Opinion
6 Div. 906.
January 17, 1924.
Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.
Goodwyn Ross, of Bessemer, and Percy, Benners Burr, of Birmingham, for appellant.
Adverse possession of the mineral of land for 10 years gives title thereto. Possession of the mineral right follows possession of the surface. Moore v. Empire Land Co., 181 Ala. 344, 61 So. 940; Black Warrior Coal Co. v. West, 170 Ala. 346, 54 So. 200. The second count of the complaint is defective, in failing to aver that defendant entered upon the land and unlawfully withholds the same. Code 1907, § 3839; Stewart Bros. v. Ransom, 200 Ala. 304, 76 So. 70; Morris v. Beebe Henshaw, 54 Ala. 300; Betz v. Mullen, 62 Ala. 365; Salter v. Fox, 191 Ala. 34, 67 So. 1006. In a suit by one cotenant against another, he can recover only his pro rata share; he cannot recover for the benefit of other cotenants. Blackeney v. DuBose, 167 Ala. 627, 52 So. 746; Dorlan v. Westervitch, 140 Ala. 283, 37 So. 382, 103 Am. St. Rep. 35; Hooper v. Bankhead, 171 Ala. 626, 54 So. 549.
Mathews Mathews, of Bessemer, for appellee.
No brief reached the Reporter.
Where the owner of the entire estate in land conveys the surface, but retains the minerals — the grantee taking possession of the land, and occupying and using it as his own under the grant, and there being no physical severance of the minerals by any one — the possession of the minerals follows the possession of the surface, and the surface owner holds possession of the minerals for the benefit of the owner in that right. Moore v. Empire Land Co., 181 Ala. 344, 61 So. 940.
In such a case the surface owner may be said to be a quasi bailee of the mineral owner (Christopher v. C. A. Lumber Co., 175 Ala. 484, 490, 57 So. 837), and his adverse possession of the land, continued for the requisite length of time, will divest the title of the true owner both as to surface and minerals, and such a relation, once established between the respective owners of surface and minerals, will presumptively continue between their respective grantees or privies in estate, with a like effect upon the title. And so, also, of a prescriptive holding by such surface owner for 20 years or more.
Whether or not the facts in this case are sufficient to show an ouster or disseisin of James Armstrong, and his privy successors in estate, by his cotenant Shelton, and Shelton's predecessors and successors in estate (see Fielder v. Childs, 73 Ala. 567; Hamby v. Folsam, 148 Ala. 221, 224, 42 So. 548), so as to constitute an adverse possession and work a divestiture of Armstrong's interest under the limitation of 10 years, need not be considered.
It is certain, we think, as the evidence conclusively shows without dispute, that Shelton and his privies in estate have had such a possession and exclusive enjoyment of the land for more than 20 years, without any recognition of an interest in Armstrong or his successors, and without any assertion of right by them, as creates the presumption of a grant from him or them, and works an extinction of his or their title, under the doctrine of prescription and repose, notwithstanding the relationship of tenancy in common with Shelton and his privies in estate. Miller v. Vizzard, etc., Co., 195 Ala. 467, 70 So. 639; Kidd v. Borum, 181 Ala. 144, 161, 61 So. 100, Ann. Cas. 1915C, 1226; Kidd v. Browne, 200 Ala. 299, 303, 76 So. 65.
The application of the foregoing principles to the undisputed facts of the case leads to the conclusion that the defendant was entitled to the general affirmative charge, for the refusal of which the judgment must be reversed.
Defendant's demurrer to count 2 of the complaint was well taken. A complaint in statutory ejectment must allege that the defendant entered upon the premises and unlawfully withholds and detains the same. Code 1907, § 3839; Bush v. Glover, 47 Ala. 167. The decision in Bush v. Glover was under section. 2611 of the Revised Code of 1867, but the present statute has not been changed in this respect. Very clearly count 2 states no cause of action.
It is to be observed also that, even had plaintiff showed a right to recover, his interest appeared to be only one-tenth of one-third of one-fourth, which is one one hundred twentieth of the whole. As against a stranger to the title he could have recovered the entire estate for the benefit of himself and his cotenants. 19 Corp. Jur. 1216, § 317; Hooper v. Bankhead, 171 Ala. 626, 631, 54 So. 549; Blakeney v. Du Bose, 167 Ala. 627, 635, 52 So. 746.
But as against a cotenant his right to recovery is limited to his own moiety of the estate; the effect of the judgment being merely to let him into joint possession. 19 Corp. Jur. 1216, § 317; Hooper v. Bankhead, supra.
The instruction given at plaintiff's request should therefore have limited his recovery to a one hundred twentieth part instead of a one-twelfth part, and, as given, the instruction was erroneous.
Numerous other assignments of error are presented, some of which are clearly meritorious, but we deem a decision of them unnecessary.
The judgment will be reversed, and the cause remanded for another trial.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.