Gill v. Fletcher

Citations

• 74 Ohio St. (N.S.) 295

Syllabus

<p>Construction of language in deed — Whether creating reservation ■ or exception from grant — Intention of parties — Conveyance of fee simple estate in lands — Excepting mineral rights— Question of surface and sui-surface rights — Statute of limitations.</p> <p>1. Whether the language used in a deed creates a reservation or exception from the grant depends upon the intention of the parties as evinced by a construction of the- whole instrument in the light of the circumstances of each case.</p> <p>2. Where the owner of a fee simple estate in lands conveys the lands to another in fee simple, reserving one-half of the mineral which may thereafter be found on said land and declaring that the grantee, his heirs and assigns shall have and hold the land and its. appurtenances, “the half of the mineral only excepted,” such conveyance creates an exception to the grant, leaving in the grantor and his heirs a fee simple estate in one-half of the mineral separate and distinct from the estate in the surface and the other half of the mineral conveyed to the grantee.</p> <p>3. Under such a deed the sub-surface rights will not be lost by nonuser, nor by constructive possession under color of recorded deeds which are silent as to the excepted mining rights; but to bar such rights under the statute of limitations the possession must be actual, open, notorious, continuous, exclusive and adverse, shown by overt acts of unequivocal character which clearly indicate an assertion of ownership of the premises to the exclusion of the rights of the real owner.</p>