Thomason v. Mullinax

• Decision Date: 07 August 1981
• Parties: Clancy THOMASON, et al. v. Sam MULLINAX, et al. 79-171.
• Court: Alabama Supreme Court

Page 883

403 So.2d 883

Clancy THOMASON, et al. v. Sam MULLINAX, et al.

79-171.

Supreme Court of Alabama.

Aug. 7, 1981.

Murray W. Beasley, Tuscumbia, for appellants.

J. William Thomason of Thomason & Russell, Bessemer, and Nolan & Newman, Fayette, for appellees.

N. Lee Cooper and R. Michael Leonard of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for amici curiae, Alabama Mining Institute, and Alabama Surface Mining Reclamation Council.

ALMON, Justice.

This is an appeal from a decree quieting in the heirs of Sam Mullinax title to all the minerals underlying certain land located in Fayette County, Alabama. We reverse.

In 1934, Sam Mullinax purchased from M.B. Earnest land located in Fayette County. The deed from Earnest to Mullinax contained a reservation excepting the minerals and mining rights. Even though he only owned the surface, Mullinax assessed the entire property until 1957 ¹ when he conveyed the property to a third party, reserving the minerals and mining rights to himself. During the period between 1934 and 1957, Mullinax conducted various coal mining operations on this property. These operations conducted with wheelbarrows and wagons including removing coal from and underground mine and exposed outcroppings as well as "pop shotting" to remove the overburden from coal seams lying near the surface. The coal removed was used for domestic purposes in Mullinax's blacksmith shop and home, although at one time Mullinax sold a portion of the mined coal to the Fayette County Board of Education. In 1939, Mullinax leased oil and gas rights to Superior Oil Company. Apparently, that company drilled one and possibly more wells, but subsequently abandoned the well or wells when they proved to be dry.

Mullinax's heirs brought suit to quiet in themselves title to all the minerals underlying approximately eighty acres of the land he owned in 1957. The trial judge, sitting without a jury, granted this requested relief as to sixty acres after he determined that Mullinax adversely possessed the minerals under that acreage because "the mining operations * * * were conducted openly and continuously, as seasonally necessary and as the nature of the business and operations and the customs of the country permitted and required," and that "(e)ntry on the land during any of the period would have revealed to a reasonable observer facts which should reasonably have made such observer believe that mining operations were being conducted."

The appellants, heirs of W.M. Ennis and others who were Earnest's and Mullinax's predecessors in title, raise several issues on appeal. The pivotal issue is: When title to minerals has been severed from title to the overlying surface, can those minerals be adversely possessed, and, if title can be so acquired, how far does the adverse possession extend?

The rules applicable to adverse possession of minerals when the title to the mineral estate has been severed from the surface estate were summarized by this Court in Sanford v. Alabama Power Co., 256 Ala. 280, 288, 54 So.2d 562, 569 (1951):

After severance of the minerals, in situ, from the surface the possession of the latter is not possession of the former. The effect of the severance is to create two closes, adjoining but separate. The mineral, after severance, is a corporeal hereditament, and mere nonuser will not affect the owner's title; and to lose his right by adverse possession, the owner must be disseised. Hooper et al. v. Bankhead & Bankhead, 171 Ala. 626, 54 So. 549, and cases cited. To acquire by adverse possession the title to the mineral interests so severed, there must be an actual taking or use under claim of right of the minerals from the land for the period necessary to affect (sic) the bar. Under the authorities, it is essential, to effect adverse possession of the minerals, after severance in title from the surface, that the adverse claimant do some act or acts evincing a permanency of occupation and use, as distinguished from acts merely occasional, desultory or temporary acts suitable to the enjoyment and appropriation of the minerals so claimed, and hostile to the rights of the owner. Birmingham Fuel Co. v. Boshell, 190 Ala. 597, 67 So. 403, and cases cited; Hooper v. Bankhead & Bankhead, supra.

In the present case, the trial judge, hearing the evidence ore tenus, determined that Mullinax satisfied these requisites and, therefore, had adversely possessed the minerals. This determination of fact is supported by the evidence, is neither palpably erroneous nor manifestly unjust, and is accordingly due to be affirmed. Smith v. McNaughton, 378 So.2d 703 (Ala.1979); Gertz v. Allen, 376 So.2d 695 (Ala.1979).

The trial judge's determination as to the extent of Mullinax's adverse possession and his decree quieting title to sixty acres is, however, erroneous and due to be reversed.

The rationale of Sanford v. Alabama Power Co., supra, is applicable to the issues before this Court. That case involved a suit to quiet title to the minerals underlying the surface of the NE 1/4 and NW 1/4 of the SE 1/4 of Section 34, Township 15 South, Range 17 West, in Walker County, Alabama. In 1874, all of this property was owned in fee by H. A. Key. In January of that year, Key conveyed by deed the surface rights to J. M. Garner. Ten years later Key conveyed the rights to the minerals underlying Garner's property to Musgrove Brothers. In 1941 Alabama Power acquired the mineral interests via a deed from Musgrove Brothers. Sanford acquired his interest by way of inheritance from Garner. Alabama Power sued to quiet title to the minerals underlying the described property. Before trial, the complaint was amended to omit the NW 1/4 of the NE 1/4 of Section 34, upon which Sanford had conducted a coal mining operation. Sanford advanced two arguments pertinent here: first, that he had acquired title to the minerals underlying the entire tract of land in question by virtue of the mining operations conducted on the NW 1/4 of the NE 1/4 of Section 34; and, second, because he had color of title to all of the minerals underlying the land in question, his actual possession of the minerals in the quarter section where he was conducting mining operations was sufficient to constitute possession of all the minerals. After deciding that the facts did not...