
    S. and L. Butler vs. Phelps and others.
    The non-claim by a grantee of an interest in land, 'for a period of thirty-four years, after acquiring title, is, in an action against the heir of the grantor, no bar to a recovery ; nor does the exclusive possession of the land by the grantor and his heirs for that length of time aíford per se the presumption of a reconveyance or surrender oí the interest conveyed, as long as the nature of the possession is consistent with the rights of the grantee.
    Where one tenant in common has exercised a right over the property held in common, inconsistent with the right of his co-tenant, for more than twenty years, an actual ouster of the co-tenant may be presumed for the purpose of barring the right by adverse possession; but no such presumption can arise where the right exercised is consistent with the right of the co-tenant, 
    
    
      Error from the supreme court. Phelps and three others brought an ac tion of ejectment against Sally Butler, the widow, and Lyman Butler, the son and heir at law of Ashbel Butler, to recover two thirds of certain ore beds. The plaintiffs claimed to recover under a deed bearing date 15th April, 1796, made and executed between Ashbel Butler as party of the first part, and J. Phelps and A. Blanchard as parties of the second part: by which deed, Butler, in consideration that Phelps and Blanchard had labored and expended their time and property in discovering iron ore upon his land, granted, bargained and conveyed to them, and to their heirs and assigns for ever, two thirds of the ore in value; whether an iron or any other metal contained upon or within the earth, upon a certain lot in the town of Whitestoion, then in the county of Herkimer, containing 100 acres of land; with the privilege of ingress, egress, and regress at all times, for the purpose of discovering, digging and transporting of ore. The deed contained mutual covenants that Phelps and Blanchard should pay to Butler or his heirs one third the value of the ore in the ground, which should be dug by them or their assigns upon the land described in the deed, and that Butler would pay to Phelps and Blanchard, or to their heirs, two thirds of the value of the ore in the ground which should be dug by him or his assigns; there [643] was also a covenant that Phelps and Blanchard should do no unnecessary damage to the crops or soil, and should put up fences taken down by them in the same order in which they were found, and a covenant as to settlements, to take place between the parties from time to time, in relation to the ore to be dug. The deed was mutually executed by the parties. Blanchard died, leaving two children, who united with Phelps as plaintiffs in the action of ejectment, which was commenced in July, 1832. Ashbel Butler, the grantor, died in 18.29. No claim or right to enter upon the premises and dig for ore was ever asserted by Blanchard in his life time, or by Phelps, until after the death of Ashbel Butler. After his death, viz. in 1830, Phelps and the heirs of Blanchard asked permission of Lyman Butler to enter upon the premises and dig and carry away ore, which was refused. Ashbel Butler, until his death, occupied the 100 acres for agricultural purposes; he did not open the ore beds, nor were they opened or used until after his death. About four years previous to his death, he was heard to say that he had given a lease of the ore to Phelps and Blanchard, and that he should like to get up the lease, that it worried his mind, and that he would give a trifle, the witness thought that he mentioned $20, to any one who would get it up for him. Upon this evidence the plaintiffs rested. For the purpose of showing that the deed of 1796 had been surrendered, or the rights thereby conferred released, the defendants offered to prove, that about the year 1799 a forge was erected within a few miles of the premises in question, in which Phelps was part owner, which was supplied with ore from beds in the vicinity of the premises in question; that in 1808 another furnace was erected, in which Phelps was and continued to be a large stockholder, which was also supplied in part with ore from the beds in the vicinity of the premises in question, and also that other furnaces were supplied with ore from the same beds; and that until 1830, upwards of thirty-four years since the date of the deed from Ashbel Butler, no claim had been interposed by the plaintiffs. To the evidence thus offered to be given, the counsel for the plaintiffs ob-[644] jected as irrelevant—which objection was sustained by the circuit judge. The counsel for the defendants asked the judge to charge the jury that by the terms of the deed, and under the circumstances of the case, they would be warranted to presume that the deed had been surrendered or canceled, and the agreement between the parties abandoned.. The judge refused so to charge; and on the contrary instructed the jury to find a verdict for the plaintiffs. The jury found accordingly. The defendants applied to the supreme court for a new trial, which was denied. The reasons of the court are contained in the following opinion, which was delivered by Chief Justice Savage:
    “There are but two questions which can arise in this case, 1. Whether the instrument in writing, executed by the parties, conveyed to Phelps and Blanchard any interest in the soil? 2. Whether that interest was lost by the lapse of time. Both questions must be determined by the instrument itself. Butler conveys to Phelps and Blanchard, their heirs and assigns forever, two thirds of the ore upon or within the soil of the lot. This decides the first point. The conveyance of two thirds and the reservation of one third constitutes the three parties named, tenants in common. No act has been done until very recently by which the defendants denied or disputed the right of the plaintiffs; and Butler, shortly before his death, spoke of the instrument in question as an existing interest in the other parties, which he was anxious to extinguish. The possession of one tenant in common is the possession of all, unless something is done amounting to an ouster. I think the plaintiffs showed enough to recover.”
    Judgment was accordingly rendered for the plaintiffs. The defendants having excepted to the decisions of the circuit judge, sued out a writ of error. The case was argued in this court by
    
