#### ED. N. VANCE v. E. C. GUY, D. T. VANCE, LLOYD ALDRIDGE, and JEFF HOWELL.

(Filed 13 October, 1943.)

1. Minerals and Mines § 2: Estates § 1—

When rights to the minerals in land have been, by deed or reservation, severed from the surface rights, two distinct estates are created, and the estate in the mineral interests is subject to the ordinary rules of law governing the title to real property.

2. Minerals and Mines § 3: Adverse Possession § 17—

The presumption, that one in possession of the surface of land has also possession of the minerals, does not apply when these rights have been segregated.

3. Adverse Possession §§ 5, 9a—

Where one enters into possession of land, under a deed purporting to convey the land by definite lines and boundaries, without reservation or exception, his deed constitutes colorable title to the entire interest and estate in the land, in accordance with the maxim, *oujus est solum, ejus est usque act eoelum et ad inferos.*

4. Adverse Possession §§ 3, 6—

Possession of real property, to be adverse, must be actual, open, decided and as notorious as the nature of the property will permit, indicating assertion of exclusive ownership and of an intention to exercise dominion against all other claimants. Such possession must be continuous, though not necessarily unceasing, for the statutory period, and of such character as to subject the property to the only use of which it is susceptible.

5. Adverse Possession §'9b—

Where one enters into possession of land, under a colorable title which describes the land by definite lines and boundaries, and occupies and holds adversely a portion of the land within the bounds of Ms deed, by construction of law his possession is extended to the outer bounds of his deed, and possession so held adversely for seven years ripens his title to all the land embraced in his deed which is not actually occupied by another.

6. Adverse Possession §§ 3, 19, 20—

Where plaintiff’s evidence tends to show his actual possession of a part of a 375-acre tract of land and his continuous operation of three or four mines thereon, the question becomes one not of extent of possession but of its character, and a charge to the jury, that plaintiff’s possession would depend upon the size of his operations, was error.

7. Evidence § 34—

A will, duly proven and allowed in New York according to our statute, O. S., 4152, when it appears that an exemplified copy thereof so showing has been recorded here "in the county where the land lies, is admissible in evidence in the courts of this State, as a link in a chain of title.

*410Appeal by plaintiff from *Pless, J.,*at July Term, 1943, of Avery.

New trial.

Plaintiff instituted tbis action to establish bis title to tbe mineral rights in a tract of land containing 375 acres, and to recover for mica alleged to have been mined and removed therefrom by the defendants. The mineral rights in 68 acres of the tract were disclaimed. The plaintiff's title to the surface rights in the land described was not controverted, but defendants alleged that the mineral rights had been by previous conveyances segregated, and that the defendants were the owners of the minerals and mineral rights in said land as'evidenced by chain of conveyances from the original title owner. They denied trespassing on any property of plaintiff.

Plaintiff sought to establish his title to the mineral rights claimed by showing adverse possession under color of title for more than seven years prior to the institution of the action. In support of his contention plaintiff testified in substance that he entered into possession of the land under deed dated 5 March, 1925, which purported to convey the land to him by definite boundaries, in fee simple, without reservation. He offered evidence tending to show that at the time he acquired the land mining was being done on the land, and that these operations were continued by him, and by those who operated under his lease and who paid him royalties, up to the present time; that he continuously operated the mine known as the Branch mine, and that no other person other than his employees and lessees had mined on the land, except on the 68-acre tract. He further testified that though he moved his residence off the land in 1931 he had agents- and people living on the place looking after, leasing and working the mines, and the work was continued by his employees and representatives. It was testified there was another mine on the land known as the Pittman mine operated by plaintiff’s lessee Buchanan, and after the latter’s death plaintiff’s employees looked after the work in the mine and collected royalties, continuing until 1938 and 1939. Plaintiff testified that from another mine called Black mine some mica and feldspar were taken, after plaintiff acquired the property, and for which he received royalties. “I know somebody worked every year in the Black and Pittman mines.” The amount of royalties received was sufficient to pay interest on plaintiff’s $6,000 debt on the land. Plaintiff also testified that at the Branch mine there was an open cut 40 to 75 feet wide, 600 to 800 feet long, and from 3 to 20 feet deep.

There was other evidence tending to show that the workings on plaintiff’s land were “small operations” — carried on with pick, shovel and wheelbarrow; that the so-called mines were small openings, not more than a quarter to half an acre in extent, including the surrounding dumps. A shaft not completed was being sunk at the time of the suit.

*411There was evidence tending to show that defendants owning adjoining land had excavated under plaintiff’s land and removed a large amount of mica therefrom. It was alleged that the value of the mica wrongfully removed amounted to $84,000.

Defendants offered deeds showing conveyance to them of the minerals and mineral rights in and under the land, and connected chain of title from the original grant from the State in 1796.

The court charged the jury, among other things, that from the deeds and conveyances offered the defendants' had the superior title to the mineral rights involved, and that the plaintiff, holding the inferior or junior title, under the deed of 1925, must show adverse possession of the mineral rights under the colorable title of that deed. To the court’s construction that defendants’ paper title was superior plaintiff excepted.

