Wallace v. Elm Grove Coal Co.
| Decision Date | 05 December 1905 |
| Citation | 52 S.E. 485,58 W.Va. 449 |
| Parties | WALLACE v. ELM GROVE COAL CO. |
| Court | West Virginia Supreme Court |
Submitted September 14, 1905.
Syllabus by the Court.
A conveyance of the underlying coal, with the privilege of its removal from under the land of the grantor, effects a severance of the right to the surface from the right to the underlying coal, and makes them distinct corporeal hereditaments. The presumption that the party having the possession of the surface has the possession of the subsoil also does not exist when these rights are severed.
The owner of the surface, when the underlying coal has been so conveyed, can acquire no title to the coal by his exclusive and continued possession of the surface; nor does the owner of the coal lose his right or his possession by any length of nonusage. To lose his right he must be disseised, and there can be no disseisin by an act which does not actually take the coal out of his possession.
A bill in equity to remove a cloud over title to land cannot be maintained, unless the plaintiff have both good title and actual possession.
Appeal from Circuit Court, Ohio County.
Bill by James Y. Wallace against the Elm Grove Coal Company. Decree for defendant, and plaintiff appeals. Affirmed.
Rehearing denied January 9, 1906.
Hubbard & Hubbard, for appellant.
Handlan & Wiedenbusch, for appellee.
John Blayney and John McCoy were the owners of two contiguous tracts of land making together 165 acres. On the 17th day of June, 1859, they conveyed to Joseph Connelly, Joseph Ford Otho W. Heiskell, and John Handlan, all the coal underlying the two tracts of land. By regular conveyances the title to both tracts became vested in John Blayney, who conveyed the same to Samuel Roney on October 4, 1870; Samuel Roney and wife conveyed the same by deed of trust to I. F. Jones trustee, who, by deed dated August 22, 1877, conveyed the same 165 acres to James Y. Wallace. It seems that the conveyances made after the coal deeds of June 17, 1859 purported to convey the whole property without reference to the said conveyances of the coal underlying the said tracts of land. By deed dated the 6th day of February, 1902 the heirs at law of the said Connelly, Ford, Heiskell, and Handlan, the grantees of the coal in the deeds of June 17 1859, conveyed the said coal and mining privileges to the Elm Grove Coal Company, a corporation. On the 1st Monday in August, 1903, the said James Y. Wallace filed his bill in equity in the circuit court of Ohio county against the Elm Grove Coal Company, alleging the various deeds of conveyance of said property, and also the said deeds conveying the underlying coal to the said Connelly and others; that the said coal interest had become forfeited to the state by reason of nonentry on the land books for purposes of taxation, that the title of the grantees to said coal had become vested in the state by reason of such forfeiture, and that up to the year 1902 no redemption of said property, nor was any release or other disposition of said property or of any part thereof, made by said state of West Virginia; that the conveyance made by John McCoy to John Blayney in the year 1864, and by John Blayney and wife to Samuel Roney in 1870, created in the said Roney a title to said coal, which was adverse to that of the said Connelly, Ford, Heiskell, and Handlan, and that after the said year, 1870, no payment, by the said Roney or his successors in title, of any taxes, assessed upon said coal or which should have been assessed thereon, could inure to the benefit of said Connelly, Ford, Heiskell, and Handlan as privies in title to the said Samuel Roney; that the conveyance of said property by Roney to Jones, trustee, in 1870, and the conveyance thereof to plaintiff by said Jones, trustee, in the year 1877, were also conveyances adverse to the said Connelly and his covendees; that no payment of taxes by the said Jones or by the plaintiff could inure to the benefit of the said Connelly and his co-vendees as privies in title to the said Jones, or to the plaintiff; that the plaintiff had actual, adverse, exclusive, and constructive possession of said property under claim of title from 1877 to the present time, and had paid the said taxes thereon from year to year for each year after the year 1877, and that those under whom the plaintiff claimed had like possession and claim and had paid taxes for more than 20 years next previous to the conveyance to plaintiff; that since the 9th of April, 1873, no person excepting the plaintiff had had actual continuous possession of the said coal property under color or claim of title for 10 years, and no person except plaintiff and said Jones, under whom plaintiff claimed, had paid the state taxes on said property or any part thereof for any five years since the last-mentioned date; and alleging that by operation of law and in pursuance of the Constitution of the state the title to said coal so forfeited to the state and not having been redeemed, released, or otherwise disposed of had been transferred to and vested in the plaintiff; that the defendant at the time the said conveyance was made to it by the heirs at law of the decedent vendees of the coal, on the 6th day of February, 1902, had full and actual, as well as constructive, knowledge, that the title to the said coal privileges vested in its grantors had become forfeited, and had become vested in plaintiff; that the deed constitutes a cloud upon plaintiff's title to his said property, that he ought to have a clear and undisputed title thereto, that defendants took by its said deed no estate or interest whatever in any of the coal underlying plaintiff's farm; that the said deed so far as it undertakes as purported to convey any interest in said coal ought to be set aside and annulled; that plaintiff had no adequate remedy at law in the premises; that the defendant be required to answer the bill, and that upon the final hearing of the cause the said deed to the defendant might be declared to be absolutely void and of no effect, so far as it undertakes to convey any interest in the coal underlying plaintiff's farm, and for general relief.
Defendant filed its demurrer in writing to plaintiff's bill, in which demurrer the plaintiff joined and on the 21st day of April, 1905, the following order was entered: ...
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