Beihl v. Martin

Appellant's claim that he did not receive a fair trial lacks merit. There is nothing in the record to indicate that the trial court magistrate exhibited racial bias by crediting appellees' trial testimony over appellant's testimony and video evidence. Moreover, the credibility of the witnesses' testimony was for the magistrate, as trier of fact, to resolve, and there is nothing in the record indicating that the magistrate's credibility determination was unsound. Judgment affirmed.

<p>Appeal by defendants, Jethro Mitchell and Wellington R. Burt, from a judgment of the District Court of Carlton County, Stearns, J., entered September 23, 1892.</p> <p>Josephine G-abiou on December 1, 1869, received a patent from the United States for the south half of the northwest quarter and the north half of the southwest quarter of section thirty-four, (34,) in T. 48, R. 16, in Carlton county. She then married Daniel Wright, and afterwards on September 7, 1872, conveyed the land to James Bar-don; and he on October 16, 1872, conveyed it to John D. Howard; and he on July 29, 1880, conveyed it to Wellington R. Burt, who on October 23, 1889, conveyed this and a large amount of other land to Jethro Mitchell and took back a mortgage for $200,000. Each deed contained covenants of warranty and was duly recorded. On November 17, 1890, Monroe Nichols contracted with Mitchell and one McClure to purchase the entire section, six hundred and forty acres, including this land, for $48,400, but the purchase was not carried out because it was learned that Mrs. Gabiou was married to Wright at the time she made her deed and her husband did not join in its execution. Nichols soon after obtained a deed of this one hundred and sixty 'acres from Mrs. Gabiou to the plaintiff John H. Rollins, in the manner stated in the opinion. Rollins commenced this action against the defendants to determine their adverse claim to the land. Mrs.. Gab.iou or Wright on August 21, 1883, obtained a divorce from her husband. Soon after Rollins commenced the action, and before defendants answered, he. conveyed the land to Charles B. Marvin and he intervened in the suit. Marvin, gave back to Rollins a mortgage on the land for $8,500. The other facts appear in the opinion. The trial court made- findings and ordered judgment for the intervener that he was the owner of the land in fee, and that defendants had no title. Judgment was entered accordingly, and defendants appeal.</p> <p>The quitclaim deed from Mrs

<p>Appeal from Boone Circuit Court . — Hon. A. H. Waller, Judge.</p> <p>(1) The court should have directed a verdict for plaintiffs because the- surface and the underlying coal having been severed by grant, the surface owners ’ possession did not carry with it the possession of the coal, and there was no other evidence of continued adverse possession. Manning v. Coal Co., 181 Mo, 359'; Cathie Coal Co. v. Lloyd, 176 111. 275; Caldwell v. Copeland, 37 Pa. St. 427; Armstrong v. Caldwell, 53 Pa. St. 284. (a) The foregoing cases settle the rule that after a severance by grant, possession of the surface is not possession of the underlying mineral and, therefore, no matter how long continued, nor under what claims, it can never work a disseizin. Before a claimant can obtain title to a thing by adverse possession, he must have had the possession; and a surface owner, merely by occupying his farm, has no more possession of another man’s mine beneath it, than he has of an adjoining owner’s land separated by a division fence. Bar-ringer & Adams, Mining Law, pp. 568-9. (b) Disconnected operations, separated by periods of from six to twelve years’ inactivity, when there was no possession of the mine independent of the surface, could not amount to adverse possession, because it lacked the essential elements of continuity, without which the acts amounted simply to trespasses. Armstrong v. Caldwell, 53 Pa. St. 284. The surface owner stands in- no better position than a stranger asserting title to the mine. Railroad v. Baker, 183 Mo. 323; Brown v. Hartford, 173 Mo. 183. (2) The two- instructions for defendants were grossly erroneous and misleading in telling the jury that the defense of adverse possession was made out if defendant' had ten years’ possession of the “property” described in the petition claiming the ownership of “said land.” The jury could have understood nothing else but that the undisputed occupation of the land, under a general claim of ownership, gave title to the