
    Matter of the Application of Franklin Couch, for a Writ of Mandamus, v. The Armory Commission of the Third Brigade District of the State of New York.
    (Supreme Court, Westchester Special Term,
    August, 1915.)
    Mines and minerals — title acquired by adverse possession — tenants in common — application for appointment of commissioners of appraisal— Laws of 1914, chap. 273.
    Title to mines and minerals may be acquired by adverse possession not only by the owner of the surface but by a person having no interest therein.
    The owner of the surface of certain land who was also one of the tenants in common of the mines and minerals thereunder conveyed the whole property and the grantee recorded his deed, took possession of the premises and by himself and his successors in title continued in possession thereof under such claim of title exclusive of any other right for over seventy years, and for more than twenty years prior to petitioner’s acquisition of title operated the only known mine upon the property. Held, that petitioner’s title to the property by adverse possession was good.
    Under the statutory provision (Laws of 1914, chap. 273) that where the names of owners of property sought to be acquired by the state for military and naval purposes are unknown to the armory commission notice to such owners may be given by service upon the county clerk, it is not necessary that said commission should have additional time in which to try to ascertain the names of such owners before making application for the appointment of commissioners of appraisal to determine the amount to be paid for land sought to be taken in the proceeding.
    Motion for a writ of mandamus.
    Clifford Couch, for petitioner.
    E. E. Woodbury, Attorney-General, for respondent.
   Tompkins, J.

This is a motion for a writ of mandamus directing the armory commission of the third brigade district to apply for the appointment of commissioners of appraisal to determine the amount to be paid the petitioner for lands taken on June 17, 1914, pursuant to the provisions of chapter 273 of the Laws of 1914.

The only objection raised to the motion is that the petitioner is not the owner of the whole estate in the mines and minerals, if any, in such property, and that therefore it is necessary that the armory commission sh.ould_h.ave additional time in which to try to ascertain the names of such other owners.

General Pierre Van Cortlandt, the owner of the surface of front lot No. 10, of the Manor of Cortlandt, generally known as the “Anthony Nose tract,” and also one of the tenants in common of the “ mines and minerals ” therein, the premises in question being a part of such tract, in April, 1843, conveyed the whole of such property to his son Colonel Pierre Van Cortlandt, whereupon the latter recorded his deed and took possession of the entire property, and by himself and his successors in title have continued in possession thereof under such claim of title, exclusive of any other right, for over seventy years, and, for more than twenty years prior to the petitioner’s acquisition of title, operated the only known mine upon such property.

Under such circumstances the petitioner’s title to the whole of the premises in question is perfect; title by adverse possession being as good as by grant. Sherman v. Kane, 86 N. Y. 57; Ledoux v. Samuel, 116 App. Div. 726, 728.

Title to mines and minerals may be acquired by adverse possession not only by the owner of the surface but by a person having no interest in the surface (Armstrong v. Caldwell, 53 Penn. St. 284; Caldwell v. Copeland, 37 id. 427, 432; Gill v. Fletcher, 74 Ohio St. 305; Wilson v. Henry, 40 Wis. 607; Barringer & Adams on Mines, 568, 569; 2 Washb. Real Prop. [3d ed.] 347); and may thus be acquired when a person operates a mine or carries on mining operations continuously for twenty years adversely to the rights of others.

In Armstrong v. Caldwell, 53 Penn. St. 284, it was held that if the owner of the mine is not in actual possession and a person operates such mine continuously for twenty-one years (the statutory period in Pennsylvania) adversely to the right of such owner he acquires the ownership thereof.

In Caldwell v. Copeland, 37 Penn. St. 427, it was held that adverse possession of a mine by the owner of the surface for the statutory period would give title.

In Wilson v. Henry, 40 Wis. 607, it was held that occupation under paper title, by mining operations, continuous, visible, and notorious, constituted actual adverse possession of the mines and minerals.

Colonel Pierre Van Cortlandt having entered into possession and operated the only known mine upon the property described in his deed for the statutory period, his adverse possession operates as possession of all the mines and minerals within the bounds of his deed; such possession is co-extensive with the boundaries stated in his deed. Armstrong v. Caldwell, 53 Penn. St. 284; Hicks v. Bell, 3 Cal. 219; English v. Johnson, 17 id. 107; Francoeur v. Newhouse, 43 Fed. Repr. 236; Dwinnell v. Dyer, 145 Cal. 19; Attwood v. Fricot, 76 Am. Dec. 567, 570; Donohue v. Whitney, 133 N. Y. 178, 185; Stillman v. Burfeind, 21 App. Div. 13; Lane v. Gould, 10 Barb. 257; Jackson v. Bowen, 1 Caines, 359; Finlay v. Cook, 54 Barb. 9; Smith v. Gale, 144 U. S. 509; Brobst v. Brock, 77 id (10 Wall) 519; Prescott v. Nevers, 4 Mason, C. C. 330.

