Section 1531 of the Code provides that when a party in an action of ejectment or in the statutory action in the nature of ejectment tenders an abstract of the title or titles upon which he will rely for recovery or defense as the case may be, he shall on the trial be confined to such title or titles. We are of the opinion, however, that when the party is in point of fact not confined to the title stated in the abstract which he tenders, but is allowed without objection from his adversary to adduce evidence in support of title or claim of title other than that specified in his abstract, he is entitled to go to the jury on the title which his evidence tends to support, though it be mot the title stated in *159response to the demand for an abstract of the title or titles upon which he mil rely. Hence, onr conclusion in the case before ns, that although the defendant in the abstract he tendered under the statute stated only a claim to the land unjder contract of purchase from the Alabama & Chattanooga Railroad Company, yet, if he without objection adduced evidence tending to show title by adverse possession he was entitled to have such evidence submitted to the jury and to recover upon it in the event they found he had been in adverse possession of that interest in the land which plaintiff claimed for the period of ten years. The interest which plaintiff sought to recover was the mineral deposits in and upon the soil. We find no evidence in the record of any adverse possession of this interest by the defendant. To the contrary, it is shown without controversy that the defendant held and claimed under the contract between him and the Alabama & Chattanooga Railroad Company which expressly reserved the mineral interest. It is true that the. defendant testified that he at one time .told the agent of the company that he repudiated this contract, but it none the less clearly and without conflict appears that he all along held under this writing an'd claimed only that interest in the land Avhich the company undertook therein to convey to him, having subsequent to the time of his alleged repudiation of this contract made a payment under it, had it recorded, continued to hold it and set it forth in the abstract tendered by him on the trial of this case. The question involved is not one of the severance vel non of the general and the mineral interest in land by a conveyance, but whether he claimed the mineral interest while in possession of the land, for without such claim his possession of the surface would not be adverse possession of the minerals, or, more accurately, his possession of the land being under a claim which did not embrace the minerals was not adverse to tire true owner as to the minerals. That he “never mined any coal or other mineral, or prospected for any coal or other mineral” on the land is admitted. On this state of case, the plaintiff was entitled to the affirmative charge with hypothesis as to the minerals, or mineral interest in and upon the land. But it does not follow that the court was under a duty *160to give the charge, which the plaintiff requested and the refusal of which is the subject of the only assignment of error. The charge requires a verdict not only for the mineral. interest in the land but also for the “mining rights” therein or appurtenant thereto. These mining rights are, or at least must include, incorporeal heredi-taments, lying in grant hut not in seisin, such as rights of way over the surface, the right to dig and'drive slopes and entires, and the like, rights of an intangible nature, incapable of being delivered by the sheriff or of possession by the owner, rights for a denial of or interference with which an action at law for damages would lie, and which would be considered by courts of equity, but in the nature of things cannot be recovered in an action of ejectment. It is upon these considerations that we rest our condemnation of the charge and our approval of the circuit court’s action in refusing it.
Affirmed.