#### Gill et al. *v.*Fletcher.

*Construction of language in deed*— Whether *creating reservation ■ or exception from grant*— Intention *of parties*— Conveyance *of fee simple estate in lands*— Excepting *mineral*rights— *Question of surface and sui-surface rights*— Statute *of limitations.*

1. Whether the language used in a deed creates a reservation or exception from the grant depends upon the intention of the parties as evinced by a construction of the- whole instrument in the light of the circumstances of each case.

2. Where the owner of a fee simple estate in lands conveys the lands to another in fee simple, reserving one-half of the mineral which may thereafter be found on said land and declaring that the grantee, his heirs and assigns shall have and hold the land and its. appurtenances, “the half of the mineral only excepted,” such conveyance creates an exception to the grant, leaving in the grantor and his heirs a fee simple estate in one-half of the mineral separate and distinct from the estate in the surface and the other half of the mineral conveyed to the grantee.

3. Under such a deed the sub-surface rights will not be lost by nonuser, nor by constructive possession under color of recorded deeds which are silent as to the excepted mining rights; but to bar such rights under the statute of limitations the possession must be actual, open, notorious, continuous, exclusive and adverse, shown by overt acts of unequivocal character which clearly indicate an assertion of ownership of the premises to the exclusion of the rights of the real owner.

(No. 9450

Decided June 12, 1906.)

Error to the Circuit Court of Ottawa county.

This action was begun in the court of common pleas of Ottawa county by the plaintiffs in error, who were plaintiffs below, -to quiet title to certain lands, which are now a part of said Ottawa county; and also to restrain the defendant from interfering in any manner with the right of plain*296tiffs in the premises and from preventing the plaintiffs from going upon the premises and removing one-half of the gypsum, or plaster, therefrom, and for other relief. The case was tried in the court of common pleas and also in. the circuit court on appeal, and in both courts the judgment was in favor of the defendant. The circuit court made findings of fact separate from its conclusions of law, from which findings it appears: that on the fifth of October, 1838, one Joseph Gill and his wife, residing in the county of Jefferson, Ohio, conveyed the lands in question to one Jesse Payne, who resided in Berkley county, Virginia. The lands were described as the east half of section nine, etc., “joining a fracr tional school section on the Sandusky Bay near Lockwood’s Plaster Beds and containing three hundred and seventeen acres more or less; the said Joseph Gill reserving the one-half of the plaster or the profits thereof which may hereafter be found on said land. To have and to hold the same hereby conveyed with all and singular the premises and every part and parcel thereof with every of the appurtenances (the half .of plaster as above described only excepted) unto the said Jesse Payne, his heirs and assigns forever.” The grantor, Joseph Gill, was born in February, 1763, and the grantee, Jesse Payne, was born in 1776, and they were acquainted with each other at the time of this conveyance. The said Joseph Gill died intestate as to the property which is the subject of this action, and it descended to his son, John W. Gill, who died intestate about 1872, leaving the plaintiffs herein, who are all nonresidents of the state of Ohio, his only heirs at law. In the lifetime of Jesse Payne he entered into a written agreement with his son, *297A. C. Payne, whereby he agreed to convey to the latter ninety-seven and one-half acres of the land described in the deed aforesaid, and afterwards snch proceedings were had in the court of common pleas of Ottawa county, that on or about the twentieth of February, 1866, Amos Payne, as executor of the last will of Jesse Payne, was authorized and directed to execute this written agreement by a deed conveying the said ninety-seven' and one-half acres to A. C. Payne, his heirs and assigns forever; which the executor accordingly did • convey. Neither the agreement between Jesse Payne and A. C. Payne, nor the deed from the executor of Jesse Payne to A. C. Payne, contained any restriction, limitation, reservation or exception whatever, but by its terms purported to convey to A. C. Payne in fee simple every right and interest in the premises described. That deed was filed for record on the twelfth of October, 1866, and was duly recorded in the record of deeds of Ottawa county, and A. C. Payne went into possession of the premises under the claim of title described and conveyed by said deed, without knowledge of any claim of the plaintiffs or those under whom .they claim. The deed from Joseph Gill to Jesse Payne, however, was recorded on the third day of December, 1838, in the record of deeds of Erie county, and the same was not recorded, nor a transcript of the records of Erie county relating to the premises described in the deed was not recorded in Ottawa county before the year 1888. The deed from the executor of Jesse Payne to A. C. Payne covers the land which is now held by the defendant in this action, James Fletcher, who holds by *mesne*conveyances. None of the deeds from A. C. Payne down to the defendant herein contains any restriction, *298limitation, reservation or exception whatever. The defendant,' Fletcher, and those under whom he claims? successively went into possession of the premises described in the deed to Fletcher by virtue of their respective deeds, and for more than thirty-five years next prior to the commencement of this action they have been in actual, notorious and uninterrupted possession of the premises, and have cleared, cultivated, used and improved the same for agricultural purposes only under claim of ownership of the same and every right, title and interest therein by virtue of the said deeds. There is no affirmative evidence that Joseph Gill or John W. Gill, or any of the plaintiffs, had any actual knowledge of the claim of exclusive ownership by the defendant and his predecessors in title, prior to the year 1902. On the fifth day of October, 1838, the date of the conveyance by Joseph Gill to ■ Jesse Payne, gypsum, otherwise called- plaster, was not known to exist upon the land described in the deed, but a large deposit of plaster was at that time known to exist about one and one-half miles east of the premises described in the deed, which deposit was known as Lockwood’s Plaster Beds, as mentioned in the deed. Those deposits of plaster existed in certain strata, the first or upper stratum being near the surface and broken and not continuous. Between the different strata of plaster there were layers of limestone. On the fifth of October, 1838, and up to about the year 1864, only the upper stratum was known to exist, and it was obtained by quarrying or stripping the earth therefrom, and was taken in the form of bowlders or chunks ranging in size from the size of one’s fist to many tons in weight, and after 1864 a lower stratum was found *299from which, the gypsum was obtained by stripping the earth from the same and then replacing the earth after the gypsum had been taken out. About the year 1900, other' valuable deposits of gypsum or plaster were found to exist about one-half mile west from the premises in possession of the defendant, which gypsum existed wholíy beneath the surface of the earth, and since that time extensive operations for mining have been conducted west and east of the premises of the defendant. But after the gypsum has been removed from between the strata of limestone there have, been some cavings in of the earth and the surface has been to some extent interfered with for farming purposes. No plaster has ever been actually found of taken from the surface, or from beneath the surface of the defendant Fletcher’s land, nor has there been any mining or •exploration for gypsum conducted on or under said premises. But the court finds from the evidence that gypsum, or plaster, exists thereunder and probably in quantities that would make it profitable to mine the same. This proceeding in error is prosecuted to reverse the judgment of the circuit court.

