Summary
In Levy, this Court stated that "when the adverse occupant has made his proof of the ten years adverse possession, this is enough to entitle him to judgment or decree, and he need not prove more[.]"
Summary of this case from Crotwell v. T & W Homes Etc, LLCOpinion
No. 36242.
December 9, 1946.
1. MINES AND MINERALS.
Adverse possession of the surface, or that which is above it, will not operate as an adverse possession of a separate estate which is beneath the surface and which has not been used in connection with the adverse possession of the surface (Code 1942, sec. 711).
2. QUIETING TITLE.
Generally, where a party seeks to have himself adjudged the owner of realty and of every interest therein, he must make the proof of his ownership, and cannot rely on the weakness of the title of his adversary.
3. QUIETING TITLE.
Where a complainant has proved sufficient facts to entitle him to a recovery in suit to quiet title, he is thereby entitled to decree, notwithstanding that he has failed to go forward and prove more than enough, even though more than enough has been alleged in the pleadings.
4. ADVERSE POSSESSION.
Under ten-year adverse possession statute, occupant of realty thereby obtains a full and complete title, saving to persons under disability (Code 1942, sec. 711).
5. ADVERSE POSSESSION.
An adverse possession of realty for ten years not only bars the remedy but practically extinguishes the right of the party having the true paper title, and vests a perfect title in the adverse holder (Code 1942, sec. 711).
6. ADVERSE POSSESSION.
Though adverse possession may have been begun by a mere intruder without any color of title, occupant may establish title by adverse possession to the extent of his actual occupation (Code 1942, sec. 711).
7. ADVERSE POSSESSION.
The ordinary sweep of ten-year adverse possession statute operates to invest the adverse occupant on completion of ten-year period, with a new and independent title to every estate in the realty, a title not derived from or in any privity with any former owner, and such new title may be used defensively by occupant not only but also as an adequate basis to confirm or quiet his title (Code 1942, sec. 711).
8. LOST INSTRUMENTS.
Where complainant averred in suit to quiet title that realty was conveyed to complainant's predecessor by a deed that was lost and never recorded and defendants admitted execution of deed but averred that it reserved oil, gas and minerals, and there was undisputed proof that complainant and his predecessors had actual adverse possession of the realty for more than ten years, burden was on defendants to prove that there was a reservation in the lost deed, and, in absence of such proof, complainant was entitled to have title to realty and mineral rights quieted in him (Code 1942, sec. 711).
APPEAL from the chancery court of Clarke county, HON. GEO. B. NEVILLE, Chancellor.
H.F. Case, of Quitman, for appellants, Augusta Levy and Georgia Levy.
The burden of proof is on the complainant in the suit to cancel clouds and quiet and confirm his title to show clearly the validity of his own title and the invalidity of defendants' claims.
Griffin v. Harrison, 52 Miss. 824; Stevens Lumber Co. v. Hughes (Miss.), 38 So. 769; Ables v. Forrester, 182 Miss. 551, 181 So. 913; Dease v. Moody, 31 Miss. 617, 624; Boyd v. Thornton, 13 Smedes M. (21 Miss.) 338; Griffith's Mississippi Chancery Practice, Sec. 563.
Matter set up in an answer in strict response to the call of the bill and necessarily connected with and explanatory of such responsive matter is not affirmative matter in confession and avoidance.
Massingill v. Carraway, 13 Smedes M. (21 Miss.) 324; Jack v. State, 6 Smedes M. (14 Miss.) 494; Porter v. Still, 63 Miss. 357, 361; Code of 1942, Sec. 1291.
Oil, gas and minerals severed from surface estate cannot be acquired by adverse possession of surface alone.
Cook v. Farley, 195 Miss. 638, 15 So.2d 352.
The law charges a purchaser of real estate with constructive notice of every matter affecting the estate which appears in a deed that is an essential link in the chain of instruments through which his title is derived.
Stewart v. Matheny, 66 Miss. 21, 5 So. 387; Wailes v. Cooper, 24 Miss. 208; 66 C.J., Vendor and Purchaser, Secs. 957, 962; 2 Tiffany on Real Property (2 Ed), p. 224.
The above rule is the same whether the deed is recorded or not.
Baldwin v. Anderson, 103 Miss. 462, 60 So. 578; Deason v. Taylor, 53 Miss. 697; Deanes v. Whitfield, 107 Miss. 273, 65 So. 246; Henderson v. Cameron, 73 Miss. 843, 20 So. 2; 55 Am. Jur. 898, Sec. 507, p. 1083, Sec. 708.
Gilbert Cameron, of Meridian, for appellants, Mrs. Antionette P. Altmeyer and Claire A. Pollock.
The brief on behalf of Augusta Levy and Georgia Levy presents so clearly and ably the issues and the contentions of the appellants that we join in and adopt that brief and the argument.
