Vance v. Guy

• Decision Date: 13 October 1943
• Docket Number: 237.
• Citation: 27 S.E.2d 117,223 N.C. 409
• Parties: VANCE v. GUY et al.
• Court: North Carolina Supreme Court

27 S.E.2d 117

223 N.C. 409

VANCE v. GUY et al.

No. 237.

Supreme Court of North Carolina

October 13, 1943

Plaintiff instituted this action to establish his title to the mineral rights in a tract of land containing 375 acres, and to recover for mica alleged to have been mined and removed therefrom by the defendants. The mineral rights in 68 acres of the tract were disclaimed. The plaintiff's title to the surface rights in the land described was not controverted, but defendants alleged that the mineral rights have been by previous conveyances segregated, and that the defendants were the owners of the minerals and mineral rights in said land as evidenced by chain of conveyances from the original title owner. They denied trespassing on any property of plaintiff.

Plaintiff sought to establish his title to the mineral rights claimed by showing adverse possession under color of title for more than seven years prior to the institution of the action. In support of his contention plaintiff testified in substance that he entered into possession of the land under deed dated March 5, 1925, which purported to convey the land to him by definite boundaries, in fee simple, without reservation. He offered evidence tending to show that at the time he acquired the land mining was being done on the land, and that these operations were continued by him, and by those who operated under his lease and who paid him royalties, up to the present time; that he continuously operated the mine known as the Branch mine, and that no other person other than his employees and lessees had mined on the land, except on the 68-acre tract. He further testified that though he moved his residence off the land in 1931 he had agents and people living on the place looking after, leasing and working the mines, and the work was continued by his employees and representatives. It was testified there was another mine on the land known as the Pittman mine operated by plaintiff's lessee Buchanan, and after the latter's death plaintiff's employees looked after the work in the mine and collected royalties continuing until 1938 and 1939. Plaintiff testified that from another mine called Black mine some mica and feldspar were taken, after plaintiff acquired the property, and for which he received royalties. "I know somebody worked every year in the Black and Pittman mines." The amount of royalties received was sufficient to pay interest on plaintiff's $6,000 debt on the land. Plaintiff also testified that at the Branch mine there was an open cut 40 to 75 feet wide, 600 to 800 feet long, and from 3 to 20 feet deep.

There was other evidence tending to show that the workings on plaintiff's land were "small operations"--carried on with pickshovel and wheelbarrow that the so-called mines were small openings, not more than a quarter to half an acre in extent, including the surrounding dumps. A shaft not completed was being sunk at the time of the suit.

There was evidence tending to show that defendants owning adjoining land had excavated under plaintiff's land and removed a large amount of mica therefrom. It was alleged that the value of the mica wrongfully removed amounted to $84,000.

Defendants offered deeds showing conveyance to them of the minerals and mineral rights in and under the land, and connected chain of title from the original grant from the state in 1796.

The court charged the jury, among other things, that from the deeds and conveyances offered the defendants had the superior title to the mineral rights involved, and that the plaintiff holding the inferior or junior title, under the deed of 1925 must show adverse possession of the mineral rights under the colorable title of that deed. To the court's construction that defendants' paper title was superior plaintiff excepted.

The court defined adverse possession under color of title and charged in substance that if the plaintiff had shown by the greater weight of the evidence adverse possession of a portion of the land described in the conveyance under which he entered, his possession would be extended by construction of law to the outer boundaries of his deed, and, if so continued, openly, notoriously and adversely, as defined, for seven years, would ripen his imperfect or colorable title into a good one as to all the land described in his deed not actually occupied by the defendants.

Other instructions to the jury to which exceptions were noted were as follows:

"If the possession taken under the junior title is for a portion of the land so very minute and small that the true owner, even in the exercise of ordinary vigilance might remain ignorant that it included his land, or might mistake the character of the possession or the intention of the occupant, it might fairly be doubted that the deed should be held to extend beyond the actual boundaries. ***

"So, gentlemen of the jury, if you had a deed for a hundred acres of land capable of being used as pasture, and you took your cow out and stake her off on a place in that land, just one little area where she could graze, you could not ripen title to one hundred acres and claim that you had used it to the extent of its ability to be used. On the other hand, if you put 75 or 100 head of cattle on that 100 acre tract so that they could roam all over it, even if for some reason they never went to one particular portion of the land, you could still ripen title to the whole 100 acres ***

"As I say, the defendants don't have to prove he had possession, but he (plaintiff) must prove affirmatively by the greater weight of the evidence that he had such possession as would indicate to the world an intention to claim the whole 375 acres for a period of at least seven years. If he has not done that, he cannot prevail.

"The defendants in reply say there has not been any such operations as would put the defendants or anybody else on notice that the plaintiff was claiming the mineral rights to this 375 acres of land. The defendants say when you consider the size of the opening of the dump, from one-fourth to one-half acre of land, and that to use or hold dominion over the mineral rights of an acre of land in 375 acres is not sufficient notice in which to put them or anybody else on notice that he was claiming the mineral rights over the whole 375 acres."

Just before the conclusion of the charge counsel for plaintiff addressed the court as follows: "As I understand, if the plaintiff or his representative mind any portion of this land sufficient to show his claim of ownership in that there being no possession by the other side, such acts will extend to his outer boundaries, under the Gilchrist case." Thereupon the court stated: "I gave what I conceived to be the law along that line. That would be dependent upon the size of that operation, even though it were just in one part."

The following issue was submitted to the jury: "Is the plaintiff the owner of and entitled to the possession of the minerals...