      J. A. Spencer, for the plaintiffs in error,
    -who presentéd and argued the following points:
    
      First. The questions arising on the trial were those of fact, and should have been submitted to the jury. The evidence offered was [645] material to strengthen the presumptions contended for,and should have been admitted and left to the jury (Sackett v. Sackett, 7 Wendell, 94).
    
      Second. After a lapse of 34 years, courts and juries to quiet titles will presume an ouster of tenants in common, so as to give effect to the statute of limitations. So also a release will be presumed ora reconveyance, or surrender or abandonment of the agreement. If the evidence given and offered had been submitted to the jury, they would have been fully warranted in finding a verdict for the defendants (Fairclaim v. Shackleton, 5 Burr, 2604, 8; Eldridge v. Knott, 1 Cowp. 215; Doe v. Prosser, id. 217; Matthew’s Presump. Ev. 196; Loyd v. Gordon, 2 Har. & McHen. 254, 260; Jackson, ex. dem. Bradt v. Whitbeck, 6 Cowen, 132; Clapp v. Bromagham, 9 id. 530).
    
      Third. The possession of one tenant in common is the possession of all, only as to third persons; as between themselves the statute of limitations will run unless there is a distinct recognition of the right of the co-tenant out of possession (Earl of Sussex v. Temple, 1 Ld. Raym. 310, 312).
    
      W. Crafts, for the defendants in error,
    presented and argued the following points:
    
      First. Whenever a right of entry exists, and the interest is tangible, so that possession-can be given, ejectment will lie (9 Johns. R. 298; Jackson v. Buel, 16 id. 184; Jackson v. May, 1 T. R. 358).
    
      Second. The entry in this case is not barred by the lapse of time. A constructive entry is sufficient. The ore beds could not be said to be adversely possessed till the plaintiffs’ right of entry was denied. The deed on its face shows that an immediate working of the ore beds was not contemplated (Clapp v. Bromagham, 9 Cowen, 530; Jackson v. Tibbets, id. 241; 7 Wheat. 60; Bailey v. Jackson, 16 Johns. R. 210; Jackson v. Camp, Cowen 605).
    
      Third. The parties were tenants in common in the ore beds, and the possession of one is the possession of all, until some notorious act of ouster by one of the co-tenants, to the exclusion of the other (Jackson v. Brink, 5 Cowen, 483; Adams on Ejectment, 10, note 2; Jackson v. Creale & [646] Kellogg, 13 Johns. R. 116).
    
      Fourth. The confession of Ashbel Butler, a few years before his death, of the right of the plaintiffs to enter, rebuts any adverse possession, and is an acknowledgment of the right claimed, and repels the presumption of a re lease.
    
      
      
         A conveyance by one co-tenant of the whole estate, is an ouster of his co-tenant and a good foundation for a claim of adverse possession in the grantee. Jackson v. Smith, 13 Johns. 406; Clapp v. Bromagham, 9 Cow. 530; Bogardus v. Trinity Church, 15 Wend. 111. See Northrup v. Wright, 7 Hill, 476.
    
