Armstrong v. Caldwell

The opinion of the court was delivered, by Strong, J.

That under the deed from James Caldwell to George Greer, made the 27th day of May 1831, the latter acquired the absolute ownership of all the coal under the surface of the grantor’s land, is not now in controversy. Nor is it denied that Armstrong, the plaintiff in error, has succeeded to the rights of Greer under that conveyance. But the plaintiff below, who is the son and devisee of James Caldwell, contends that Armstrong’s title has been lost, by an adverse possession of the coal, continued for a period of more than twenty-one years. This adverse possession, he claims, was taken by his father, and maintained by him and the plaintiff himself until an entry was made under the Greer title in the summer of 1852.

Notwithstanding his deed to Greer, James Caldwell remained the owner of the surface. His deed effected a severance of the right to the surface from the right to the underlying coal. It made .them distinct corporeal hereditaments. It is, no doubt, the general presumption that a party who has possession of the surface of land has possession of the subsoil also, because, ordinarily, the right to the surface is not severed from the right to the strata below the surface. But this presumption does not exist when these rights are severed. Each then becomes a distinct possession. In such a case, the possession of the surface, following the right, is as distinct from the possession of the minerals or subsoil strata, which have been severed in right, as is the possession of one tract of land from that of another not in contact with it. Hence it is settled that when, by a conveyance or reservation, a separation has been made of the ownership of the surface from that of the underground minerals, the owner of the former can acquire no title by the Statute of Limitations to the minerals, by his exclusive and continued enjoyment of the surface: Caldwell v. Copeland, 1 Wright 427 . Nor does the owner of the minerals lose his right or his possession by any length of non-user: Seaman v. Vandrey, 16 Ves. 390 ; Smith v. Lloyd, 9 Exch. 562. He must be disseised to lose his right; and there can be no disseisin by act that does not actually take the minerals out of his possession. There seems to be no reason -why the Statute of Limitations *288 should not be held applicable to all corporeal hereditaments, including those that are only sub-surface rights. The British statute of 3 & 4 Will. 4 , c. 27, certainly is applicable to such rights, and it can hardly be said to be more comprehensive than ours. In Caldwell v. Copeland it was said that adverse possession of the mine, by the owners of the surface, for the statutory period, would avail *as title. But such possession must be distinct from that of the surface. It is unaided by surface rights or surface occupancy. What, then, is adverse possession of the coal in a tract of land, in a case where the owner of the land has by deed severed the ownership of the coal from the ownership of the surface ? Its nature cannot be changed by the fact that it is more difficult of enjoyment. Like adverse possession of every other corporeal hereditament, it must be actual (as distinguished from constructive), exclusive, continued, peaceable and hostile, for twenty-one years, in order to give title under the Statute of Limitations. There is no reason for adopting a less stringent rule. The owner of the surface can acquire title against the owner of the minerals underneath by no acts, or continuous series of acts, that would not give title to a stranger. If the owner of a coal-mine is not in actual possession, and the owner of the surface, or any other person, digs pits or drives adits into the minerals and carries on mining operations there continuously for the statutory period, adversely to the right of any other, he may acquire a right. In such a case he takes actual possession of the entire body of minerals in the tract of land: Barnes v. Manson, 1 M. & Selw. 77. He may therefore acquire a title to the whole. But inasmuch as there cannot be any residence upon the coal, or cultivation, without continual pedis possessio, or retention of the hold upon the mine, there can be no ouster of the owner, and consequently no acquisition of a right. If one digs turves, or cuts wood, upon another’s land for his own family use, and if he even sells some of the turves he dug or the wood he cut to his neighbors, it is not pretended that he can acquire title to the land by such conduct, though repeated at intervals through the wdiole period of twenty-one years. Yet such acts are more notorious, and as much (if not more) a challenge of the owner’s right than is taking coal from a coal-deposit, by the owner of the surface, for his family use and for the use of his neighbors.

The court below, therefore, erred in leaving to the jury to find that the plaintiff had acquired title to the coal, by having taken out some of it for family and neighborhood uses, at intervals during twenty-one years, without any evidence that the taking had been constant and continuous. The learned judge seems to have had the impression that a less stringent rule is to be applied to possession of an underground corporeal hereditament than the *289 law demands when the question relates to possession of the surface. He therefore intimated that there might be such a relaxation of the rule, and left it to the jury to say whether there had been such a possession in this case as is requisite to give title by the statute. This was erroneous for two reasons. One has already been mentioned; and the other is, that it is for the court, and not for the jury, to determine what kind of possession is necessary to give title by the statute. And we are unable to see any evidence of such adverse possession by the plaintiff, or by his father, as justified the submission to the jury of the question whether Armstrong had lost his right. The 1st and 2d assignments of error are therefore sustained.

And so is the 3d. It was a very palpable error to instruct the jury that the deed for the coal having been made in May 1831, and the grantee having made his first entry on the vein in the summer of 1852, more than twenty-one years after his title accrued, the statute was primS facie a bar. The prima facies was all the other way. Neglect of the grantee to enter, as we have seen, did not interfere with his right, or raise any presumptions against it. Having the .title, the possession was "presumptively in him, or those holding under him ; and the burden was on the plaintiff to show that he, or his father under whom he claimed, had taken and maintained that adverse, continued, notorious and hostile possession which is essential to bar an owner’s right.

The judgment is reversed, and a venire de novo awarded.