SEAWELL, J., took no part in the consideration or decision of this case.
CLARKSON, J., dissenting. This was an action to establish plaintiff's title to the mineral and mining rights in three tracts of land, containing respectively 16 5/8 acres, 25 acres, and 26 1/2 acres.
Defendants denied plaintiff's title to the mineral interests in said land, and further alleged title in themselves by reason of 20 years adverse possession of said mineral interests, or seven years adverse possession under color of title.
Plaintiff offered evidence tending to show: (1) Conveyance, in 1912, by Toe River Land Mining Company to Robert (Bob) Buchanan for 2,180 acres of land (including the locus in quo), "excepting and reserving a three-fourths undivided interest in and to the minerals on said land"; (2) deed, dated in 1917, from Bob Buchanan to D. T. Vance, the plaintiff, for said grantor's entire mineral interests in the described 2,180 *Page 554 acres of land; and (3) deed from the sheriff of Avery County under execution against Toe River Land Mining Company, purporting to convey to plaintiff a three-fourths interest in all minerals in or on the described 2,180 acres of land.
For the purpose of connecting the defendants with the same source of title, the plaintiff offered in evidence the following deeds: (a) From Bob Buchanan to Jeremiah Pritchard, in 1912, for 145 acres (a part of the 2,180 acres and including the locus in quo), "reserving and excepting all mines and minerals, with right of ingress and egress. (b) From Jeremiah Pritchard to Walter Hughes, in 1917, for the same 145 acres of land, "reserving all mines and minerals, with right of ingress and egress." (c) From Bob Buchanan, in 1912, to John Pritchard for 26 1/2 acres (included in 2,180-acre tract), "reserving and excepting all mines and minerals, with right of ingress and egress." (d) From Walter Hughes, in 1918, to John S. Pritchard for 16 5/8 acres (included in the 145-acre tract) in fee simple, without reservation of minerals or mineral rights. (e) From Walter Hughes, in 1918, to Benjamin Pritchard for 25 acres (included in the 145-acre tract) in fee simple and without reservation of minerals or mineral rights. (f) From John Pritchard, in 1926, to Benjamin Pritchard for the 26 1/2-acre tract, without reservation.
Defendants offered evidence tending to show adverse and continuous use and possession of the mineral interests in and on said lands for more than seven years, and for more than twenty years.
Among other things the court charged the jury as follows:
"The paper title that he (plaintiff) has offered in evidence here, nothing else appearing, would entitle the plaintiff to be declared the owner and entitled to the possession of the mining and mineral interests in this property. . . . The court instructs you that he has offered a chain of title here that would warrant you in answering that issue yes, unless you find that the defendants have acquired title to this property by adverse possession.
"Now, the thing for you to decide and the thing that you must find out from this evidence, is whether these defendants have held adversely under those deeds which are color of title.
"The burden is on the defendants to satisfy you by the greater weight of the evidence that they have acquired title to that land either under color of title for seven years or that they have held it adversely for a period of twenty years. . . . If they have failed to satisfy you by the greater weight of the evidence that they have held that land adversely for a period of twenty years without color of title and they have failed to satisfy you by the greater weight of the evidence that they have held it adversely under color of title for a period of seven years, then it would be your duty to answer that first issue yes." *Page 555
Upon the issues submitted, the verdict of the jury was as follows:
"1. Is the plaintiff the owner and entitled to the immediate possession of the mineral and mining rights in the property alleged in the complaint? Answer: `Yes.'
"2. What damage, if any, is the plaintiff entitled to recover? Answer: `None.'"
From judgment on the verdict defendants appealed, assigning errors in the admission of testimony and in the charge of the court to the jury. The title of the defendants to the surface rights in the land described in the pleadings is not controverted, but the plaintiff seeks to establish his right to the mineral and mining interests in said lands by virtue of deeds and reservations segregating the title to the minerals and mineral rights therein.
The defendants denied plaintiff's title to the mineral interests, and furthermore alleged that they had acquired title to said mineral interests by adverse possession, either under or without color of title, for the statutory periods.
