The subject of adverse possession is attended by such mystery that one might think it traceable to the druidic rather than late medieval period of English history. Existence of this mystery, needless as it may be, makes it worthwhile for any article on adverse possession to commence by establishing some basic concepts. Foremost among these is that, as understood today, adverse possession of another's land for the period of the statute limiting his right to recover it not only bars his remedy but creates in the disseisor an original title in fee simple. Thus, adverse possession gives the wrongful possessor both a defense and a cause of action. Implicit in what has been said is another concept. The doctrine of adverse possession breaks down into two elements: a statutory limitation on actions to recover land and the principle, usually supplied by judicial decision, that the statutes are run only by possession that is "adverse" to the true owner. Most questions are concerned with whether certain acts on or with respect to another's land are "adverse." These questions are tested by reference to the defining formula for "adverse," which usually runs "actual, open, notorious, exclusive, continuous, and hostile." The incantation varies from state to state and from case to case within a given state, apparently with equal magical power. Some opinions add the element "claim of right" or "claim of title." Occasionally, after they have said everything else, courts have added "adverse"; it hardly can be denied that this closes whatever gaps an already redundant definition may have left. Considering now some characteristics of minerals, no attempt will be made to list all the methods by which ownership of minerals may be severed from ownership of the surface nor to explore the legal problems attendant upon severance except as they may directly relate to adverse possession. Suffice it to say, the title to minerals may be severed, certainly by grant or exception in a deed, and also by a contract of sale or, at least in states where is it regarded as a corporeal estate, by a mineral lease. Once there has been a severance, surface and minerals become separate estates, as distinct as different parcels of land, as some cases put it. The term "minerals" includes not only solid substances like coal, stone, clay and ores, but also oil and gas. Whether minerals are severed or not, the general principles of the law of adverse possession are applied, just as if minerals were not involved. In this article these general principles are not the focus of attention but will be stated and used as needed, though secondary authorities will be cited for them. The problems of primary interest here arise, not from the existence or quality of the principles, but from their application in light of the peculiar nature of minerals and mineral interests. In analyzing these problems, the principal distinction which must be made is whether minerals are severed or unsevered; this dichotomy is the framework for what follows.
William B. Stoebuck,
Adverse Possession of Severable Minerals,
W. Va. L. Rev.
Available at: https://researchrepository.wvu.edu/wvlr/vol68/iss3/4