
    *Anderson v. Harvey’s Heirs.
    July Term, 1853,
    Lewisburg.
    Adversary Possession — interlock—Case at Bar. — R held, a patent for 1200 acres of land, and T-J lield a junior patent for 2100 acres, which covered a part of tlie land included in R’s patent. By a decree made in 1807, R was directed to convey to H that part of the land covered "by his patent which was included in the patent of H. No deed was executed, hut in 1805 H entered upon this tract and cultivated and improved a part of it, though not the part included in the patent of R. He held possession of his land until his death in 1831 and his heirs continued to hold possession. There was no actual occupancy of the interlock until 1836 when a purchaser under R cut the timber upon it and converted it into coal. R died in 1817 and in 1834 his executor and devisees conveyed the 1200 acre tract except so much as was decreed to H by the decree oí 1807. R held several other tracts adjoining the tract of 1200 acres, one of which of junior date to that covered the same interlock, and his executor and devisees by deed of the same date as the other, conveyed to the same parties these several tracts of land without any reference to the decree of 1807. The subsequent conveyances of this’ property either referred to these deeds or referred to subsequent deeds which referred to them. In 1849 A the then owner of the land under R took iron ore from the interlock aforesaid, and tiie heirs of H filed a bill to enjoin him. Held:
    i. Same— Same-Actual Possession of Patent by Claimant — Effect.—H having entered upon his land and improved it and held possession, under his patent and decree of 1807, his possession and that of his heirs gave them perfect title to the extent of the limits of his patent,
    a. Same — Temporary Possession of Interlock — Effect. —The temporary occupancy of the purchaser under R and the cutting and taking off the wood from the interlock was not a disseizin of the heirs of H.
    3. Two Deeds — Considered as Part of Same Transao tion — Case at Bar. — The two deeds of the ex’or and devisees of R having been made at the same time and to the same parties, must be considered as parts of one transaction and as constituting in law one entire deed; and therefore though one of the deeds mates no exception of the part of the land embraced within the bounds of H’s tract of land, yet as the other does, the effect of the two deeds taken together is to except out of the grant in each the land in the interlock as fully as if the exception had been in both deeds.
    *4- Adversary Possession — Interlock — Exclusive Possession by Claimant — Effect.—The purchasers from the ex’or and devisees of R had no possession either actual or constructive of this interlock; but it was in the exclusive adversary possession of the heirs of H claiming and holding by a perfect title; and the deed of these purchasers could convey no shadow of right to the interlock as against the heirs of H.
    5. Injunctions — Against Trespass — Injury to Mines. —Though the heirs of H might have maintained trespass against A, y et equity had jurisdiction to enjoin A from taking ore from the interlock.
    On the 12th of December 178S, a patent was issued to David Ross for twelve hundred acres of land lying on Catawba creek in the county of Botetourt; and on the 13th of May 1786 another patent issued to Ross for four hundred and eighty acres of land lying on the same creek. The boundaries of these two tracts interlocked, and both covered the piece of land which was the subject of controversy in this case.
    On the 9th of June 1787 a patent issued to Robert Harvey assignee of Jacob Tittle, for three hundred and eighty-four acres of land on Catawba creek: And on .the 11th of June 1787-another-patent issued to Harvey for twenty-one hundred acres of land lying on the same creek. This patent was founded on an inclusive survey which embraced two tracts, one of three hundred and ninety acres granted to Dennis Getty in 1772, and the other of three hundred acres assigned to Harvey by James McGavock; and the residue of the tract was never before granted. Harvey seems to have entered upon this land prior to 1807, and to have cleared a part of it and built a furnace upon it for making iron.
    In 1803 Harvey filed his bill in the County court of Botetourt against Ross, in which he charged that his patents were founded on older entries and surveys than Ross’ patent for twelve hundred acres, and that Ross with full knowledge of the plaintiff’s claims had fraudulently procured that patent, which comprehended a large portion of the tracts of three hundred and *eighty-four acres, embraced in his patent. And he prayed that Ross might be compelled to convey to him the land included in his patent for twelve hundred acres, which was covered by. the plaintiff’s patents.
    Ross answered the bill stating that in making his entries and surveys he relied entirely on the surveyor of the county : that there was no attempt to hurry through the proceeding; and that he knew nothing of the claims of the plaintiff set up in the bill. The cause came on to be heard on the bill, answer, and exhibits, the latter of which were Harvey’s patents and copies of entries; when the court made a decree that Ross should convey to the plaintiff with special warranty all the lands comprehended within the bounds of the plaintiff’s patents for three hundred and eighty-four and twenty-one hundred acres, that were comprehended within the bounds of Ross’ patent for twelve hundred acres; and that the plaintiff be quieted in the possession thereof. Nothing seems to have been done under this decree. Harvey continued in possession of his tract of twenty-one hundred acres, up to the time of'his death in 1831, and there is some evidence, though it is rather doubtful, that he at one tíme, took some iron ore from the land in controversy.