The law as to the relative rights of parties, where mineral and surface rights in land have been severed, was succintly [succinctly] stated by this Court in Hoilman v. Johnson, 164 N.C. 268, 80 S.E. 249. It was there said: "It is well settled that the surface of the earth and the minerals under the surface may be severed by a deed, or reservation in a deed, and when so severed, they constitute two distinct estates. Outlaw v. Gray,163 N.C. 325. The mineral interests being a part of the realty, the estate in them is subject to the ordinary rules of law governing the title to real property. The presumption that the party having possession of the surface has the possession of the subsoil containing the minerals does not exist when these rights are severed. Armstrong v. Caldwell, 53 Pa. St., 284. The owner of the surface can acquire no title to the minerals by exclusive and continuous possession of the surface, nor does the owner of the minerals lose his right or his possession by any length of nonuser. He must be disseized to lose his right, and there can be no disseizin by any act which does not actually take the minerals out of his possession."
It is well settled that one of the methods by which title to real property may be established is by connecting the defendant with a common source of title and showing a better title from that source. Mobley v.Griffin, 104 N.C. 112, 10 S.E. 142; Prevatt v. Harrelson, 132 N.C. 250,43 S.E. 800; Biggs v. Oxendine, 207 N.C. 601, 178 S.E. 216. *Page 556
This is the method which the plaintiff has pursued in the instant case. He offered conveyances purporting to show the derivation of his title to the described mineral interests, in 1912, from the Toe River Land Mining Company and its grantee, Bob Buchanan, as a common source of title, and offered other deeds to show that from the same source defendants derived their title to the land. However, it will be noted that defendants do not claim the mineral interests in the land under the deed from the Toe River Land Mining Company, or from Bob Buchanan, nor are they connected in title therewith as to the mineral rights. The mineral interests were expressly excepted by those grantors from the conveyances which they made to those under whom the defendants claim and own the surface rights. It was not until Walter Hughes made his deed, in 1918, to the defendants, and in 1926, when John Pritchard conveyed to Benjamin Pritchard, that the conveyances were made without reservation of minerals and mineral rights, and it was thus attempted to pass title to the entire interest in the land.
Even if plaintiff could connect defendants' chain of title to the mineral interests with the Toe River Land Mining Company as a common source with his own, the principle stated in Mobley v. Griffin, supra, would not apply because of the distinction between a conveyance, in the one instance, and a reservation in the other, of severed interests in the land. Ordinarily the acceptance of a conveyance of land operates as a recognition of the title of the grantor, and where two claim under the same grantor, it is not competent for either to deny the grantor's title; and hence the rule that one who can show a title from the common source superior to that of his adversary, nothing else appearing, makes out a legal title and he need proceed no further to prove the title of the common grantor. But this rule has been held not to apply to the title to an estate or property reserved which is thereby severed from the granted interest in the land.
In Fisher v. Mining Co., 94 N.C. 397, the plaintiffs claimed the minerals and mines as heirs of Chas. Fisher, and offered deeds showing that the defendant derived its title under a deed from Chas. Fisher wherein the minerals were excepted. The plaintiffs in that case contended that the acceptance of the deed by the grantee operated to prevent the defendant from denying the title of the grantor not only to the land conveyed but equally to the property reserved. This Court there said: "If the parties claimed the whole land, extended upward and downward, and all contained within its boundaries, or the same estate in the land, the estoppel would be operative, and the party having the superior title from the common source, would prevail. But such is not the case here. The conveyed and reserved parts are not one and the same thing. The grantor may have had himself, only an estate in the land to transfer, while the reserved minerals may have belonged to another. Precisely *Page 557 such were the relations of the succeeding owners, each being capable of passing an estate in the land, and not in the mineral deposits below the surface. The estoppel is necessarily confined to the subject matter of the conveyance to which conflicting claims are asserted. There is no repugnancy or antagonism in them, and it is entirely consistent, that one party should have title to the mines, and the other to the lands outside of the mines. Hence, the titles are traced to a common, but not the same source. This view is in accord with adjudged cases."