J.C. Floyd and A.B. Amis, Sr., both of Meridian, for appellee.
Ten years' actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title, saving to persons under the disability of minority or unsoundness of mind.
Code of 1942, Sec. 711.
The contention is made by the appellants that adverse possession does not run against any owner of the mineral rights in the land unless it be shown that the adverse claimant had, during the whole period of time, been using the land for the purpose of exploring and producing oil, gas and other minerals. Since the statute declares that adverse possession of the land for ten years vests a full and complete title thereto, then when proof of adverse possession for the statutory period is made, it is necessary for him who claims title to the mineral estate under the land to show by proof that at sometime prior to the beginning or completion of the period of adverse possession, there was a severance of the two estates, one in the surface and the other in the minerals. The burden of proving the alleged reservation of the mineral interest in the lost deed was on the defendants and not on the complainant.
A mere trespasser, with or without color of title, may acquire title to land by adverse possession for ten years, and is entitled to have his title confirmed on proof of such adverse occupancy. In such a case, it would not be necessary for him to prove that there had never been any severance of the mineral and surface estates in the land. To require him to do so would require him to prove a negative which the statute does not require and which, in most cases, would be impossible. In any such case, the only proof required is that the complainant and his predecessors in title have been in the hostile, actual, open, notorious, exclusive and continuous occupancy of the land for the statutory period.
McCaughn v. Young, 85 Miss. 277, 37 So. 839.
It then devolves on the defendants to show that complainant occupied as a tenant, cotenant, life tenant, vendee of a life tenant, or such other fact as to show that he did not acquire a full and complete title as declared by the statute.
Fox v. Hilliard, 35 Miss. 160; Porter v. Still, 63 Miss. 357; Archer v. Helm, 70 Miss. 874, 12 So. 702; Sovereign Camp, W.O.W. v. Garner, 125 Miss. 8, 87 So. 458; Yazoo M.V.R. Co. v. Levy Sons, 141 Miss. 199, 106 So. 525; Harris v. Sims, 155 Miss. 207, 124 So. 325.
The motion of the defendants to exclude the testimony for complainant and grant a decree for defendants was predicated, first, on the fact that the proof did not show that the mineral estate was conveyed by the lost deed, and, second, that the proof of adverse possession failed to show that the adverse claimants had for ten years been continuously using the mineral estate as well as the surface estate, as held in Cook v. Farley, 195 Miss. 638, 15 So.2d 352. The motion as a whole was based on the bald assumption without any proof that the mineral estate had been actually severed from the surface estate by a reservation in the lost deed. In Cook v. Farley, supra, a deed was introduced in evidence which showed that fact. But not so here. No proof was offered to show that the two estates had ever been severed. And in the absence of such proof the court correctly overruled the motion to exclude.
In the absence of proof to the contrary, the law warrants the presumption that the lost deed did not reserve the minerals, but conveyed the entire estate. The lost deed was executed by C.E. Levy, M.P. Levy, J. Pollock, and Marks-Rothenberg Company to Small Brothers in 1900, and for thirty-seven years neither they nor their heirs ever asserted any claim to the land or any interest in it, although during the period from 1901 to 1937 it was being used, occupied and claimed by various persons as owners and conveyed from one to another without any reservation of the minerals.
Carruth v. Gillespie, 109 Miss. 679, 68 So. 927.
W.G. Campbell and Merchants' Specialty Company were both purchasers in good faith for value without notice of any right, title or claim to the mineral interest now asserted by the defendants, and as such bona fide purchasers acquired a fee simple title to the land including the mineral interest therein. Also W.G. Campbell, being a purchaser from an innocent or bona fide purchaser, acquired an equally good title to the entire interest irrespective of the question of notice.
See Federal Land Bank v. McCraney et al., 171 Miss. 191, 157 So. 248; Barksdale v. Leonard, 112 Miss. 861, 73 So. 736; Atkinson v. Greaves, 70 Miss. 42, 11 So. 688.
Appellee filed his bill to quiet his title to, and to have himself declared the owner in fee simple absolute of, the land in Clarke County, described as the NW 1/4 of SW 1/4, Sec. 10, Tp. 4, R. 15 E. It is admitted by the pleadings that the title had passed out of the government and thence on down by a regular and unbroken chain of conveyances to M.P. Levy and his cotenants by a deed to them dated December 22, 1887. It is averred by the bill that thereafter, and sometime before December 7, 1901, Levy, joined by all his cotenants, conveyed the land to Small Brothers, but that this deed was never recorded and has been lost. The execution of this deed was admitted by the defendants but with that admission it is averred by them that the deed reserved to Levy and his cotenants all of the oil, gas and minerals underlying the land. The complainant by an amended bill denied any such reservation.