The court defined adverse possession under color of title and charged in substance that if .the plaintiff had shown by the greater weight of the evidence adverse possession of a portion of the land described in the conveyance under which he entered, his possession would be extended by construction of law to the outer boundaries of his deed, and, if so continued, openly, notoriously and adversely, as defined, for seven years, would ripen his imperfect or colorable title into a good one as to all the land described in his deed not actually occupied by the defendants. •

Other instructions to the jury to which exceptions were noted were as follows:

“If the possession taken under the junior title is for a portion of the land so very minute and small that the true owner, even in the exercise of ordinary vigilance might remain ignorant that it included his land, or might mistake the character of the possession or the intention of the occupant, it might fairly be doubted that the deed should be held to extend beyond the actual boundaries. . . .

“So, gentlemen of the jury, if you had a deed for a hundred acres of land capable of being used as pasture, and you took your cow out and staked her off on a place in that land, just one little area where she could graze, yo.u could not ripen title to one hundred acres and claim that you had used it to the extent of its ability to be used. On the other hand, if you put 75 or 100 head of cattle on that 100 acre tract so that they could roam all over it, even if for some reason they never went to one particular portion of the land, you could still ripen title to the whole 100 acres. . . .

“As I say, the defendants don’t have to prove he had possession, but he (plaintiff) must prove affirmatively by the greater weight of the evidence that he had such possession as would indicate to the world an intention to claim the whole 375 acres for a period of at least seven years. If he has not done that, he cannot prevail.

*412“Tbe defendants in reply say there bas not been any such operations as would put tbe defendants or-anybody else on notice that tbe plaintiff was claiming tbe mineral rights to this 315 acres of land. Tbe defendants say when you consider tbe size of tbe opening of tbe dump, from one-fourth to one-half acre of land, and that to use or bold dominion over tbe mineral rights of an acre of land in 375 acres is not sufficient notice in which to put them or anybody else on notice that be was claiming tbe mineral rights over tbe whole 375 acres.”

Just before tbe conclusion of tbe charge counsel for plaintiff addressed tbe court as follows: “As I understand, if tbe plaintiff or bis representative mined any portion of this land sufficient to show bis claim of ownership in that there being no ppssession by the other side, such acts will extend to bis outer boundaries, under tbe Gilchrist case.” Thereupon tbe court stated, “I gave what I conceived to be tbe law along that line. That would be dependent upon tbe size of that operation, even though it were just in one part.”

Tbe following issue was submitted to tbe jury: “Is tbe plaintiff tbe owner of and entitled to tbe possession of tbe minerals and mineral rights described in tbe complaint as alleged in tbe complaint?” For their verdict tbe jury answered tbe issue “No.”

From judgment on tbe verdict plaintiff appealed.

*Charles Hughes, W. C. Berry, and Burlce & Burke for plaintiff.*

*McBee & McBee, J. V. Bowers, and Proctor & Dameron for defendants.*

DeviN, J.

Tbe plaintiff's asserted claim of title to tbe minerals and mineral rights in tbe land described in tbe complaint having been denied by tbe verdict and judgment below, be brings tbe case here for review, assigning error in tbe trial, and particularly in tbe judge’s instructions to tbe jury on tbe determinative issue.

It is admitted that by deeds or reservations in deeds tbe surface and tbe mineral rights in tbe land have been segregated. Plaintiff’s title to tbe surface rights therein are not controverted. By this action be seeks to establish bis title also to tbe mineral rights, and to recover for valuable minerals alleged to have been wrongfully removed from tbe land by tbe defendants. In tbe absence of other means of proof of title to these minerals *(Mobley v. Griffin,*104 N. C., 112, 10 S. E., 142), plaintiff bases bis right to recover upon seven years’ adverse possession and user of tbe minerals and mineral rights, under color of title, as provided by tbe statute, C. S., 428.

