(dissenting).
■ I find myself unable to concur in the opinion of the majority of the Court.
If, as contended by appellees, there was never in fact a severance of the minerals from the surface, then there is no need to resort to the statutes of limitations, because, if such be conceded, then Worsham acquired the title to both the surface and the minerals under the instruments referred to in the majority opinion.
But if appellees must resort to the statutes of limitation to maintain their defense, it must be upon the theory that there was a severance of the minerals. In my judgment, the undisputed evidence shows that the deed from the trustees accomplished a, severance of the minerals from the surface.
It is my view that the appellees have shown no adverse possession of the minerals. I find nothing in either Art. SS19 or Art. 5519a which will enable a party to establish limitation title without showing adverse possession. Possession of the surface is not enough. The decision in Rio Bravo Oil Co. v. McEntire, 128 Tex. 124, 95 S.W.2d 381, 96 S.W.2d 1110, appears to me to be controlling here. For the rule in other jurisdictions, see the cases cited in annotations in 13 A.L.R. 372 and 67 A.L.R. 1440. The rule is thus stated by the editor of the former annotation:
“The decisions are unanimous in holding that where the title to the mineral right has been severed from the title to the surface, possession of the surface by its owner is not adverse to the owner of the mineral below it. The mineral owner does not lose his possession by any length of nonuser, and the surface owner cannot acquire title to the minerals by adverse possession based on his exclusive and continued occupancy of the surface alone.”
Reference is also made to the discussion in 31 Tex.Jur. 564, and cases there cited.
While the appeal before us presents other questions of importance, I doubt if it would be of any benefit to discuss them here, in view of the disposition which has been made of the appeal, further than to say that I am of opinion that there is reversible error in the judgment of the trial court.