CLOPTON, J.-
— The parties having waived a decision of all the questions involved, other than the right and title to the gravel in controversy, and as the judgment is to be affirmed or reversed as we may find the right to be in the plaintiff or defendant, we shall confine our consideration to this question.
The right of the defendant is founded on a deed made August 30, 1873, by Lary and wife, who formerly owned the land on which the gravel is located, and from whom both parties derive title, to the South and North Alabama Railroad Company. In consideration of one hundred dollars, the erection of a depot, and running the railroad on and along the lands of the grantor, which are described by the numbers of the government survey, the grantors bargain, sell, and convey to the railroad company, “a strip, tract, or parcel of land, fifty feet wide on each side of the center line of their railroad; also, a strip or tract of land sixty feet wide, parallel with said railroad for six hundred feet, beginning three hundred feet south of public road at the station, and running north; also, two acres of gravel on said land, nearest said railroad, as at present located through said tract.” The gravel in question is on the land described in the deed as owned by the grantor, and the nearest to the railroad, commencing fifteen or twenty feet from a line fifty feet from the center of the railroad track.
Land, in its broadest signification, includes not only the surface of the earth, but the mines, quarries, and every thing under it; and whoever has the fee in the surface, presumptively owns every thing of a permanent nature, under or over it. Notwithstanding, it is competent for the owner to convey the mines or quarries by separate grant, vesting in one person a freehold in the soil, and in another a freehold in the mines or quarries, and to sever the ownership of the surface from the ownership of that which is under it. There may exist a double [564]*564ownership, or two freeholds in the same parcel of land. — -2 Wash, on Real Prop. 375. This occurs usually in those States where minerals abound, and, no doubt, exists to a considerable extent in this State.
The" controverted questions, that have generally arisen, have been as to the character of the right or estate granted — whether a license, or a right to dig and carry away in the nature of an easement, or a freehold in the mines. In Riddle v. Brown, 20 Ala. 412, where it is recognized that a distinct title to the surface may be in one person, and to that which is underneath in another, and that mines may form a distinct possession and different inheritance from the surface, it is said: “ There may be a right to dig ore in the mines of another, as distinct from the ownership of the mines, as that may be from the ownership of the surface. This right,to dig ore in the mines of another, if it be to one and his heirs, is an incorporeal hereditament. . . . It is a permanent interest in the lands of another, to which a legal title can only pass by deed.” The right, existing in parol, was held to be a license and revocable, not being coupled with an interest in the land. Had it been reduced to writing, conformably to the statute of frauds, the court would have held that it created a fee simple in the easement. In 2 Wash, on Real Prop. 376, the author, speaking of what the owner may do, observes: “Thus, he may grant to another the entire body of minerals within his land, retaining only his property in the surface, whereby he would create an independent freehold and inheritance in his grantee; or he may grant a right or privilege to take minerals from his land, without parting with the fee in any part of the same, and may still retain his ownership in all the minerals contained therein which shall not have been taken and appropriated by his grantee. In the latter case, he only creates and grants an easement to his grantee, — a mere incorporeal hereditament.”
In Pennsylvania, the character of such grants has arisen more .frequently, and has been more thoroughly considered than in other States, unless in California, where they have made unto themselves laws regulating mines and mining. In Caldwell v. Fulton, 31 Penn. St. 487, it was held that a conveyance of the full right, title, and privilege of digging and taking away stone-coal to any extent, under any of the land of the grantor, is a grant of land, and not an incorporeal hereditament. Livery of seizin not being necessary, and land being transferable by deed, the distinguishing characteristics, in determining the estate created, to which the inquiry should be directed, are: whether the grant is restrictive, containing reservations and limitations on the exercise and control of the right; or whether it is an exclusive right to minerals in place, with absolute dominion- and disposi[565]*565tion. If the former, it is an incorporeal hereditament, the owner of the surface retaining his ownership in all minerals not actually taken and carried away; and if the latter, a corporeal hereditament — a freehold — is created, which is not forfeited by non-user. Applying these tests to the deed under consideration, it created, if operative as a conveyance, in the South and North Alabama Railroad Company, a freehold estate in the gravel.
The deed does not describe the two acres of gravel, with sufficent definiteness and certainty to operate a legal conveyance. If it be said that the point nearest the railroad is given as the point of beginning, no criteria are furnished, by which to determine in what directions, and how far in each direction, the lines shall be run, so as to include two acres of gravel. Neither the width nor the length of the bed of gravel is given, nor whether the entire bed contains only the quantity intended to be conveyed. Had a definite starting-point and the base line been named, the lines would then have been run so as to include two acres of gravel in superficial extent, and as nearly square as practicable.— Wilkinson v. Roper, 74 Ala. 140. The cases of Morris v. Stuart (1 Iowa, 375), and Santa Cla. Min. Asso. v. Quick. Min. Co. (8 Sawyer, 330), to which we have been cited, were bills in equity, either for a specific performance, or to control the legal title.