Small Brothers, on December 7, 1901, conveyed the land, without any reservations, to John Blakeley, and there is from Blakeley on down to complainant an unbroken chain of title without any exceptions or reservations, all the deeds in this chain being duly recorded. And in addition, and more important than any of the above, proof was sufficiently made that Blakeley, soon after the date of his deed, went into actual adverse possession of the land, and that such possession was continued by him and his successors in title in unbroken sequence for more than ten years. This proof is by residence, cultivation and fencing, but there was no use made in any way of the subsurface minerals. The defendants claim among themselves the oil, gas and minerals under the reservation said to have been made in the lost deed from Levy and his cotenants to Small Brothers.
When the complainant had made the proof heretofore outlined, save that he offered none with respect to the issue whether the oil, gas and minerals had been reserved in the lost deed, he rested his case, and the defendants also rested, offering no proof on their part, their contention being that the burden of proof was on the complainant to show that there had been no reservation in the deed to Small Brothers, while the contention of the complainant on the other hand is that inasmuch as he had made proof of title by adverse possession, the burden of proceeding was thereby shifted to defendants to show the exception claimed by them from the normal reach of such adverse possession; and that is the question to be decided on this appeal.
Although the parties are represented by able counsel, no case precisely in point has been cited. We will proceed, therefore, upon applicable principles. And, first, we have the consideration that no adverse possession of the surface or that which is above it will operate as an adverse possession of a separated estate which is beneath the surface, and which has not in any way been used in connection with the adverse possession of the surface. Cook v. Farley, 195 Miss. 638, 15 So.2d 352. And, in the second place, the general rule that when a party seeks to have himself adjudged the owner of land, and of every interest therein, he must make the proof of his ownership and cannot rely on the weakness of the title of his adversary, to which, however, there must be added the further general rule that when a party plaintiff or complainant has proved sufficient facts to entitle him to a recovery, he is thereby entitled to a judgment or decree, and it is immaterial that he has failed to go forward and prove more than enough, even though the latter or more than enough has been alleged in the pleadings. Southeastern Express Company v. Namie, 182 Miss. 447, 460, 181 So. 515.
The considerations last mentioned bring us at once to the terms of our adverse possession statute, Sec. 711, Code 1942, and the effect thereof when there has been adequate proof, as there has been here, of the ten years adverse possession under the statute. In such a case, the statute is explicit that the occupant thereby obtains a full and complete title, saving to persons under disability. Long ago, in Ford v. Wilson, 35 Miss. 490, 72 Am. Dec. 137, it was declared that an adverse possession of land for the period of time prescribed by that statute not only bars the remedy but practically extinguishes the right of the party having the true paper title, and vests a perfect title in the adverse holder. And from a time equally far back, Welborn v. Anderson, 37 Miss. 155, it has been the settled rule in this state that although the possession may have been begun by a mere intruder without any color of title at all, the occupant may establish title by adverse possession to the extent of his actual occupation.
It is thus seen that the ordinary and normal sweep of the statute operates to invest the adverse occupant upon the completion of the statutory period with a new and independent title to every estate in the land — a title not derived at all from or in any privity whatever with any former owner, 2 C.J.S., Adverse Possession, Sec. 200, p. 804; 4 Tiffany, Real Property, 3rd Ed., Secs. 1171, et seq., and which may be used defensively by the occupant not only but also as an adequate basis to confirm or quiet his title. Fant v. Williams, 118 Miss. 428, 433, 79 So. 343; Itawamba County v. Sheffield, 195 Miss. 359, 13 So.2d 649; Sharon v. Tucker, 144 U.S. 533, 12 S.Ct. 720, 36 L.Ed. 532.
It would follow as a logical consequence that inasmuch as a title gained by adverse possession is a new and complete title, not dependent upon or in any manner derived from, or in privity with, any former owner, but which extinguishes the right of the latter, the normal operation of the statute must be such, in addition, that if any former owner or any person claiming under him has anything to present as an exception or reservation, the burden must be upon him who asserts the exception or reservation, for when the adverse occupant has made his proof of the ten years adverse possession, this is enough to entitle him to judgment or decree, and he need not prove more, save when he is required to meet the proof made by an opposite party as regards an exception or reservation, if and when such a claim of an exception or reservation has been made by an opposite party. Compare Itawamba County v. Sheffield, supra.
This is not only a logical legal conclusion, but one which at the same time accommodates itself to a sound practical policy. To hold otherwise would amount to a failure to preserve the purposes of the statute which is one of repose, for it would be far less than this if, after having put ten years' time and active effort in an adverse occupancy and has proved it, the occupant would be obliged to go further and labor under a burden to disprove every supposed or asserted outstanding reservation or exception.
Affirmed.
Sydney Smith, C.J., did not participate in this decision.