, it was not purely a statutory dedication, (Gen. St 1865, c. 44,) but a dedication by deed, and its extent must be measured by the terms of the instrument. While the grant to the public was not of a mere easement or right of way over the soil of the streets and alleys as laid down on the plat, neither was it a grant of the whole corpus of the material defined by and contained between the lines of those thoroughfares; but, within those lines, all was granted usque ad inferos except the "valuable mineral" therein contained. That was expressly reserved to the grantor, "with the right to mine the same." There can be no question that the grantees had the right to thus divide their property, and to dispose of one part and retain the other. "A man entitled to land may grant leases, may grant exclusive herbage, as right of depasturing, a right of way, or a right of game. He may grant the mines underneath, or the right to get the minerals, and other rights in and over the property, or enjoyment of it." "So, the grantees of mines may regrant, and in all these cases the grantee may maintain action in respect of the rights granted." 3 Washb. Real Prop. (5th Ed.) p. 361. As was said in Wardell v. Watson, 93 Mo. 107, 111, 5 S.W. 605: "Coal and minerals in place are land, and may be conveyed as such, and, when thus conveyed, constitute a separate and distinct inheritance. Caldwell v. Fulton, 31 Pa. St. 475. *** A reservation of minerals and of mining rights is construed as an actual grant thereof. Marvin v. Mining Co., 55 N.Y. 538." The dedicators, after the grant, retained the same right and title to all of the "valuable mineral" beneath Allen and the other streets and alleys of the addition that they held before the grant, and Furnas held by grant all their title to that mineral at the time the deed of trust was executed. Did it pass to O’Keefe by that deed? The land conveyed by that deed is described by defined boundaries, the metes and bounds being the lines of each lot as they appear on the plat. There are no reservations in the deed; within those boundaries everything was conveyed, to the center of the earth; and, more than this, every appurtenance thereto was conveyed; besides this, nothing was in terms conveyed. The property in controversy is without those boundaries, and, unless appurtenant thereto, were not conveyed by the terms of the deed. "Appurtenance" is defined to be "a thing used with, and related to or dependent upon, another thing more worthy, and agreeing in its nature and quality with the thing whereunto it is appendant or appurtenant. The term, as used in conveyances, passes nothing but the land and such things as belong thereto and are part of the realty. Therefore, when a...