    Ross acquired several other tracts of land adjoining the tract of twelve hundred acres, making' in all between seven and ten thousand acres; but the precise boundaries or location of these several tracts do not seem to have been known with any certainty. He died in 1817.
    Previous to July 1834 William Ross seems to have acquired a right to the tract of twelve hundred acres patented as before stated to David Ross, and he had purchased of McDonald and wife, one of the heirs of Robert Harvey, a small tract of one hundred and sixty-four acres adjoining thereto ; and on the 16th of July 1834 he conveyed these lands to the Catawba iron *works company. In this deed the twelve hundred acre tract is conveyed as follows: “So much of a tract of twelve hundred acres of land, originally patented to David Ross by patent bearing date the 12th day of December 1785, as is now owned by the said William Ross, being all that part of the said tract not decreed to Robert Harvey by a decree rendered by the County court of Botetourt in the year 1807, in a cause therein depending between the said Robert Harvey as plaintiff and the said David Ross defendant:” And then the boundaries of the whole tract are given. William Ross did not have the legal title to this land: And by deed bearing date the 12th day of August 1834, Frederick A. Ross as executor and devisee of David Ross, and the other devisees of David Ross conveyed this tract of land to the Catawba iron works company, by the same description as that contained in the deed from William Ross. By deed of the same date the executor and devisees of Ross conveyed to the same company all the lands on Catawba creek and its branches which they derived from David Ross. These tracts are enumerated in the deed and described by the quantity and date of the surve3r, with a general reference for a more particular description of the several tracts to the records in the surveyor’s office. The number of tracts was twenty-two; and the whole quantity as stated in the deed, eight thousand five hundred and twenty-nine acres.
    The Catawba iron works company having become very much embarrassed, by deed bearing date the 14th of August 1840 conveyed all its property in trust for its creditors. This deed described the lands of the company as “one tract in the county of Botetourt on the waters of Catawba creek containing twelve hundred acres, be the same more or less, it being the same land purchased in part by William Ross from the representatives of David Ross, and conveyed by ^Frederick A. Ross executor of David Ross to the company, and in part of the land purchased by William Ross of McDonald one of the devisees of Harvey. Also one other tract lying, &c., made up of several smaller tracts formerly owned by David Ross and conveyed by Frederick Á. Ross executor, &c., to the company, containing between seven and ten thousand acres.”
    A suit in equity having arisen out of the last mentioned deed, in the Circuit court of Botetourt, the land was sold under a decree of that court; and the commissioners by their deed bearing date the 10th of December 1847, conveyed the land to the purchasers William S. Triplett executor of John R. Triplett, and Peachy R. Grattan executor of D. I. Burr; they being the creditors entitled to the proceeds of the sale-This deed recites the decree directing the sale, and conveys all the real estate which belonged to the Catawba iron works company, _ and which was conveyed by that company to trustees as aforesaid: and the land is described as in that deed. By another deed bearing date the 11th day of January 1848 these executors and the dev-isees of David I. Burr and John R. Trip-lett conveyed to Joseph R. Anderson, John T. Anderson and William N. Anderson these same lands as embraced in the deed from the Catawba iron works company to trustees as aforesaid, and which were afterwards sold by commissioners under the decree of the Circuit court of Botetourt, and conveyed by them to the said executors. And John T. and William N. Anderson in December 1848 conveyed their interest in these lands to Joseph R. Anderson.
    In 1849 Joseph R. Anderson being engaged in making iron at the furnace on the lands aforesaid, commenced to raise ore from a mine situated on a part of the land included within the boundaries of the patents for twelve hundred and four hundred and ^eighty acres which had been issued to David Ross as before stated, and which was also included within the boundaries of the patent to Harvey for twenty-one hundred acres: And thereupon the devisees of Harvey applied to the Circuit court of Botetourt county for an in junction to restrain him from raising ore within the boundaries of their said tract of land. In their bill they set out their original title to the land and the decree of the County court of Botetourt of 1807. They charge that soon after said decree Harvey took possession of the land covered by his patent and that of Ross for twelve hundred acres, and took ore from thence for the supply of his furnace; and that he held peaceable possession of it until his death in the year 1831. They say that it does not appear that Ross ever executed the deed directed by the decree of 1807; but that in all the conveyances of the tract of twelve hundred acres by the hires of Ross and those claiming under them, the rights of Harvey under his patent and the decree aforesaid are expressly recognized and reserved. They therefore pray for an injunction to restrain Anderson and his agents from raising ore on said land until the rights of the parties may be determined by proper legal proceedings; and for general relief. , The injunction was granted.