   After advisement the following opinion was delivered:

By the Chancellor. The deed executed by Ashbel Butler, was founded upon a good and valuable consideration expressed upon its face, to wit: that the grantees, at the request and instance of the grantor, had labored and expended their time and property, in discovering ore upon the land of the grantor. There can not be any room for doubt, therefore, that this ivas a valid conveyance of an estate or interest in fee of the undivided two thirds of all the ore beds which were contained within the bounds of the lot described in the deed; together with the servitude, or easement, of a convenient way or passage over the land to the ore beds, whenever such way or passage might be wanted by the grantees, or their heirs or assigns, for the purpose of digging or transporting the ore. As to the extent or value of the consideration mentioned in the deed, or whether it was more or less than the supposed or real value of the right granted, we have no means of knowing; neither is it in any way material to the rights of these parties, as there is no pretence that the conveyance was not fairly obtained. The only question for consideration, therefore, is whether there is anything in the case from which it can be legally presumed that the grantees have re-conveyed or released their right, as tenants in common of these ore beds, to Butler their co-tenant.

There has been no adverse possession whatever in this ease, until the opening of the ore beds a short time since. The claim of the plaintiffs under the deed was made very soon thereafter, and they brought this suit when they found the defendants intended to resist that claim. As the sole [647] and exclusive occupation and use of the farm for agricultural pur poses by the grantor, was perfectly consistent with the rights of the grantees, no presumption of a reconveyance can arise from such exclusive occupation. By the terms of the grant either party had the right to open and work the mines whenever they pleased; paying the other party his or their proportion of the value of the ore raised, after deducting the expense of opening the ore bed and digging and transporting the ore to market; but by the terms of the conveyance neither party was required to do so within any particular time. It is perfectly immaterial, therefore, which party was the original owner of the land within which the ore beds are situated. The cases referred to by the counsel for the plaintiffs in error establish the-principle that where one tenant in common has exercised a right over the property held in common wholly inconsistent with the right of his co-tenant for more than twenty years, an actual ouster of his co-tenant may be presumed for the purpose of barring such right by adverse possession; but no such presumption can arise where the right exercised is perfectly consistent with the right of the co-tenant; for in such a case the possession of one tenant in common is the possession of the other, and there is nothing for the law of presumption to take hold of.

In the case under consideration if either party had opened and worked the ore beds for twenty years without paying to the other party his or their share of the value of the ore in the ground, or otherwise accounting to him or them for the same, or acknowledging the right of the co-tenant, an ouster of the co-tenant or a release of his or their interest in the ore bed might be presumed; but if neither party should think fit to open and work the ore bed, or if one of them should work it exclusively, paying the other his share of the value of the ore dug, or admitting his liability to pay for the same, no such presumption of ouster or of a release could possibly arise; as there would be nothing upon which such a presumption could be founded. The testimony offered by the defendant, to show that a forge and furnace were erected within a few miles of the premises three or four years after the date of the deed, of which forge Phelps was a part owner, and [648] which were supplied with ore from beds in that vicinity, could not have helped the defendant’s case; although it would probably have explained the cause why the ore beds in controversy had not been opened and worked by either party until those which had been already opened and which were probably more convenient had become exhausted or more difficult to work; and the fact that Phelps was part owner of a forge in the neighborhood, and might therefore, at some future time, want ore from the premises in controversy to supply it, would certainly have been a strong circumstance against the presumption that he had released or re-conveyed the right to these ore beds which he had secured to himself by the deed from Butler. But there was nothing in either of the circumstances now alluded to which were offered in evidence on the trial, from which a legal presumption could arise that the grantees in the deed had re-conveyed to the grantor their interest in the ore beds in question.

I can not, therefore, see any reason to question the correctness of the judgment of the court below; and I think it should be affirmed.

On the question being put, Shall this judgment be reversed? all the members of the court, with the exception of two, (nineteen being present,) voted in the negative. Whereupon the judgment of the supreme court was affirmed,.  