*Mr. Scott Stahl*and *Mr. S. P. Alexander,*for plaintiffs in error,

cited and commented upon the following authorities:

*Weakland*v. *Cunningham,*7 Atl. Rep., 148; *Sloan*v. *Furnace Co.,*29 Ohio St., 568; *Wolfe*v. *Scarborough et al., 2*Ohio St., 368; 2 Devlin on Deeds, sec. 836; Am. *&*Eng. Ency. Law, 457; *Deering*v. *Proprietors of Long Wharf,*25 Me., 51; *Congregational Society of Halifax*v. *Stark,*34 Vt., 243; *Henderson*v. *Mack,*83 Ky., 379; 1 Jones on Real *300Property, sec. 566; 1 Washburn on Real Property (4 ed.), 17; *Wardell*v. *Watson,*93 Mo., 107; *Hartwell*v. *Camman,*10 N. J. Eq., 128; *Kincaid*v. *McGowan,*88 Ky., 91; *Marvin*v. *Brewster Coal & Mining Co.,*55 N. Y., 538; *Edwards*v. *McClurg,*39 Ohio St., 41; 3 Washburn on Real Property, 134; *Campau*v. *Lafferty,*50 Mich., 118; *Sydnor*v. *Palmer,*29 Wis., 227; *Gordan*v. *Eans,*97 Mo., 588; *Whiting*v. *Edmunds,*94 N. Y., 309; *Piatt*v. *Longworth,*27 Ohio St., 198; *Elsenheimer*v. *Sieck, 8*Dec. Re., 101; 5 W. L. B., 645; *Cincinnati College*v. *Yeatman,*30 Ohio St., 276; Jones on Real Property, sec. 538; *Armstrong*v. *Copeland,*53 Pa. St., 284; 1 Am. *&*Eng. Ency. Law (2 ed.), 873; *Turner*v. *Stephenson,*72 Mich., 409; *Pearne*v. *Coal Creek Co.,*90 Tenn., 619.

