Thomas v. Young

• Decision Date: 17 April 1923
• Docket Number: No. 4736.,4736.
• Citation: 93 W.Va. 555
• Parties: E. J. Thomas, Trustee v. U. B. Young.
• Court: West Virginia Supreme Court

93 W.Va. 555

E. J. Thomas, Trustee

v.U. B. Young.

No. 4736

Supreme Court of Appeals of West Virginia.

Submitted March 27, 1923.

Decided April 17, 1923.

1. Mines and Minerals Requisites of Acquiring Title to Coal Underlying Land Where Goal Separated from Residue of Land by Conveyance, Stated.

To acquire title to coal underlying a tract of land by adverse possession, where the coal has been separated from the residue of the land by conveyance, the claimant must show that his mining of the coal has been actual, open, notorious, continuous, exclusive and hostile, under color of title. (p. 560).

2. Deeds Reference in Deed Containing Only General Description of Land to Another Deed Containing Description by Metes and Hounds has Same Effect as if Particular Description Incorporated.

Where reference is made in a deed, containing only a general description of land, to another deed, which contains a description by metes and bounds, for the purpose of describing the land intended to be conveyed, it has the same effect as if such particular description in the deed referred to were incorporated in the deed in which the reference is made. (p. 562).

3. Mines and Minerals Descriptions and Exceptions in Prior Deed, Referred to in Subsequent Deed to Describe Land Conveyed. Deemed Incorporated in Subsequent Deed.

And where reference is made in a deed containing only a general description of the land, to a prior deed, which contains a description by metes and bounds, for the purpose of describing the land intended to be conveyed, and in such prior deed following the description there is a reservation or exception of the coal and iron minerals underlying the land described both the description by metes and bounds and the reservation or exception are deemed to be incorporated in the deed in which the reference is made, and may be looked to to determine the property thereby conveyed. (p. 562).

4. Same Grantee's Color of Title to Coal Excepted in Prior Deed, to Which Reference for Description of Land and Exceptions Made. Determined in Ouster by Right of Recovery Under Warranty.

The grantee in the deed containing such reference can not be said to be vested with color of title to the coal and iron minerals so excepted or reserved. Under such a deed a fair test of the grantee's color of title to the coal, where the deed contains a covenant of general warranty, is determined by his right of recovery upon the warranty, in case of ouster, (p. 564).

5. Deeds Mines and Minerals "Survey" Cannot Operate as Conveyance, or Exception, or Reservation of Land; Deed Conveying Property by Metes and Bounds as Part of Survey Made for Grantor out of Tract of Patentee Held not to Incorporate Reservation of. Minerals in Deed from Patentee to Grantor.

A "survey" is not a deed, nor can it operate as a conveyance or exception or reservation of land; and a deed, containing a full description of land conveyed by metes and bounds and geographical location, and which also recites that the property conveyed is a part of a "survey" of an 84% acre tract made for the grantor out of 47000 acres patented to one Bruen, a former owner of the land conveyed, can not be said to incorporate in it a reservation of minerals made in the deed of Bruen to the grantor. (p. 564).

6. Mixes and Minerals Deed Containing Reference to Prior Survey for Description, Out not Reserving or Excepting Minerals and Purporting to Convey Fee, Vests Color of Title to Minerals.

Such a deed containing a reference to a prior survey for description, but containing no reservation or exception of the minerals under the land, purporting to convey the fee in the land, vests color of title to the minerals within and under the boundary conveyed. (p. 566).

7. Same Operation of Coal Mine for 15 years Constitutes Adverse Possession. Vesting Operator With Fee-Simple Title to Coal Under Tract Embraced in Color of Title.

Where for fifteen years, one mines the coal under a tract of land, under color of title, drives two entries into it, 500 or 600 feet in length, with work rooms off the entries, employs five or six miners with considerable regularity, builds no tipples or coal chutes but piles the coal mined in large quantities at or near the outside of the drift mouth, sells the coal to the public generally, openly and exclusively operates the mine during the seasons when he can find a market for the coal and stands ready at all reasonable times to furnish coal from the mine when there is a market thereror, his mining operations are sufficient to constitute adverse possession which vests in him the fee simple title to the coal under the tract embraced in his color of title. (p. 566).

Error to Circuit Court, Kanawha County.

Action by E. J. Thomas, trustee, against IT. B. Young. There was a judgment for defendant, and plaintiff brings error.

Reversed and, remanded.