In Hunt v. Freeman, 63 Ala. 335, it was held, that a description of lands in a mortgage of about one thousand and fifty acres, the boundaries of three sides being stated, is too vague, no fact being stated from which the boundary of the fourth side could be determined. It was also held, that the description was not so indefinite and uncertain as to affect the validity of the mortgage, since it could be rendered certain, and identify the lands intended to be conveyed. While the conveyance to the company is not sufficient as a grant, the uncertainty of description is not so great as to destroy its .efficacy for all purposes. If reasonable, some effect should be given to it; and being founded on a valuable consideration, it may.be sustained as an agreement to convey, which, if fair and just, a court of equity will specifically enforce. — Pollard v. Maddox, 28 Ala. 321; Blythe v. Margin, 68 Ala. 370; Meyer v. Mitchell, 75 Ala. 475.
The right of the plaintiff is founded on a deed made, November 22,1881, by Lary and wife, to fourteen acres, including the gravel in question, in consideration of one hundred and thirty dollars; andón a corrected conveyance made January 26, 1884.
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CLOPTON, J.-
— The parties having waived a decision of all the questions involved, other than the right and title to the gravel in controversy, and as the judgment is to be affirmed or reversed as we may find the right to be in the plaintiff or defendant, we shall confine our consideration to this question.
The right of the defendant is founded on a deed made August 30, 1873, by Lary and wife, who formerly owned the land on which the gravel is located, and from whom both parties derive title, to the South and North Alabama Railroad Company. In consideration of one hundred dollars, the erection of a depot, and running the railroad on and along the lands of the grantor, which are described by the numbers of the government survey, the grantors bargain, sell, and convey to the railroad company, “a strip, tract, or parcel of land, fifty feet wide on each side of the center line of their railroad; also, a strip or tract of land sixty feet wide, parallel with said railroad for six hundred feet, beginning three hundred feet south of public road at the station, and running north; also, two acres of gravel on said land, nearest said railroad, as at present located through said tract.” The gravel in question is on the land described in the deed as owned by the grantor, and the nearest to the railroad, commencing fifteen or twenty feet from a line fifty feet from the center of the railroad track.
Land, in its broadest signification, includes not only the surface of the earth, but the mines, quarries, and every thing under it; and whoever has the fee in the surface, presumptively owns every thing of a permanent nature, under or over it. Notwithstanding, it is competent for the owner to convey the mines or quarries by separate grant, vesting in one person a freehold in the soil, and in another a freehold in the mines or quarries, and to sever the ownership of the surface from the ownership of that which is under it. There may exist a double [564]*564ownership, or two freeholds in the same parcel of land. — -2 Wash, on Real Prop. 375. This occurs usually in those States where minerals abound, and, no doubt, exists to a considerable extent in this State.
The" controverted questions, that have generally arisen, have been as to the character of the right or estate granted — whether a license, or a right to dig and carry away in the nature of an easement, or a freehold in the mines. In Riddle v. Brown, 20 Ala. 412, where it is recognized that a distinct title to the surface may be in one person, and to that which is underneath in another, and that mines may form a distinct possession and different inheritance from the surface, it is said: “ There may be a right to dig ore in the mines of another, as distinct from the ownership of the mines, as that may be from the ownership of the surface. This right,to dig ore in the mines of another, if it be to one and his heirs, is an incorporeal hereditament. . . . It is a permanent interest in the lands of another, to which a legal title can only pass by deed.” The right, existing in parol, was held to be a license and revocable, not being coupled with an interest in the land. Had it been reduced to writing, conformably to the statute of frauds, the court would have held that it created a fee simple in the easement. In 2 Wash, on Real Prop. 376, the author, speaking of what the owner may do, observes: “Thus, he may grant to another the entire body of minerals within his land, retaining only his property in the surface, whereby he would create an independent freehold and inheritance in his grantee; or he may grant a right or privilege to take minerals from his land, without parting with the fee in any part of the same, and may still retain his ownership in all the minerals contained therein which shall not have been taken and appropriated by his grantee. In the latter case, he only creates and grants an easement to his grantee, — a mere incorporeal hereditament.”
In Pennsylvania, the character of such grants has arisen more .frequently, and has been more thoroughly considered than in other States, unless in California, where they have made unto themselves laws regulating mines and mining. In Caldwell v. Fulton, 31 Penn. St. 487, it was held that a conveyance of the full right, title, and privilege of digging and taking away stone-coal to any extent, under any of the land of the grantor, is a grant of land, and not an incorporeal hereditament. Livery of seizin not being necessary, and land being transferable by deed, the distinguishing characteristics, in determining the estate created, to which the inquiry should be directed, are: whether the grant is restrictive, containing reservations and limitations on the exercise and control of the right; or whether it is an exclusive right to minerals in place, with absolute dominion- and disposi[565]*565tion. If the former, it is an incorporeal hereditament, the owner of the surface retaining his ownership in all minerals not actually taken and carried away; and if the latter, a corporeal hereditament — a freehold — is created, which is not forfeited by non-user. Applying these tests to the deed under consideration, it created, if operative as a conveyance, in the South and North Alabama Railroad Company, a freehold estate in the gravel.