*Mr. Wm. C. Wierman,*for defendant in error,

cited and commented upon the following authorities:

*Coleman*v. *Chadwick,*80 Pa. St., 81; *Sloan*v. *Furnace Co.,*29 Ohio St., 568; *Wiley*v. *Sirdorus,.*41 Ia., 224; *Smith*v. *Higbee,*12 Vt., 113; *Gould*v. *Coal Co.,*2 DeG. J. & S., 600; *Crouch*v. Sheppard, 4 Coldw., 389; *Curtis*v. *Gardner,*13 Metc., 461; *Bean*v. *French,*140 Mass., 229; *Ashcroft*v. *Railroad Co.,*126 Mass., 196; *Kister*v. *Reeser,*98 Pa. St., 1; 42 Am. Rep., 608; Jones on Real Property, 456; *Williams*v. *Coal Co.,*37 Ohio St., 583; *Howk*v. *Minnick,*19 Ohio St., 462; *Hogg*v. *Beerman,*41 Ohio St., 81; *Bean*v. *French,*140 Mass., 229; 1 Devlin on Deeds, sec. 222; *Ashcroft*v. *Railroad Co.,*126 Mass., 196; 3 Washburn on Real Property (4 ed.), 443; *Hornbeck*v. *Westbrook,*9 Johns., 73; 1 Wood Conv., 228; *Seymour*v. *Courtenay,*5 Burr., 2814; *Bean*v. *Coleman,*44 N. H., 542; *Marvin*v. *Iron Co.,*55 N. Y., *301538; Angell on Limitations, 413; *Jackson*v. *Porter,*1 Paine C. C., 457; *Prescott*v. *Nevers,*3 Mas., 330; *Prescott*v. *Nevers.*4 Mas., 326; *Pearsal*v. *Thorp,*1 Vt., 92; *Jackson*v. *Thomas,*16 Johns. (N. Y.), 293; *Proprietors of Ken. Purchase*v. *Laboree,*2 Me., 275; *Bogardus*v. *Trinity Church,*4 Pai. Ch., 178; *Jackson*v. *Sheldon,*5 Cow., 448; *Payne*v. *Cooksey,*8 Dec., 407; 7 N. P., 90; *Humphries*v. *Huffman,*33 Ohio St., 395; *Youngs*v. *Heffner,*36 Ohio St., 232; *Clymer*v. *Dawkins,,*3 How., 674 (11 L. ed., 778); *Harvey*v. *Briggs,*10 L. R. A., 62; *Bromall*v. *McCallion,*6 Cent. Rep. (Pa.), 715; *Day*v. *Davis,*64 Miss., 253; *Wright v. Kleyla,*104 Ind., 223; *Ewing*v. *Burnet,*36 U. S., 41 (9 L. ed., 624); *Dryden*v. *Newman,*116 Ill., 186; *Bradstreet*v. *Huntington,*30 U. S., 402; *Rutter*v. *Small,*10 Cent. Rep., 112; 68 Md., 133; *Logan*v. *Pierce,*66 Tex., 126; *Hasbrouck*v. *Burhans,*42 Hun, 376; *Barclay*v. *Howell,*31 U. S., 498 (8 L. ed., 477); *Railroad Co.*v. *Obert,*1 Cent. Rep., 384; 109 Pa., 193; *McAllister*v. *Hartzell,*60 Ohio St., 69; *Townsend*v. *Eichelberger,*51 Ohio St., 213; *Nance*v. *Fore,*24 Cal., 435; *Hager*v. *Spect,*52 Cal., 579; *Dunn*v. *English,*23 N. J. Law, 126; *Adams*v. *Frothingham,*3 Mass., 352; *Mills*v. *Catlin,*22 Vt., 98; *Watson*v. *Boylston,*5 Mass., 411; *Middleton*v. *Pritchard,*38 Am. Dec., 112; *Cocheco Mfg. Co.*v. *Whittier,*10 N. H., 305; *Bushnell*v. *Proprietor,*31 Conn., 150; *Charles River Bridge*v. *Warren Bridge,*11 Pet., 589; *City of Alton*v. *Ill. Trans. Co.,*12 Ill., 38; *Rung*v. *Shoneberger,*26 Am. Dec., 95; *Pike*v. *Munroe,*36 Me., 309; *Jackson*v. *Hudson,*3 Johns., 375; *Budd*v. *Brooke,*43 Am. Dec., 321; 2 Devlin on Deeds, sec. 848; *Craig*v. *Wells,*11 N. Y., 315; *Marshall*v. *Turmbull,*28 Conn., 183; *State*v. *Wilson,*42 Me., 9; *Whitaker*v. *302*Brown,*46 Pa., 197; *Munn*v. *Worrall,*53 N. Y., 44; *Moulton*v. *Trafton,*64 Me., 218; *Barnes*v. *Burt,*38 Conn., 541; 2 Devlin on Deeds, secs. 979, 980; Bryan on Petroleum and Natural Gas, sec. 71; see also notes under the case of *Kincaid*v. *McGowan,*13 L. R. A., 289, and notes under *Hagerty*v. *Lee,*20 L. R. A., 631; Washburn on Real Property (4 ed.), 432; *Jackson*v. *Gardner,*8 Johns., 394; *Grubb*v. *Grubb,*101 Pa. St., 11; *Jackson*v. *Myers,*3 Johns., 388; *Esty*v. *Baker,*50 Me., 331; *Melvin*v. *Proprietors of Locks,*5 Metc., 27; secs. 558 and 560, Rev. Stat.