    Anderson demurrer to the bill; and also answered. He said that he received a conveyance for the la nd with general warranty, and deemed it unnecessary therefore to make any particular examination of the title. That by the conveyances to him, he was invested with the legal title to the lands, and ore bank claimed by the plaintiffs ; and that in these deeds there was no reference to the decree of 1807. That he had never heard of that decree, or that Harvey or his devisees had ever set up a claim to any portion of the lands which he had purchased, and which had been conveyed to him as hereinbefore mentioned, until ^shortly before the institution of this suit. That he had never seen the deeds in which this decree is referred to until this suit was commenced; and he denies that the grantors in these deeds recognize any right in Harvey under said decree: They only recognize the existence of the decree. That he holds the ore bank and lands in controversy under the other deed executed by the executor and devisees of David Ross, which conveys the tract of four hundred and eighty acres, and which includes the ore bank. He denies that Harvey took possession of the land in controversy, shortly after the rendition of the decree; and he believes he never did take possession of it; or that he took any ore from the mines within the interlock at any time previous to 1829. That probably after 1828, his furnace was supplied in part with ore taken from thence in 1829 and 1830, but he had ceased to take it for more than a year before his death in 1831. That this was not raised by Harvey or persons under his direction, but by persons from whom he bought the ore by the load, and who raised the ore wherever they chose to get it, whether on Harvey’s or the adjoining lands; and that in fact a large portion of the ore used by Harvey at his furnace was taken from lands of Ross to which Harvey never pretended to have any title. That the Catawba iron works company took possession of the land in controversy under the patent to David Ross and the conveyance to them; that they cut a large portion of the timber off the land and coaled it upon the land within the bounds of the interlock and within a few yards of the ore bank in controversy.
    The defendant further answering insisted that the decree of 1807 conferred no title on the plaintiffs to the land in controversy: That unless it could be carried into execution it was a mere nullity; and whether it could be executed could only be ascertained *by the plaintiffs filing a bill against the representatives of Ross to enforce it. That the decree was illegal and erroneous and ought never to have been pronounced, as was apparent from the record of the cause; which he exhibited. That he was a bona fide purchaser without notice of the plaintiffs’ claim; and having the legal title and at least equal equity, his was the better right; and ought not now to be disturbed after the plaintiffs had slept upon their rights, if they had any, for more than forty years.
    By a survey made in the progress of the cause, it appeared that the line of Harvey’s tract of twenty-one hundred acres, includes the ore bank in which the defendant had raised ore by a few feet. And it appeared from the testimony, which was voluminous, that ore had been raised at this place by persons who sold ore to Harve3r, and probably, though this is somewhat uncertain, that at one time persons in the emploj'ment of Harvey raised some ore at the same place. It was proved that in 1836 or 1837 the Catawba iron works company cut the wood off the land in the interlock and there converted it into coal. Ho person in the neighborhood seems ever to have heard of the decree of 1807.
    The cause came on to be heard in April 1850, when the court held that the rights of Harvey and Ross to the land in controversy were settled by the decree of 1807. That this decree equally affected any rights to this land which Ross may have had under his patent for four hundred and eighty acres. That as Harvey and those claiming under him, had been in possession of the tract of twenty-one hundred acres ever since said decree, operating a furnace, situated upon it, during a large portion of the time, they must be regarded as in possession of the interlock as part of the said tract, even if it was not proved that they had actual possession at any time, of the said interlock, until an adverse ^possession of Ross or those claiming under him was proved. That the acts relied on by the defendant to prove adverse possession, did not amount to an ouster of the heirs of- Harvey; and that they must be considered as in possession when the defendant entered upon the land; and that they were entitled to the protection of the court to avoid the injurj’- complained of in the bill. It was therefore decreed that the injunction be perpetuated with costs. From this decree Anderson applied to this court for an appeal, which was allowed.
    J. T. Anderson and Michie, for the appellant.
    Baxter, for the appellees.
    
