dissenting:
I respectfully dissent.
“To sustain the present action [for breach of the covenant of warranty or quiet involvement] would be to confound all distinction between the covenant of warranty and that of seizin, or of right to convey. They are not equivalent covenants. An action will lie upon the latter, though there be no disturbance of possession. A defect of title will suffice. Not so with the covenant of warranty, or for quiet enjoyment, as had always been held by the prevailing authority.” Scott v. Kirkendall (1878), 88 Ill. 465, 469.
It has long been settled that covenants of seizin and good right to convey are covenants in praesenti and if broken at all, are broken when the deed is delivered. (Tone v. Wilson (1876), 81 Ill. 529; Jones v. Warner (1876), 81 Ill. 343; Roberson v. Tippie (1906), 126 Ill. App. 579; Firebaugh v. Wittenberg (1923), 309 Ill. 536, 141 N.E. 379; 14 Ill. L. & Prac. Covenants §8 (1968).) Likewise well settled is that the covenant of quiet enjoyment operates prospectively and can only be broken when something equivalent to an eviction or disturbance of the possession of the grantee has been caused by one having a paramount title. Scott v. Kirkendall; Newman v. Sevier (1907), 134 Ill. App. 544; Moore v. Vail (1855), 17 Ill. 185; Jones v. Warner; 14 Ill. L. & Prac. Covenants §8 (1968).
The great weight of authority in Illinois supports the proposition that the covenant against incumbrances is also a present covenant which like seizin and right to convey is broken, if at all, when the deed is delivered. (Jones v. Warner; Firebaugh v. Wittenberg; Fechtner v. Lake County Savings & Loan Association (1977), 66 Ill. 2d 128, 361 N.E.2d 575; 14 Ill. L. & Prac. Covenants §8 (1968).) However, it appears that thereis an exception to this rule if the incumbrance is a money charge which is paid later by a remote grantee. (Eichelberger v. Homerding (1942), 317 Ill. App. 125, 45 N.E.2d 493; Richard v. Bent (1871), 59 Ill. 38, Dalton v. Taliaferro (1901), 101 Ill. App. 592.) This exception is ostensibly based on a theory of a continuing breach.
Generally, a landowner is entitled to the surface and all that is below it, and when a grantor makes a deed that contains no reservation and does not limit the estate conveyed, he conveys everything under the surface as well as on the surface. (Miller v. Ridgley (1954), 2 Ill. 2d 223, 117 N.E.2d 759; Jones v. Johnson (1974), 16 Ill. App. 3d 996, 307 N.E.2d 222.) In the instant case, the warranty deed was devoid of any exceptions or reservations. The expectation created was that title to both the surface and everything below it had been conveyed to the plaintiffs. Since, however, the grantors, the Bosts, did not have title to two-thirds of the mineral rights and no right to convey that portion, they improperly attempted to convey a greater title than they actually possessed. The covenants of seisin and of right to convey were therefore breached upon the delivery of the deed and a cause of action for the breach accrued in the plaintiffs at the time of the conveyance. (Firebaugh v. Wittenberg.) Since the instant action was commenced approximately nine years after the 10-year limitations period had expired, it was properly held barred unless the action would properly be maintained as an action on breach of a covenant which occurs upon eviction or ouster.
It is well established in Illinois that the mineral estate may be severed from the surface estate by a grant specifically of the minerals, reserving the surface, or by a grant of the surface while reserving the minerals, and, when this has been accomplished by a deed, two estates exist in the land which are subject to independent ownership and to separate taxation and which may be devised or conveyed like any other real estate. (Shell Oil Co. v. Moore (1943), 382 Ill. 556, 48 N.E.2d 400; Pyle v. Ferrell (1958), 12 Ill. 2d 547, 147 N.E.2d 341; Failoni v. Chicago & North Western Ry. Co. (1964), 30 Ill. 2d 258, 195 N.E.2d 619; see also Jones v. Johnson.) In addition, when the mineral estate has been severed, a conveyance of the surface does not carry with it title to the subsurface minerals. Catlin Coal Co. v. Lloyd (1898), 176 Ill. 275, 52 N.E. 144; Shell Oil Co. v. Moore.
When the mineral interest is severed from the surface estate it may be regarded as vacant and unoccupied land. (Failoni v. Chicago & North Western Ry. Co.; Catlin Coal Co. v. Lloyd.) Possession of the surface does not carry possession of the minerals, nor does nonuse or abandonment of the mineral interest terminate said estate. (Failoni v. Chicago & North Western Ry. Co.; Jilek v. Chicago, Wilmington & Franklin Coal Co. (1943), 382 Ill. 241, 47 N.E.2d 96.) To possess the mineral estate, one must undertake the actual'removal thereof from the ground or do such other act as will apprise the community that such interest is in the exclusive use and enjoyment of the claiming party. Failoni v. Chicago Ill North Western Ry. Co.; Pickens v. Adams (1955), 7 Ill. 2d 283, 131 N.E.2d 38; Towle v. Quante (1910), 246 Ill. 568, 92 N.E. 967.