There is another view of this case which is conclusive of the petitioner’s title to the mines and minerals. General Van Cortlandt, one of the tenants in common of the mines and minerals, having by his deed of April, 1843, assumed to convey the whole property to Colonel Van Cortlandt, and he having recorded his deed and entered into possession and assumed to take the entire estate, the possession so taken and held by him, and his successors in title, supplemented by a working of the only known mine on the property conveyed, for a period of over twenty years, operates as an ouster of the co-tenants of General Van Cortlandt in the mines and minerals and constitutes adverse possession of the same, and the right of the other tenants in common is barred.

In Freeman on Cotenancy (2d ed., § 197) it is said: “A conveyance by one cotenant purporting to convey an estate in severalty * * * constitutes color of title. The entry of the grantee made under the deed, and claiming an interest coextensive with that with which the deed purports to deal is an entry under color of title. The cotenants are therefore bound to take notice of the deed and of the entry made under it, and take such steps as may be required to enforce a recognition of their legal rights. Should they fail to do so, within the time prescribed by the statute of limitations, their rights will be no longer susceptible of enforcement; and their interests, by operation of that statute, will vest in the party in possession under the deed. ’ ’

In Sedgwick & Wait on Trial of Title to Land (2d ed., § 287) it is said: “ Where the grantee has obtained a conveyance of the whole estate from one of the co-tenants, entry made under such a title is a disseizin of the other cotenants. This doctrine is just and reasonable, for the grantee does not intend to enter and hold as cotenant. His entry is adverse. The sale in such case of the whole tract is in effect such an assertion of claim to the whole as cannot be mistaken, because it is wholly incompatible with an admission that the other tenant in common has any right whatever.”

In Jackson v. Huntington, 5 Peters (U. S.), 402, it was held if there be a tenancy in common the grantee of one tenant in common for the whole entering on such conveyance may set up the statute against his co-tenants in common.

In 1 American and English Encyclopedia of Law (2d ed., 806) it is stated: “A conveyance by one co-tenant of the entire estate gives color of title, and if possession is taken under it, the grantee claiming title to the whole, it amounts to an ouster of the cotenants, and the possession of the grantee is adverse as to them. ’ ’

In Sweetland v. Buell, 164 N. Y. 541, 551, it is said: “ If one tenant in common assumes to sell and convey the entire estate, apparently doing so, and his grantee assumes to take it and goes into possession, the possession thus taken and held by him may be treated as an ouster of the cotenants and constitute adverse possession. Clapp v. Bromagham, 9 Cow. 530; Bogardus v. Trinity Church, 4 Paige, 178; Town v. Needham, 3 Paige, 545; Florence v. Hopkins, 46 N. Y. 182,186; Baker v. Oakwood, 123 N. Y. 16.” See also to same effect, Hamershlag v. Duryea, 58 App. Div. 288; Wright v. Saddler, 20 N. Y. 320; Jackson v. Smith, 13 Johns 406; Clymer’s Lessee v. Dawkins, 3 Hw. (U. S.) 689.

The cases cited in the respondent’s brief (Marvin v. Brewster Iron Mining Co., 55 N. Y. 538; Arnold v. Stevens, 24 Pick. 106; French v. Lansing, 73 Misc. Rep. 80; White v. Miller, 78 id. 428) are distinguishable from this case. They are cases where the title to the mines and minerals had been severed from the surface and not again united, and in which the owner of the surface having no title or interest in the mines or minerals asserted title to the mines or minerals by reason of having been in possession of the surface for more than twenty years, and in which'it was held that the exclusive and continued possession of the surface, by its owner, could not be adverse to the owner of the mines or minerals.'

In the case at bar, General Van Cortlandt, who made the conveyance to his son Colonel Van Cortlandt, was a part owner of the mines and minerals, as well as the sole owner of the surface, and in him the title of the mines and minerals severed by the will of Gertrude Beekman in 1776 was reunited.

Further it is provided by chapter 273 of the Laws of 1914, that, where the names of the owners of the property to be appraised are unknown, notice to such owners may be given by service upon the county clerk.

In this manner, the state will be fully protected against the possible claims of unknown parties. The fact that some unknown party may have or claim to have an interest in the premises is no good reason why the armory commission, after taking possession of the premises,, should refuse to take proceedings to have the amount to be paid therefor determined. If, upon the coming in of the report of the commissioners of appraisal, it appears that any unknown party has or claims to have an interest in the award, the money may be paid into court, to be thereafter paid out, upon an application by the parties interested.

The application for a writ of mandamus will therefore be granted.

Motion granted.  