      
      Two Deeds -Construed as Part of Same Transaction. —In Osborne v. Cabell, 77 Va. 465, it is said: “The circumstance that the deed to the lot in Richmond, the deed of trust on the Lancaster plantation, and the agreement, were all executed in the same city, on the same day, and acknowledged before the same magistrates, when taken in connection with the fact that the agreement contemplates the execution of those deeds, to fully effectuate its objects, clearly shows that these writings are but parts of one transaction, and should be construed as one entire instrument. Anderson v. Haney's Heirs, 10 Gratt. 396; French v. Townes et ais., 10 Gratt. 522.”
      See also, principal case cited in foot-note to Walden v. Walden, 33 Gratt. 88.
    
    
      
      Adversary Possession — Statute of Limitations. — In Va. Mining & I. Co. v. Hoover, 82 Va. 454, 4 S. E. Rep. 689, it is said: “The statutes of limitation are to be enforced by the courts like any other statute. It has been often said by this court that they are statutes Of repose, and are dictated by a wise policy founded upon the presumption against him who has unreasonably delayed the assertion of his demand, and in favor of him who has long exercised the dominion of owner. Taylor v. Burnsides, 1 Gratt. 187; Flanagan v. Grimmet, 10 Gratt. 421; Smith v. Chapman, Id. 445; Anderson v. Harvey, Id. 386."
      
      See also, on the subject of “Adversary Possession," Taylor v. Philippi, 35 W. Va. 560, 14 S. E. Rep. 132, citing the principal case.
    
    
      
      Equity Practice — Injunctions—Trespass—Waste.—In Bettman v. Harness, 42 W. Va. 438, 26 S. E. Rep. 272, it is said; “We know but little of petroleum oil and gas hidden far in the bowels of the earth, but from that little we can say they are of great value, and are exhaustible, and, when exhausted in a locality, cannot be restored by the art of man, and perhaps never even by the mysterious alchemy of nature. Surely, they fall under the rule which considers the subtraction of precious things from under the soil as working irreparable injury, as much as iron ore in Anderson v. Harvey’s Heirs, 10 Gratt. 386, to which I refer as decisive and binding under this branch of this case. We know that these substances are the sole property and value of the plaintiff’s estate under that lease, — the only object of tbe lease. In Williamson v. Jones, 39 W. Va. 231, 19 S. E. Rep. 436, we decided that petroleum oil in place is a part of the realty, and its unlawful removal a dis-herison which equity will enjoin.”
      See, in accord, citing the principal case, Woods v. Early, 95 Va. 314, 28 S. E. Rep. 374; Miller v. Wills, 95 Va. 340, 28 S. E. Rep. 337; Rakes v. Rustin Land, etc., Co., 2 Va. Dec. 160; Wood v. Braxton, 54 Fed. Rep. 1008; 6 Va. Law Reg. 192; Mason City, etc., Co. v. Town of Mason, 23 W. Va. 220.
      In Cresap v. Kemble, 26 W. Va. 607, the principal case is distinguished, the court holding that an injunction would not lie to restrain the taking of coal from an open mine when the proof did not show that the coal constituted the chief value of the land.
      See generally, monographic note on "Injunctions” appended to Claytor v. Anthony, 15 Gratt. 518.
    
