#### J. S. HOILMAN et als. v. WALDRON JOHNSON.

(Filed 10 December, 1913.).

1. Deeds and Conveyances — Minerals—Surface of Lands — Adverse Possession — Limitation of Actions.

Where the mineral interest in lands and the surface thereof are conveyed to different grantees, each constitutes a different and distinct estate in the lands from the other, and adverse user or possession of the one sufficient to ripen title will not alone apply to the other. ‘ '

2. Same — Trials—Evidence—Questions for Jury.

The acts, of the owner.of the surface of the lands in mining for mica and other mineral interests therein which had separately been conveyed are held sufficient in this case upon the question of adverse possession, under conflicting evidence, to be submitted to the jury upon the issue of title thereto.

3. Deeds and Conveyances — Minerals—Adverse Possession of Part —Limitation of Actions — Trials—Evidence.

Where the mineral interests in lands have been separately conveyed, and there is sufficient evidence of adverse possession to ripen title in the occupant and defeat the grantee’s paper title, it applies to all of the mineral interests convéyed by the deed, and is not confined to the particular mineral or minerals which had been mined.

Appeal by plaintiff from Gline, J., at July-Term, 1913, of • Mitchell.

Civil action, tried upon this issue:

“Are the plaintiffs the owners and entitled to the possession of the mineral interests in the lands described in the complaint ? Answer: No.”

The plaintiffs appealed from the judgment rendered.

A. Hall Johnson, Blade & Wilson, Pless & McBee-for flain-tiffs.

W. L. Jjambert, Gharles H. Green for defendant.

Brown, J.

This action, as the issue indicates, is brought to recover the mineral interests in a certain tract of land which *269formerly belonged to Simeon Slagle. The plaintiff introduced a connected chain of deeds for the mineral interests from Slagle to the plaintiffs, antedating the deed of-the defendant.

The defendant claimed title to the entire fee, including the mineral interests, by deed from Simeon Slagle to the defendant, dated 29 January, 1903.

It is -admitted that the defendant owns the surface, and to show title to the mineral interests, the defendant relies on his deed as color of title, and undertakes to show seven years possession.

In apt time the plaintiffs asked the court to instruct as follows :

“You are instructed that in all the evidence the defendant has not shown sufficient evidence of adverse possession or user of the mineral interest involved in this suit, and you will answer the issue ‘Yes.’ ”

His Honor refused to give the prayer; plaintiff excepts.

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. Cyc., vol. 1, p. 994; Armstrong v. Caldwell, 53 Pa. St., 284; Caldwell v. Corpening, 37 Pa. St., 427; 87 Amer. Dee., 436; Wallace v. Elm Grove Coal Co., 57 W. Va., 449; Newman v. Newman, 7 L. R. A., N. S., 370; Plant v. Humphries, 26 L. R. A., N. S., 558.

*270As Mr. Justice Strong says in Armstrong v. Caldwell, supra, “Tbe owner of tbe surface can acquire title against tbe owner of tbe minerals underneath by no acts or continuous series of acts tbat would not give title to a stranger.”

Although tbe evidence as to continuous possession of tbe mineral interests is conflicting, measured by tbe above rule, we tbink bis Honor properly refused tbe plaintiff’s requested instruction.

Tbe defendant testifies tbat be took possession in January, 1903,- and commenced to mine at once; tbat .be bought tbe land and mineral interests, not knowing tbat tbe latter bad been previously sold.

Witness continues: “I used tbe land for farming, mining, timber, and all other purposes I needed it. I began to prospect and.mine some in two or three months.^ Mined on it five or six days tbe first year, and have mined some on it every year since. Did this in fall and winter at leisure times. Made some dumps. Took some mica out of . side veins. Worked over tbe vein for 20 feet, tunneled for 20 or 30 feet. This was on tbe 3%-acre tract.

“Then we ran a tunnel on tbe south side of my bouse on tbe 50-acre tract. This was two years after I moved there. Worked two or three days .at tbat place. Mined and bunted mica all over tbe land. When I went there, very little mining bad been done. Looked like a little prospecting after I went there. The place was torn all to jueces, bunting for mica.

“Leased it for mining to Thomas, and bis father, about a year after I bought it. They worked for about two years; then I leased to Wilt Davis. He worked along for some five years. I leased it to Logan Davis last time; was in 1910, when I gave him a written lease.

“We got a good deal of small mica, and sold it first to Mr. Willis. Then James Hoilman came there about five years ago to my bouse, bought our mica and gave cheeks for it; made no claim to it. There are thirty-five openings on the 50-acre tract made between 1903 and 1912. One opening on tbe 314-acre tract.

*271“Have paid taxes on tbe land and mineral. Have not permitted any one to work on tbe land except under me. Have not, myself, worked for any one else on tbe land since' I bought it. Tbe general custom of mining is to work in fall and winter at leisure times, opening up mines and bunting for better prospects. No regular time for working.

“Before I bought land, I worked under lease from Mr. Slagle. "Wilt Davis bad tbe lease, and I went in witb bim. Paid some royalty. Mr. Edwin 0. Guy came to my bouse about five years ago. Said be was bunting for a piece of land that Mr. Willis bad in possession. Tben pulled out a paper and asked, me if I knew certain calls. I told bim No.’ He asked to see my deed. I showed it to bim. Three or four years later be came back; be said, 'Let’s look over that Willis title.’

“He offered me $50, tben $100, for my mineral interest in my land. At last I offered to take $1,000. Said if be did not take my offer, I could sell to whoever I pleased, and be would try to sell what be held in that neighborhood.

“Eeuben Grindstaff worked 400 yards from my bouse, and I did not see bim. Never saw bim or Eeuben Hoiiman work on my land since I bought it. In 1912 Eeuben Grindstaff was at my bouse to buy mica. We were threshing wheat. Said be did not know if be could show us where be once worked; that be bad not been there in fifteen years.”

There is much other evidence unnecessary to recite introduced by tbe defendant tending to show an adverse actual use and occupation of the mineral interests continuously for over seven years from tbe time tbe defendant acquired tbe deed from Slagle prior to tbe commencement of this action.

Taking all tbe evidence into consideration, we think bis Honor properly submitted tbe question of adverse possession to tbe jury. His instructions relating thereto are in line with tbe decisions of this Court.

Tbe plaintiff further requested tbe court to charge tbe jury:

> “You are instructed that there is no evidence to be considered by you of any adverse possession to any marble on tbe land-in*272volved herein, and if you find that the defendant has ripened title to the mica and other minerals, then your answer to the issue would be 'Yes,’ but only the mica, etc.”.

His Honor refused to give the prayer, as requested. The plaintiff excepts.

This position is untenable. The defendant was not required to mine for every known mineral in order to give notice that he claimed the mineral interests. The mineral interests in land means all the minerals beneath the surface, and when the defendant sunk his shaft or opened his mines, he gave notice of his claim to all such interests included in his deed, and not to one particular mineral only.

We have been cited to no authority by plaintiffs in support of this contention, and deem further discussion of it unnecessary. • . ■

We have examined 'the remaining assignments of error, and find them without merit.

No error.