Davis,' J.

The plaintiffs in error make two contentions: First, that as to the one-half of the gypsum underlying the land there was a severance of the title in the deed of Joseph Gill to Jesse Payne so that the grantor withheld to himself a fee simple in one-half of the mineral estate and conveyed to the grantee all of the other half of the mineral and all other rights in the land; second, that the plaintiffs in error have not lost their rights in the mineral through adverse possession by the defendant and his grantors.

It is familiar law, already recognized by this court in *Burgner*v. *Humphrey,*41 Ohio St., 340 and 352, that the surface of the land and the minerals underlying it may belong to different owners. The doctrine is thus stated, with citations of a great number of authorities: “It is well settled that a mine may be severed from the surface, the surface being held in fee by one person and the mine by another. The ownership of a mine after severance is to all intents and purposes the same as the ownership of land, and is-attended with all the attributes and incidents *303peculiar thereto. The mine itself may in turn be divided longitudinally and each stratum become the subject of a grant, the mine thus becoming the property of as many owners as there are different strata. Severance may be accomplished by a conveyance of the mines and minerals only, or by a conveyance of the land with a reservation or exception as to the mines and minerals.” 20 Am. & Eng. Ency. Law (2 ed.), 771-773.

The defendant in the case at bar insists upon the technical distinction between a reservation and an exception, maintaining that, since the language of the deed is, “the said Joseph Grill *reserves*the half of the plaster, etc., which may *hereafter he found*on said land” it should be construed as a reservation and not an exception; because the express language is that of a reservation and because it is a reservation of something which was not known to. be *in esse*at the time of the conveyance, as shown by the words, “which may hereafter be found.” Upon the theory that the deed operated only as a reservation to the grantor of something out of the estate granted, it is urged that whatever rights the grantor reserved to himself expired with his life, because there are no words of inheritance in the reservation. The weakness of this theory lies in the fact that it does not give full force and effect to all the words of the deed. Following and in immediate connection with the language above quoted these words occur, “To have and to hold * * * the half of the plaster as above described only excepted * * *.” This language cannot be overlooked nor thrown out of the instrument. The parties meant something in using it and it can only mean that the grantor excepted out of the estate *304granted and retained in himself the fee simple, which he already had, in the one-half of the plaster. It cannot be maintained that the plaster was not *in esse*at the time of the conveyance. With good reason it was at that time believed to exist, although it had not been “found;” and hence the reservation or exception. The court found that it exists now and the necessary inference is that it existed then. The case is not at all like cases in which an estate is granted and at the same time some new right or privilege is reserved out of it to the grantor, as, for example, a right of way or other easement.