   DANIFB, J.

The bank or mine of iron ore, to restrain an alleged trespass in which the injunction in this case was allowed, is, according to the surveys and other testimony in the cause, situated in the interlock caused by the interference of the bounds of Harvey’s patent for twenty-one hundred acres, granted on the 11th day of June 1787, with those of Ross’ patent for twelve hundred' acres, granted on the 12th day of December 1785; and is -therefore clearly embraced by the terms of the decree pronounced on the 10th of February 1807, by the County court of Botetourt in the case of Harvey v. Ross. That decree has never been reversed, and, so far as the proofs in the cause show, its force and validity were never denied by Ross in his life time. Indeed no question as to the correctness of the decree or as to the right of the County court of Botetourt to make it, ever seems to have been made before the commencement of this suit. On the contrary, in the deed of the 12th August 1834, made by R. A. Ross, executor and devisee, and Myers and others also devisees, of David Ross, and also in the deed of William Ross and wife of the 16th July *1834, to the Catawba iron works company, (under whom the appellant claims,) conveying the several interests of the parties in the twelve hundred acre tract, express reference is had to the decree : And each deed purports to convey only so much of the tract as was not decreed to Robert Harve3r by said decree.

On the same day on which R. A. Ross, executor, &c., and others executed the deed above mentioned, to wit: the 12th August 1834, they also made another deed to the Catawba iron works company, conveying with special warranty, “all their lands on the Catawba creek, &c., being the lands which David Ross had title to at his death, and of which his heirs or executors were seized at his death,” &c. In the description of the lands intended to be conveyed is embraced ! ‘ four hundred and eighty acres surve3red March 25th, 1785.”

A patent founded on this survey, was issued to Ross on the 13th of May 1786. The interlock before mentioned, as appears from the survey and other proofs in the case, is also covered by this patent. No mention, however, of this patent is made in the decree of 1807; nor in any of the proceedings in the suit in the County court of Bote-tourt.

Still as the decree directed Ross to convey to Harvey all the lands comprehended within the twenty-one hundred acre patent, that were also comprehended in the twelve hundred acre patent, it is difficult to conceive how he could ever have made any opposition to the decree, or to any rights claimed under it, by showing that he held at the time the decree was rendered, another patent covering the interlock, subsequent in date and consequently necessarily inferior as an evidence of title, to the one which the court had declared insufficient to protect him against Harvey’s superior equ^. The decree directed the interlock to be conveyed and w'hatever effect the decree had to deprive *Ross of, or render inoperative, the title he had disclosed and relied on, a fortiori, it had in respect to a younger and inferior title which he had not thought proper to disclose.

The two deeds of the 12th August 1834 made between the same parties and co-temporaneous in date, must be regarded as parts of one transaction, and as constituting in law one entire deed. Though therefore the deed in which the four hundred and eighty acre survey is conveyed makes no exception of the part thereof which was embraced within the bounds of the twenty-one hundred acre patent; yet as the deed conve3Ting the twelve hundred acre tract does make the exception of it in excepting all which had been decreed to be conveyed to Harvey, the effect of the two deeds taken together, is to except out of the grants, in each, the land in question, as fully as if the exception had been expressed in terms, in each deed.