J. B. Jones and P. II. Murphy, for plaintiff' in error. Elmer L. Stone, G. L. Hartley and A. M. Belcher, for defendant in error.

Meredith, Judge:

Plaintiff seeks to reverse the judgment of the circuit court of Kanawha County in an action of ejectment which he instituted against II. B. Young to recover the coal underlying two tracts of land in Poca District. These tracts, one of 21 acres and the other of 11 acres, are contiguous and are part of a tract of 84% acres, the surface of which was conveyed by A. M. Bruen to Robert Young in 1856. In this deed the grantor, Bruen, excepted all of the coal and iron minerals, except such as might be required for the grantee's household and domestic purposes, and the plaintiff claims as a subsequent grantee of the mineral estate created by that reservation. He introduced in evidence several title papers in deraignment of his title to the coal, but since the parties have by stipulation agreed that their titles are derived from a common source, to-wit: A. M. Bruen, we need not review these instruments. Defendant's claim is, that because certain deeds in his chain of title either fail to make mention of the Bruen mineral reservation, or if mentioning it do so imperfectly, he, the defendant, by virtue of his extensive mining operations conducted on the premises under color of title, is vested with a fee title absolute in both the surface and the minerals.

Under the doctrine of White Flame Goal Co. v. Burgess, 86 W. Va. 16, 102 S. E. 690, a closely related case, these contentions give rise to the two issues which must be considered:

First. Has the defendant color of title to the coal underlying the two tracts?

Second. If he has color of title, has he had open, notorious, adverse, exclusive and continuous possesion of the coal for ten years prior to the institution of the suit by plaintiff?

We find that the circumstances are not identical with respect to the two tracts. It is therefore necessary to discuss them separately.

The Twenty-One Acre Tract.

As 'before stated, counsel have stipulated that plaintiff's title to the coal under both tracts is deraigned from A. M. Bruen. The title papers introduced in evidence indicate the correctness of that stipulation. Defendant's claim of color of title to the coal is founded on the following series of conveyances:

(a). By deed dated April 28, 1856, Alexander M. Bruen conveyed a tract of land on the waters of Two Mile and Tupper's Creek in Kanawha County, containing 84% acres, to Robert Young. The deed contains a description of the land by metes and bounds, which description concludes as follows: "excepting and reserving all the coal and iron minerals found in and upon said lands to the said Alexander M. Bruen, his heirs and assigns, with the right-of-way of ingress and egress necessary to the full enjoyment and use of this reservation and granting to the said Robert Young license to use such quantities of the said minerals as may be required for his household and domestic purposes."

(b). On May 19, 1876, Robert Young and wife conveyed to William Young all of "a certain boundary lying in Union District of said (Kanawha) County on a branch of Two-Mile Creek, west of the Great Kanawha River, the same being the residue of 84% acres A. M. Bruen survey to said Robert Young, which residue contains 71 acres, more or less." There follows a detailed description of the tract conveyed, and a special warranty of title, but no reference is made to a reservation or exception of minerals.

(c). William Young, on July 14, 1879, conveyed 34% acres, seemingly a part of the 84% acres, and so treated by counsel in this case, to John R. Jenkins. Following the last call in the description of the land conveyed, the deed concludes: "Containing 34% acres, with covenant of general warranty, reserving, however, from the operation of this deed all the minerals that was reserved in the deed from A. M. Bruen to the party of the first part."

It seems clear, and counsel agree in their briefs, that this 34% acres is a part of the 84% acre tract conveyed by A. M. Bruen to Robert Young, not to William Young, the "party of the first part" in the deed just quoted.

(d). John R. Jenkins died intestate about 1902, and by a partition decree his estate was divided among his heirs.

The decree was recorded March 21, 1903, and by it both the 34% acre tract and the 11 acre tract were assigned to Lena M. Franklin.

(e). By deed dated March 30, 1903, Lena M. Franklin conveyed the same two tracts to II. B. Young, the present defendant. The description of the 34% acres in that deed is as follows: "and the other lot said to contain 34% acres conveyed to John R. Jenkins by the said William Young and wife by deed dated July 14th, 1879, and recorded in said clerk's office in Deed Book No. 34, page 366." There is a general warranty of title, and no reservations or exceptions appear.

Defendant says these deeds afforded him color of title. Courts sometimes find it difficult to arrive at an appropriate definition of the phrase "color of title," but for present purposes we think almost any of those announced would be sufficient. In ...