This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
53. Griffin v. Lee, 90 Ga. 224, 15 S. E. 810; Den d. Carson v. Mills, 18 N. C. 546, 30 Am. Dec. 143.
54. Louisville etc. R. Co. v. Gulf of Mexico Land etc. Co., 82 Miss. 188, 33 So. 845, 100 Am. St. Rep. 627; Jackson v. Woodruff, 1 Cow. (N. Y.) 276; Simpson v. Downing, 23 Wend. (N. Y.) 316; Thompson v. Burhans, 61 N. Y. 52; Paine v. Hutchins, 49 Vt. 314; Pepper v. O'dowd, 39 Wis. 538 (statute). See Zirngibl v. Calumet & C. Canal & Dock Co., 157 111. 430, 42 N. E; 431; Turner v. Stephenson, 72 Mich. 409, 2 L. R. A. 277, 40 N. W. 735; Murphy v. Doyle, 37 Minn. 113, 33 N. W. 220; Chandler v. Spear, 22 Vt. 388.
55. Marietta Fertilizer Co. v. Blair, 173 Ala. 524, 56 So. 131; Hicks v. Coleman, 25 Cal. 122, 85 Am. Dec. 103; Furgerson v. Bagley, 95 Ga. 516, 20 S. E. 241; Taliaferro v. Butler, 77 Tex. 578, 14 S. W. 191. See 6 Columbia Law Rev. 583, for a criticism of the New York rule. See also Doe d. Lenoir v. South, 32 N. Car. 237.
When a person having color of title to a tract of land conveys a part of such tract to another, who takes possession of that part and no more, such possession of a part by the grantee is not equivalent to possession by the grantor, for the purpose of giving the latter constructive possession of the balance.50 But if the person having color of title to a tract makes a lease of part of the tract, and the lessee takes possession of that part, the possession of the lessee in behalf of the lessor will, by the weight of authority, be regarded as extending to the whole tract.37
- Minerals in the land. The question lias quite frequently arisen, under what circumstances does the statute of limitations run as regards rights in minerals beneath the surface of land. There exists in this connection a primary distinction between the case in which the ownership of the surface of the land is not already separated from that of the minerals, and that in which it is so separated.
If one person owns both the surface of the land and the minerals thereunder, and another takes wrongful possession of the surface, his actual possession of the surface is ordinarily extended by construction to the minerals beneath the surface,58 and if the statute runs against the rightful owner as regards the surface it also runs as regards the minerals.59 It has been decided that the running of the statute in such case as regards the minerals is not affected by the fact that the wrongful possessor undertakes to convey the minerals alone to another, who does not take possession, the continued possession of the surface by the grantor in such case being regarded as extending to the minerals in behalf of the grantee.60 And conversely it was held in the same state that if one who had taken wrongful possession of the land conveyed the surface, retaining the minerals, the subsequent possession of the surface by the grantee extended to the minerals in behalf of the grantor.60a But the wrongful possession of the surface does not extend by construction to the minerals, if the possession was originally taken under color of a conveyance which expressly excepted the minerals.61 And it has been decided that, when a company was mining part of the minerals contained in a tract belonging to it, but not that part of the minerals beneath the portion of the surface of which defendant had wrongful possession, defendant, by the lapse of the statutory period, although he acquired title to the portion of the surface of which he had possession, did not acquire title to the minerals beneath such portion of the surface, he having been fully informed as to the operations
56. Trotter v. Cassaday, 3 A. K. Marsh, 365, 13 Am. Dec. 183; Cochran v. Linville Imp. Co., 127 N. Car. 386, 37 S. E. 496; Jones v. Chiles, 2 Dana (Ky.) 25; Willamette Real Estate Co. v. Hen-drix, 28 Ore. 485, 42 Pac. 514, 52 Am. St. Rep. 800; Chandler Rushing, 38 Tex. 591; Sharpe v. Shenandoah Furnace Co., 100 Va. 27, 40 S. E. 103.
57. Zundel v. Baldwin, 114 Ala. 328, 21 So. 420; Wheeler v. Foote, 80 Ark. 435, 97 S. W. 447 (distinguished in Johnson & Burr v. Elder, 92 Ark. 30, 1-1 S. W.
