Gill v. Fletcher
Gill v. Fletcher
Opinion of the Court
The plaintiffs in error make two contentions: First, that as to the one-half of the gypsum underlying the land there was a severance of the title in the deed of Joseph Gill to Jesse Payne so that the grantor withheld to himself a fee simple in one-half of the mineral estate and conveyed to the grantee all of the other half of the mineral and all other rights in the land; second, that the plaintiffs in error have not lost their rights in the mineral through adverse possession by the defendant and his grantors.
It is familiar law, already recognized by this court in Burgner v. Humphrey, 41 Ohio St., 340 and 352, that the surface of the land and the minerals underlying it may belong to different owners. The doctrine is thus stated, with citations of a great number of authorities: “It is well settled that a mine may be severed from the surface, the surface being held in fee by one person and the mine by another. The ownership of a mine after severance is to all intents and purposes the same as the ownership of land, and is-attended with all the attributes and incidents
The defendant in the case at bar insists upon the technical distinction between a reservation and an exception, maintaining that, since the language of the deed is, “the said Joseph Grill reserves the half of the plaster, etc., which may hereafter he found on said land” it should be construed as a reservation and not an exception; because the express language is that of a reservation and because it is a reservation of something which was not known to. be in esse at the time of the conveyance, as shown by the words, “which may hereafter be found.” Upon the theory that the deed operated only as a reservation to the grantor of something out of the estate granted, it is urged that whatever rights the grantor reserved to himself expired with his life, because there are no words of inheritance in the reservation. The weakness of this theory lies in the fact that it does not give full force and effect to all the words of the deed. Following and in immediate connection with the language above quoted these words occur, “To have and to hold * * * the half of the plaster as above described only excepted * * *.” This language cannot be overlooked nor thrown out of the instrument. The parties meant something in using it and it can only mean that the grantor excepted out of the estate
It is conceded that if the language of the deed constitutes an exception, words of inheritance are not necessary to transmit the estate to the plaintiffs; but the use of the word “reserve” or “reserving” or of other words of similar import, does not necessarily create a technical reservation. The deed may nevertheless operate as an exception. The construction of the deed is to be drawn from the circumstances of each case and from all the words of the instrument, the object being to ascertain and give effect to the intention of the parties. In this case the words are both “reserve” and “except;” and it seems clear to us that not only the language employed but also the facts found by the circuit court justify the conclusion that it was not the intention of the grantor to reserve to himself merely an' immediate privilege which should expire with his own life, but that it was the intention of the parties to except from the grant an absolute and inheritable estate in the one-half of the plaster beneath the surface of the land conveyed. Hay’s Lessee v. Storrs, Wright’s (Ohio) Reports, 711; Sloan v. Furnace Co., 29 Ohio St., 568; Coal Creek Mining Co. v. Heck,
A separate estate in one-half of the mineral having been excepted by the grantor, it becomes a material question whether the rights of the plaintiffs are lost to them by adverse possession. It is not disputed that title to a mine which has been severed from the title to the surface may be acquired by adverse possession; but this can take place only when the possession is actual, continuous, open, notorious and hostile. It cannot be accomplished by secret trespass upon the owner’s rights and it has been held in many cases that, where there has been a severance of estates, neither the owner of the surface nor the owner of the mine can claim the other estate merely by force of the possession of his own estate. Nor does the mine owner lose his rights by mere nonuser. His title can be defeated only by acts which actually take the mineral out of his possession. We cite some of the cases which support the foregoing propositions. Smith v. Lloyd, 9 Exch., 562; Arnold v. Stevens, 24 Pick. (Mass.), 106; Caldwell v. Copeland, 37 Pa. St., 427; Armstrong v. Caldwell, 53 Pa. St., 284; Kingsley v. Coal & Iron Co., 144 Pa. St., 613; Plummer v. Coal & Iron Co., 160 Pa. St., 483; Algonquin Coal Co. v. Coal & Iron Co., 162 Pa. St., 114; Huss v. Jacobs, 210 Pa. St., 145; Marvin v. Iron Mining Co., 55 N. Y., 538.
In this connection it is--proper to direct attention to the' principle that a tenant in common cannot assert title by adverse possession against his co-tenant unless he shows a definite and continuous
Judgment reversed and judgment for plaintiffs in error.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.