The crux of the majority’s decision rests upon the assertion that plaintiffs’ title was “disturbed” for the first time since the 1957 deed from the Bosts when the purchasing coal company declined payment to the plaintiffs for the previously reserved two-thirds mineral interest. I assume that by “disturbed” the majority means that the plaintiffs were constructively evicted from the outstanding two-thirds mineral interest by the action of the coal company, and the covenant for quiet enjoyment implicit in the Bost deed was thereby breached.
As will be seen from cited cases, to constitute an eviction, or constructive eviction, there must be an actual or threatened disturbance, plus an assertion of a paramount title. Neither of these events transpired here. The purchasing coal company did absolutely nothing to oust plaintiffs from the outstanding two-thirds mineral interest. Neither did they assert a paramount title to the coal interest. They took no action against plaintiffs whatsoever or against the title that plaintiffs held. Their only role was to refrain from paying plaintiffs for something which they had determined for themselves that plaintiffs did not own.
The case of Scott v. Kirkendall is similar on its facts to the one under consideration in that the defendants conveyed to plaintiffs land which they did not own. The land was vacant and unoccupied and neither of the parties had ever had actual possession of the land. Plaintiffs brought an action for breach of the covenant of warranty, or quiet enjoyment. The supreme court considered the issue as follows:
“The only question presented by the record, which we need to consider, is, whether there can be a recovery in an action of covenant for breach of the covenant of warranty in a case where the land concerned is and ever has been vacant and unoccupied, without showing more than an outstanding paramount title. The great current of authority is in favor of the negative of the proposition.
It is common doctrine, and well established generally, that the mere existence of a paramount legal title which has never been asserted, can not amount to a breach of this covenant. The covenantee, or his assignee, must be disturbed in the possession, actual or constructive — he must be evicted, or there be something equivalent thereto; and in the action the plaintiff must allege and prove an ouster or eviction by a paramount title. It is not necessary, however, that he should be evicted by legal process; it is enough that he has yielded the possession to the rightful owner, or, the premises being vacant, that the rightful owner has taken possession. [Citations.] This covenant of warranty is regarded as, in effect, a covenant for quiet enjoyment, and can only be broken by something equivalent to an eviction or disturbance of possession of the grantee. [Citation.] What will be held as equivalent to eviction, authorities may differ concerning, but there is a general concurrence that something more than the mere existence of a paramount title is necessary to constitute a breach of the covenant of warranty.” (88 Ill. 465, 466-67.)
The court continues by referring to Moore v. Vail as follows:
‘Until that time, (the taking possession by the owner of the paramount title,) he might peaceably have entered upon and enjoyed the premises, without resistance or molestation, which was all his grantors convenanted he should do. They did not guarantee to him a perfect title, but the possession and enjoyment of the premises.’ ” (88 Ill. 465, 468.)
The court in Scott concluded:
“We do not see but what this fully decides the present case against the appellant. It holds that the mere existence of a paramount title does not constitute a breach of the covenant. That is all there is here. There has been no assertion of the adverse title. The land has always been vacant. Appellant could at any time have taken peaceable possession of it. He has in no way been prevented or hindered from the enjoyment of the possession by any one having a better right. It was but the possession and enjoyment of the premises which was assured to him, and there has been no disturbance or interference in that respect. True, there is a superior title in another, but appellant has never felt ‘its pressure upon him.’ ” (88 Ill. 465, 468-69.)
Also see Moore v. Vail and Chicago Mill & Lumber Co. v. Townsend (1916), 203 Ill. App. 457.
Another statement of the rule of what is necessary for a constructive eviction so as to constitute a breach of the covenant for quiet enjoyment is contained in Barry v. Guild (1888), 126 Ill. 439, 446, 18 N.E. 759:
“The breach can only be shown by proof of an eviction. It is true, an actual eviction is no. longer required, and there has been considerable discussion, and perhaps some conflict, in the decisions of courts, as to what facts must be proved in order to show an eviction, or its equivalent; but the rule deducible from all the authorities is, that there must be a union of acts of disturbance and lawful title, to constitute a breach of the covenant for quiet enjoyment, or warranty, which is in fact equivalent.” (Emphasis added.)
The facts of Barry were that a third party held what appeared to be a paramount title but since they had made no effort to take possession under their title to the exclusion of Barry, then a breach of the covenant for quiet enjoyment had not occurred.
In the case at hand neither party was in possession of the severed mineral interest. Possession could only be exercised by mining or removal and no one is doing this or threatening to do it. No one is asserting a paramount right or title against plaintiffs. No ouster or eviction is threatened. The plaintiffs have been deprived of nothing. Without question here, the covenant of seisin and right to convey has been breached and perhaps that against incumbrances, but there has as yet been no breach of the covenant of quiet enjoyment. The majority should put this question: Suppose no person or persons ever attempt to mine or remove coal or other minerals from the land in question? In that event, and it is a decided possibility, the plaintiffs will never have been evicted from the two-thirds interest in the coal and they will still have defendant’s *4000 received in the judgment granted.
I do not understand how the majority can rely upon the cases of Compton v. Trico Oil Co. (Texas) and Foshay v. Shafer (Iowa) without some indication that they were decided under statutes similar to that of Illinois. Anyway, Illinois authorities are decisive of the issues and there is no occasion to resort to cases from other jurisdictions.
I would affirm.