It is in proof that Harvey took possession of a portion of his tract of twenty-one hundred acres as early as in the year 1805, and that he continued to occupy, cultivate and otherwise enjoy it as owner till his death in 1831: And this possession has been continued by his representatives ever since. It is also proved that in the years 1828 and 1829 he obtained ore from the land in question for the purpose of operating his furnace. Apart from this latter proof, the occupation of a portion of his tract by Harvey and those claiming under him, and the continued use and enjoyment thereof, accompanied by the notice which his suit in th'e County court of Botetourt gave of the extent of his claim, constituted, in the absence of any proof of an adversary possession by Ross and those claiming under him, of the portion of land in dispute, an adversary possession of all the land within the limits of his patent. And this possession, without calling in the aid of any presumption that Ross had executed a *deed for the land which the decree had directed him to convey, had ripened into a full and perfect title long before the year 1836, when the Catawba iron works company commenced converting into coal, wood upon a portion of the interlock. Taylor v. Burnsides, 1 Gratt. 165; Overton’s heirs v. Davisson, Ibid. 211.

This temporary possession by the company for the purpose above mentioned, commenced in 1836 and abandoned in 1837 or 1838, could not operate to disseize Harvey’s representatives of the land in question. Pasley v. English, 5 Gratt. 141. When therefore the deed of trust of the 14th August 1840 was executed by the company, they had no possession actual or constructive of the ore bank in controversy. But the said bank was in the exclusive adversary possession of the appellees claiming and holding it by a perfect title. The deed of the company therefore could convey no shadow of right to the ore bank in a dispute as against the appellees. The only effect it can have on their rights is, on the contrary, one of a beneficial character; in as much as it served to notify all claiming under it that the right to the land in controversy was never in the company, but resided with the Harveys: The description of the land intended to be conveyed, expressly referring to the deed of the Rosses, heretofore mentioned, in which the exception in favor of Harvey is made. The deed from Francis T. Anderson and A. P. Rsk-ridge, commissioners, &c., of the 10th December 1847, has a like reference to the deed executed by R. A. Ross, &c., for the twelve hundred acres: And though the deed from Grattan and Triplett, &c., the purchasers at the commissioners’ sale, to the appellant and John T. and William N. Anderson, has no such reference; yet it has a reference to the deed executed by the commissioners and also to the decree under which they sold.

*1 think it is clear that, at the time of the alleged trespass on the ore bank by the appellant, the appellees must be regarded as in possession of it with a clear and incontestible title. They might have instituted their action of trespass against the appellant; but were they bound to do so before, or instead of applying to a court of equity to restrain the appellant from committing further trespasses on the property in dispute? Were they bound to litigate and discuss in a court of law rights which had not only been adjudicated as far back as 1807, but which had been solemnly recognized in the conveyances to which the appellant must necessarily refer as the sources of any title which he could assert? I think not. The practice of courts of equity of interfering in such cases by way of injunction, is one comparatively of recent origin; but the jurisdiction is now fully recognized and well established by cases both in England and America. Mitchell v. Dors, 6 Ves. R. 147; Hanson v. Gardner, 7 Ves. R. 305; Thomas v. Oakley, 18 Ves. R. 184; 3 Daniel’s Ch. Pr. 1852-3; Stevens v. Beekman, 1 John. Ch. R. 318; Jerome v. Ross, 7 John. Ch. R. 315; Smith v. Pettingill, 15 Verm. R. 84.

The land upon which the trespass is alleged to be committed is proved to be of little or no value except for the iron .ore found on it, which is proved to be of an excellent quality. The trespass is one which goes to the change of the very substance of the inheritance, to the destruction of all that gives value to it. The fact proved by the appellant that the value of the ore per load could be readily estimated, does not deprive a court of equity of its rights to interfere in the case by way of injunction. The same might be shown in most cases of the. kind. The products of most mines have a value already fixed or easy of ascertainment by proof; yet it was in prevention of like trespasses to this very species of property, mines of ore, coal, &c., that the ^jurisdiction in question had its origin, and still continues to be most frequently exercised.

I see no error in the decree of the Circuit court, and think it should be affirmed.

AEEEN, MONCURE and EEE, Js., concurred in the opinion of Daniel, J.

SAMUEES, J., dissented.

Decree. affirmed.  