Opinion
No. 21817.
January 12, 1953.
APPEAL FROM THE CIRCUIT COURT, MACON COUNTY, HARRY J. LIBBY, J.
Norman Johnston, Huntsville, Edwards, Hess Collins, Macon, for appellant.
James Glenn, Macon, for respondents.
In this suit plaintiffs, grantees of land described in a certain special warranty deed, sought to have their rights, title, and interest in said land defined and determined as between them and defendant, a mining corporation, which claimed certain rights therein. The court found the issues in favor of plaintiffs, as prayed, and defendant appealed.
Plaintiffs alleged in their petition that Binkley Mining Company of Missouri, a corporation, conveyed the land which is the basis of this controversy to George C. and Ethel Ray, husband and wife, by special warranty deed dated June 28, 1939, recorded in Book 294 at page 610 of the deed records of Macon County, Missouri; that certain rights were reserved therein, towit:
"All of the South half of the Northwest Quarter of the Southeast Quarter of Section 22, Township 56 North, Range 15 West of the 5th P.M., Macon County, Missouri, with the exception of woven wire fences and all farm buildings, except the barn which is on the South half of the Northwest Quarter of the Southeast Quarter aforesaid.
"From the foregoing, party of the first part reserves all of the coal and minerals in the ground under and beneath the surface of the entire described tract, party of the first part further reserves therefrom a roadway described as follows, to-wit: Beginning at the Southeast corner of the Northwest Quarter of the Southeast Quarter of Section 22 aforesaid, thence North 660 feet, thence West 264 feet, thence South 660 feet, thence East 264 feet to the point of beginning, containing 4 acres, more or less, which said roadway is reserved for the use and benefit of the party of the first part, its successors and assigns. Party of the first part further reserves the right to use any part of the entire tract aforesaid for a right of way for a Railroad and truck roads, or for the purpose of moving and transporting mining machinery, strip mining shovels and all other equipment over and across said tract.
"Party of the first part further reserves the right to use any part of the entire tract aforesaid for drianage or ditch purposes free from any claims for damages to parties of the second part, their heirs and assigns, and parties of the second part for themselves, their heirs and assigns, by the acceptance of this deed, expressly waive any claim for damages caused by the use of said land for said purposes."
It was further alleged that George C. and Ethel Ray, by their special warranty deed dated August 25, 1944, duly recorded in Book 312 at page 196, of the deed records of Macon County, Missouri, conveyed said real estate to plaintiff subject, however, to all reservations contained in the above deed; and that defendant, by deed dated July 1, 1947, recorded in Book 318 at page 626 of the deed records of Macon County, became the owner of all of the right, title and interest of the said Binkley Mining Company, a mining corporation, in and to the twenty acres of land here in controversy.
It is alleged that an actual controversy exists as between plaintiffs and defendant "as to the rights, uses, privileges, interests and title of the parties hereto * *; * * * as to the construction, meaning and interpretation of the reservations contained in said special warranty deed * * *;" and that defendant is constructing a roadway across said land, from its tipple located about one mile east, to other lands owned by it, located on the west side of a public road which bounds this land on the west.
The petition concludes as follows:
Wherefore, plaintiffs pray the Court to declare and determine the rights, interests, privileges, uses and interests of the plaintiffs and defendant in and to the real estate herein described and decree that the plaintiffs are the absolute owners of the surface of the above described property; that the defendant has no interest in and to the surface of said property except such use as is necessary to mine the coal and minerals lying under the surface of said property only, and for such other and further relief as to the Court may appear meet and just."
Defendant answered and set up a counterclaim. It prayed as follows:
"Wherefore, defendant prays the Court to determine the estate, title and interests of the parties, plaintiffs and defendant herein, in and to said real estate, and to define and adjudge by its decree that the defendant, all as is provided by said deed, is the fee simple owner of all minerals under said premises together with the roadway thereon specifically described, that defendant has the right to use any part of the entire tract aforesaid for a right of way for a Railroad and truck roads, or for the purpose of moving and transporting mining machinery, strip mining shovels and all other equipment over and across said tract aforesaid for drainage or ditch purposes free from any claims for damages to plaintiffs, and that defendant owns and holds all other rights, interests and title as provided for in said deed, and defendant further prays for general and further relief as to the Court shall seem just, and for its costs herein."
The decree is as follows:
"Wherefore, it is considered, ordered, adjudged and decreed, that defendant is the owner of the coal and minerals underlying the twenty acres of land hereinabove described, and the owner of an easement for the roadway as above specifically described; further, that the plaintiffs are the owners of the surface to the above described twenty acres of land and that defendant's right to use thereof for the purposes specified in the reservations is confined to the right to use the same for the mining of coal underlying said land in controversy; further, that the defendant has no right to transport coal mined on other lands over and across plaintiff's surface; and that plaintiffs recover from defendant their costs herein."
It was suggested on oral argument in this court that jurisdiction is vested in the Supreme Court. With that suggestion we agree.
Plaintiffs, in their petition, pray the court to decree that defendant has no interest in the surface of the land except for use in connection with mining coal under it. Defendant sought to have the court adjudge it to have an easement over and across the real estate for the purposes stated in the petition; and it contends that it owns, in fee simple, the roadway described by metes and bounds in the deed, which roadway was in existence when the deed was executed in favor of the Rays. The court decreed that defendant has no right in and to the surface of the land, including that part specifically described by metes and bounds, except as may be incident to the mining of coal from the land involved. The evidence indicated, as defendant contends, that there is no coal under this land.
Title to real estate is involved.
The cause should be transferred to the Supreme Court.
BOUR, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the Court. The cause is transferred to the Supreme Court.
All concur.