It is conceded that if the language of the deed constitutes an exception, words of inheritance are not necessary to transmit the estate to the plaintiffs; but the use of the word “reserve” or “reserving” or of other words of similar import, does not necessarily create a technical reservation. The deed may nevertheless operate as an exception. The construction of the deed is to be drawn from the circumstances of each case and from all the words of the instrument, the object being to ascertain and give effect to the intention of the parties. In this case the words are both “reserve” and “except;” and it seems clear to us that not only the language employed but also the facts found by the circuit court justify the conclusion that it was not the intention of the grantor to reserve to himself merely an' immediate privilege which should expire with his own life, but that it was the intention of the parties to except from the grant an absolute and inheritable estate in the one-half of the plaster beneath the surface of the land conveyed. *Hay’s Lessee*v. *Storrs,*Wright’s (Ohio) Reports, 711; *Sloan*v. *Furnace Co.,*29 Ohio St., 568; *Coal Creek Mining Co.*v. *Heck,**30515 Tenn. (Lea), 497; *State*v. *Wilson,*42 Me., 9; *Bridger*v. *Pierson,*45 N. Y., 601; *Wood*v. *Boyd,*145 Mass., 176; *Whitaker*v. *Brown,*46 Pa. St., 197.

A separate estate in one-half of the mineral having been excepted by the grantor, it becomes a material question whether the rights of the plaintiffs are lost to them by adverse possession. It is not disputed that title to a mine which has been severed from the title to the surface may be acquired by adverse possession; but this can take place only when the possession is actual, continuous, open, notorious and hostile. It cannot be accomplished by secret trespass upon the owner’s rights and it has been held in many cases that, where there has been a severance of estates, neither the owner of the surface nor the owner of the mine can claim the other estate merely by force of the possession of his own estate. Nor does the mine owner lose his rights by mere nonuser. His title can be defeated only by acts which actually take the mineral out of his possession. We cite some of the cases which support the foregoing propositions. *Smith*v. *Lloyd,*9 Exch., 562; *Arnold*v. *Stevens,*24 Pick. (Mass.), 106; *Caldwell*v. *Copeland,*37 Pa. St., 427; *Armstrong*v. *Caldwell,*53 Pa. St., 284; *Kingsley*v. *Coal & Iron Co.,*144 Pa. St., 613; *Plummer*v. *Coal & Iron Co.,*160 Pa. St., 483; *Algonquin Coal Co.*v. *Coal & Iron Co.,*162 Pa. St., 114; *Huss*v. *Jacobs,*210 Pa. St., 145; *Marvin*v. *Iron Mining Co.,*55 N. Y., 538.

In this connection it is--proper to direct attention to the' principle that a tenant in common cannot assert title by adverse possession against his co-tenant unless he shows a definite and continuous *306assertion of adverse right by overt acts of unequivocal character clearly indicating an assertion of ownership of the premises to the exclusion of the right of the co-tenant. This principle has been so-generally recognized by the courts that it may be said to be elementary. It has been distinctly declared by this court in *Youngs*v. *Heffner,*36 Ohio St., 232. Therefore, when by the exception and severance of title in the mineral by the deed, the grantor, Grill, and the grantee, Payne, became tenants in common in the mineral, each owning one-half,, neither the grantee nor those holding under him could acquire title through the statute of limitations as against the plaintiffs unless they are able to show such open and unequivocally adverse possession of the mineral rights as would put the plaintiffs and their ancestors upon notice. Actual possession of the surface and constructive possession of the mineral under color of deeds will not be sufficient. It. must be an actual interference with the seizin of plaintiffs with denial of their title. The record of deeds from Payne’s executor, and of *mesne*conveyances down to the defendant, which deeds convey the full title with no exceptions or reservations, cannot operate as adverse possession, nor as notice of an adverse claim. The deeds being silent as to the-mining right in Grill and his heirs, which had been severed by the deed from Grill to Payne, they could only be construed as conveying only such title as Payne, or his grantees, had. As to the severed mining estate, a distinct title must be asserted and established. *Kincaid*v. *McGowan,*88 Ky., 92, and cases cited above. There was no open, unequivocal, exclusive and adverse possession in this case; and to hold otherwise, in our opinion, would be inconsist*307ent with, the findings of fact and with the line of decisions which we have cited.

*Judgment reversed and judgment for plaintiffs in error.*

Shauck, C. J., Price, Crew and Summers, J.J., concur.