1066); Knorr v. Raymond, 73 Ga. 749; Williams v. Ballance, 23 111 193, 74 Am. Dec. 187; Murphy v. Comm. 187 Mass, 361, 73 N.e 524 (gemote); Heinemann v. Bennett, 144 Mo. 113. 45 S. W. L092; Ruf fin v. Overby, 105 N. C 78, 11 S. E. 251; Cochran v. Linville Imp. Co.. 127 X. C 386, 37 N. E. 196; Bowles v. Brice, 66 Tex. 724 S. W. 729. Contra, Maasengill v. Bayles, 11 Humph. (Tenn.) 113; Texas Land Co. v. Williams. 51 Tex 61; Walker v. Knox, Tex Civ. Apr , 191 S. w. 730.
58. See Armstrong v. Caldwell, 53 N. Y. 284; editorial note 10 Columbia Law Rev. 70.
59. Baker v. Clark, 128 Cal. 181, 60 Pac. 677; Davis v. Shepherd, 31 Colo. 141, 72 Pac. 57; Bradley v. Johnson. 11 Idaho. 689, 83 Pac. 927.
60. Black Warrior Coal Co. v. West, 170 Ala. 346, 54 So. 200; Mcburney v. Glenmary Coal & Coke Co., 121 Tenn. 275, 118 S. W. 220. The latter case was, however, overruled by Northcut v. Church, 135 Tenn. 541, 188 S. W. 220.
60a. Moore v. Empire Land Co., Ala., 61 So. 940. See editorial notes 24 Harv. Law Rev. 582, 27 Id. 173.
61. Louisville v. Nashville R. Co., 136 Ala. 156. 96 Am. St. Rep. 17, 33 So. 896. See editorial note 10 Columbia Law Rev. 70, and cases cited, post, note 64.
Of the company, and that, hy such operations, the company had in effect made a severance of the minerals from the surface, analogous to the severance or separation of ownership referred to in the next paragraph.62 This theory of severance by the working of the mineral deposits is somewhat obscure, and the same result might, it is submitted, have been attained on the theory, above referred to, that actual possession is not extended by construction as against the rightful owner in possession of part of his land.
If the ownership of the minerals becomes separated from that of the surface, the subsequent63 possession of the surface owner is not regarded as extending to the minerals, so as to give him title thereto under the statute, even though the owner of the minerals makes no attempt to remove the minerals.64 The two properties are entirely distinct and there is no more reason that the owner of one property should be regarded as in wrongful possession of the other than if the plane by which they are separated was vertical instead of horizontal. And in order that the surface owner may be regarded as in possession of the minerals, so that the statute may run in his favor with reference thereto, he must conduct mining operations with such
62. Delaware & Hudson Canal Co. v. Hughes, 183 Pa. 66, 38 L. R. A. 826, 38 Atl. 568, 63 Am. St. Rep. 743.
63. If the separation of ownership does not occur until after the taking of wrongful possession of the surface, it does not, it has been decided, prevent the running of the statute as to the minerals as well as the surface. Finnegan v. Stineman, 5 Pa. Super. Ct. 124.
64. Birmingham Fuel Co. v. Boshell, 190 Ala. 597, 67 So. 403; Crandall v. Goss. 30 Idaho, 661,
167 Pac. 1025; Crowe Coal & Mining Co. v. Atkinson, 85 Kan.357. Ann. Cas. 1912D, 1196, 116 Pac, 499; Marvin v. Brewster [ron Mining Co., 55 N. V. 538; Gill v. Fletcher, 74 Ohio st. 296, 113 Am. St. 295, 113 Am. St. Rep. 962, 78 N. B. 133; Kingsley v. Hillside Coal & Iron Co., 144 Pa. 613, 23 Atl. 250; Armstrong v. Caldwell, 53 Pa. St. 284; Murray v. Allred. 100 Tenn. 100, 66 Am. St. Rep 740. 39 L. R A. 249, 43 S. W. Northcutt v. Church, 136 Tenn. 541, 188 S. W. 220, Ann Cas 1918B 545; Mori on v American a degree of continuity as accords with the nature of the business, and in such a way as will indicate his intention of exclusive appropriation.65
If, after the ownership of the minerals has become separated from that of the surface, a third person takes possession of the minerals, the statute will run in his favor as regards the minerals,66 if his possession is not only adverse, but also visible and notorious.67 But if, after the ownership of the minerals has become separated from that of the surface, a third person takes wrongful possession of the surface, his possession does not extend to the minerals, so as to enable him, by the running of the statutory period, to acquire title thereto.68