On rehearing in the same case (Fisher v. Mining Co., 97 N.C. 95) the holding in the former opinion was affirmed, and the Court further said: "It does not appear that either the plaintiffs or their ancestor, Charles Fisher, ever had title to the reserved minerals, which may have belonged to another, and as was said `the estoppel is necessarily confined to the subject matter of the conveyance, to which conflicting claims are asserted' — in this case, to the land, and not the minerals."
"These cases rest upon the proposition that an estoppel arising out of the acceptance of a deed is restricted to the estate as well as to thecorpus which it undertakes to transfer." Fisher v. Mining Co., 94 N.C. 397 (401); Hill v. Hill, 176 N.C. 194, 96 S.E. 958; Drake v. Howell,133 N.C. 162, 45 S.E. 539.
The deed from the Toe River Land Mining Company with reference to the mineral rights used the words "excepting and reserving." While there is a distinction between "exception" and "reservation" as used in deeds, the former term meaning some part of the estate not granted at all, or withdrawn from the effect of the grant, and the latter something issuing or arising out of the thing granted, the terms are often used indiscriminately and frequently what purports to be a reservation has the force and effect of an exception when such appears to be the obvious intention of the parties. Trust Co. v. Wyatt, 189 N.C. 107, 126 S.E. 93; Bond v. R. R.,127 N.C. 125, 37 S.E. 63; Snoddy v. Bolen (Mo.), 24 L.R.A., 507;Pritchard v. Lewis (Wis.), 1 L.R.A. (N.S.), 565.
The modern tendency of the courts has been to brush aside these fine distinctions and look to the character and effect of the provision itself.Moore v. Griffin, 72 Kan. 164; Bodcaw Lumber Co. v. Goode (Ark.), 29 A.L.R., 578, and note; 40 C. J., 971; 18 C. J., 341.
"Where the words `reservation' and `exception' are used together, without evincing any definite knowledge of their technical meaning, the intention of the parties must be ascertained from the instrument interpreted in the light of the surrounding circumstances." 18 C. J., 341.
But whether the words used in the deed from the Toe River Land Mining Company to Buchanan be construed as an exception, or a reservation, or both, the plaintiff's evidence does not connect the defendants' claim of title to the mineral rights, which were "excepted and reserved" in that deed, with a common source, so as to estop defendants from *Page 558 denying the title of the Land Mining Company to those mineral rights upon which plaintiff's title depends and from which it is derived. The defendants claim title to the surface of the land under the Toe River Land Mining Company's deed, but claim title to the mineral rights by adverse possession under color of the Hughes and Pritchard deeds for seven years, or without such color of title for twenty years.
Applying these principles of law, we conclude that the charge of the court below to the effect that the burden was upon the defendants to satisfy the jury by the greater weight of the evidence that they had acquired title by adverse possession, either under or without color of title, for the statutory periods, and that if defendants had failed to so satisfy the jury, they should answer the first issue "Yes," must be held for error and the defendants' exception thereto sustained, since the instruction given proceeds upon the improper assumption that the plaintiff under the evidence offered had shown a clear legal title to the mineral rights alleged.
The evidence here did not warrant the application of the principle set forth in Power Co. v. Taylor, 194 N.C. 231, 139 S.E. 381, and cases there cited, where instructions to the jury similar in effect to those in the instant case were held to be proper. In that case the plaintiff had shown a grant from the State and a connected chain of conveyances to itself, constituting a legal title, and defendant alleged and sought only to prove title in himself by adverse possession. There is an obvious distinction between the facts in that case and in the case at bar. Here the evidence may not be held sufficient to change the general rule that the burden of the issue is on the plaintiff, and that he must rely for recovery on the strength of his own title.
As the error pointed out is material and sufficient to require a new trial, we deem it unnecessary to discuss the other exceptions noted in the trial and brought forward in defendants' assignments of error.
New trial.
SEAWELL, J., took no part in the consideration or decision of this case.