It is an established principle of law that when rights to tbe minerals in land have been by deed or reservation severed from tbe surface rights, *413two distinct estates are created, and tbat tbe estate in tbe mineral interests, being part of tbe realty, is subject to tbe ordinary rules of law governing tbe title to real property. Tbe presumption tbat one in possession of tbe surface bas also possession of tbe minerals does not apply wben these rights have been segregated. *Davis v. Land Bank,*219 N. C., 248, 13 S. E. (2d), 417; *Vance v. Pritchard,*213 N. C., 552, 197 S. E., 182; *Banks v. Mineral Corp.,*202 N. C., 408, 163 S. E., 108; *Soilman v. Johnson,*164 N. C., 268, 80 S. E., 249. Plaintiffs entry into possession of tbe land, in 1925, having been under a deed purporting to convey tbe land by definite lines and boundaries, and without reservation or exception, bis deed constituted colorable title to tbe entire interest and estate in tbe land, in accord with tbe maxim, *cujus est solum, ejus est usque ad coelum et ad inferos.*25 C. J. S., 20. Tbe question then presented and sharply controverted was whether plaintiffs acts of ownership and occupancy of tbe minerals and mineral rights were sufficient to constitute adverse possession as defined in tbe law for tbe statutory period, so as thereby to vest in him a good title. What constitutes adverse possession bas frequently been considered by this Court, and tbe opinions in tbe decided cases contain comprehensive definitions of tbe meaning of tbe term in the law of real property, notably in *Berry v. Coppersmith,*212 N. C., 50, 193 S. E., 3; *Locklear v. Savage,*159 N. C., 236, 74 S. E., 347; *Currie v. Gilchrist,*147 N. C., 648, 61 S. E., 581. Possession of real property to be adverse must be actual possession, and must be open, decided and notorious as tbe nature of tbe property will permit, indicating assertion of exclusive ownership, and of intention to exercise dominion over it against all other claimants. Tbe possession must be continuous, though not necessarily unceasing, for tbe statutory period, and of such character as to subject tbe property to tbe only use of which it is susceptible. *Locklear v. Savage,*supra; *Davis v. Land Bank, supra.*

It is also well settled tbat where one enters into possession of land under a colorable title which describes tbe land by definite lines and boundaries, and occupies and bolds adversely a portion of tbe land within' tbe boun.ds of bis deed, by construction of law bis possession is extended to tbe outer bounds of bis deed, and possession so held adversely for seven years ripens bis title to all tbe land embraced in bis deed which is not actually occupied by another. *Currie v. Gilchrist, supra;*1 Am. Jur., 909.

Plaintiff excepted to tbe judge’s instruction to tbe jury with respect to tbe extent of tbe portion of tbe property adversely occupied and possessed under color which would be sufficient to constitute constructive possession of tbe whole, and complains tbat tbe court’s language tended to convey to tbe jury tbe impression tbat mere smallness of tbe area occupied would prevent tbe application of tbe principle of constructive possession. It *414appears from tbe record tbat tbe court instructed tbe jury in tbis connection, if tbe possession was of a portion “so very minute and small tbat tbe true owner in tbe exercise of ordinary vigilance might remain ignorant tbat it included bis land or might mistake tbe character of tbe possession or tbe intention of tbe occupant, it might fairly be doubted tbat tbe deed should be held to extend beyond tbe actual boundaries (occupancy).” We think tbis statement of a principle of law applicable to slight and unintentional encroachment upon adjoining lands under a mistake or misapprehension as to tbe true dividing line *(Currie v. Gilchrist, supra),*was likely to be misunderstood by tbe jury when considered in tbe light of tbe facts of tbis case where tbe evidence tended to show continuous operation by tbe plaintiff of three or four mines or openings of comparatively small area on tbe entire tract, and as indicating tbe expression of a doubt in tbe mind of tbe court tbat such possession was in law sufficient to extend tbe possession beyond tbat actually occupied.

Tbis impression was doubtless strengthened by tbe court’s final word to tbe jury, when, in response to inquiry from counsel as to tbe application of tbe rule of constructive possession to tbe mining of a portion of tbe land, be stated, “I gave what I conceived to be tbe law along tbat line. Tbat would depend upon tbe size of tbat operation even' though it were just in one part.” Also we think tbe illustration which tbe able judge gave for tbe purpose of explaining tbe legal principles involved, was susceptible of inferences as to tbe facts in tbis case beyond tbat which be intended. It was not a question of tbe extent of tbe possession but of its character. *Green v. Harman,*15 N. C., 158. Tbe instruction that plaintiff must prove tbat be bad such possession as would indicate to tbe world an intention to claim tbe whole 375 acres, inadvertently overlooked tbe fact that plaintiff disclaimed title to tbe mineral rights in 68 acres embraced within,tbe bounds of tbe 375 acre tract.

Under tbe circumstances of tbis case we think tbe instructions to tbe jury complained of, in tbe respect herein noted, must be held for error, and tbat tbis was sufficiently material and prejudicial to require a new trial.

Tbe plaintiff’s exception to tbe admission of tbe will of George Leask as one of tbe links in defendants’ chain of title to tbe mineral interests in tbe land is without merit. Tbe will appears to have been proven in New York in tbe manner prescribed, by tbe North Carolina statutes, and tbe copy or exemplification of the will so showing, duly certified, was admitted to record in Avery County. C. S., 4152; *Vaught v. Williams,*177 N. C., 77, 97 S. E., 737. Tbat tbe corporate name of defendants’ grantor was amended in accord with tbe New York statute appears from the recitals in tbe deed.

*415Defendants’ contention tbat the judgment in this case should be affirmed for the reason that plaintiff failed to make out a case of continuous adverse possession for the statutory period cannot be sustained. *We*think the plaintiff’s evidence, considered in the light most favorable for him, was sufficient to require submission of the case to the jury.

Other exceptions brought forward in plaintiff’s assignments of error are not discussed or decided as they may not arise upon another trial.

For the reasons stated there must.be a

New trial.