The deed does not describe the two acres of gravel, with sufficent definiteness and certainty to operate a legal conveyance. If it be said that the point nearest the railroad is given as the point of beginning, no criteria are furnished, by which to determine in what directions, and how far in each direction, the lines shall be run, so as to include two acres of gravel. Neither the width nor the length of the bed of gravel is given, nor whether the entire bed contains only the quantity intended to be conveyed. Had a definite starting-point and the base line been named, the lines would then have been run so as to include two acres of gravel in superficial extent, and as nearly square as practicable.— Wilkinson v. Roper, 74 Ala. 140. The cases of Morris v. Stuart (1 Iowa, 375), and Santa Cla. Min. Asso. v. Quick. Min. Co. (8 Sawyer, 330), to which we have been cited, were bills in equity, either for a specific performance, or to control the legal title.
In Hunt v. Freeman, 63 Ala. 335, it was held, that a description of lands in a mortgage of about one thousand and fifty acres, the boundaries of three sides being stated, is too vague, no fact being stated from which the boundary of the fourth side could be determined. It was also held, that the description was not so indefinite and uncertain as to affect the validity of the mortgage, since it could be rendered certain, and identify the lands intended to be conveyed. While the conveyance to the company is not sufficient as a grant, the uncertainty of description is not so great as to destroy its .efficacy for all purposes. If reasonable, some effect should be given to it; and being founded on a valuable consideration, it may.be sustained as an agreement to convey, which, if fair and just, a court of equity will specifically enforce. — Pollard v. Maddox, 28 Ala. 321; Blythe v. Margin, 68 Ala. 370; Meyer v. Mitchell, 75 Ala. 475.
The right of the plaintiff is founded on a deed made, November 22,1881, by Lary and wife, to fourteen acres, including the gravel in question, in consideration of one hundred and thirty dollars; andón a corrected conveyance made January 26, 1884. The first deed to the plaintiff is also inoperative as a conveyance, because of vagueness and uncertainty in the description of the subject-matter — the lines, courses, and bound[566]*566aries being left in blank. The plaintiff paid the purchase-money, and was let into possession ; and this instrument, as the paper title to the railroad company, and on the same principles, may be regarded as an agreement to convey.
Neither party had actual possession of the gravel, until the spring of 1883¡ when the defendant constructed a side-track, took possession, and carried away the gravel, for which the action is brought. While actual occupancy of a part of a tract of land, into the possession of which a party had entered under claim and color of title, draws constructive possession of the entire tract, where the color of title is inoperative as a conveyance, by reason of vagueness and uncertainty in the description and boundaries of the tract, the possession is limited to the pedis possessio. — Shackleford v. Bailey, 35 Ill. 587; Livingston v. Penn. Iron Works, 9 Wend. 517; Humphries v. Huffman, 33 Ohio St. 404; Ege v. Medler, 82 Penn. St. 87. The subsequent deed of January, 1884, which was made to correct the errors and uncertainties in the first deed, relates back to, and takes effect from the execution of the first deed, for many purposes,' as between the immediate parties; but, as to the rights and equities of third persons, takes effect only from the date of its execution.— Chapman v. Fields, 70 Ala. 403. Before the plaintiff obtained the legal estate, she had notice of the prior equity of the railroad company.
We have, then, the case of equal equities, at the time the gravel was taken — of a senior and junior equitable estate; ' equal, in that they originated in the same way, by contract of purchase from a common vendor ; and both equitable, because of vagueness and uncertainty in the instrument purporting to convey the title, — both vendees acting in good faith, and paying a valuable consideration. In such case, the rule applies, that the party who has the prior equity in point of time, is entitled to the like priority in point of right. Qui prior est in tempore, potior est in jure.
The acquisition of the legal estate by the plaintiff, after notice of the equity of the railroad company, can not avail to defeat or override such equity. Whatever may be the conflict of judicial opinion, and however irreconcilable, the rule is settled in this State — has become a rule of property, which we are not at liberty to disturb — that a court of equity “ will not permit the party, having the subsequent equity, to protect himself by obtaining a conveyance of the legal title, after he has either actual or constructive notice of the prior equity.” Flash v. Ravisies, 32 Ala. 451. In 2 Pom, ou Eq. Jur. (§ 756), the author illustrates the rule as follows: “If an owner of land gives an agreement to convey to A., who pays all, or part of the price, .and afterwards gives a second agree[567]*567ment to convey to B., who enters into the contract, and pays all, or part of the price, and without any notice of the prior claim of A., clearly B. would not have obtained an equitable advantage from the fact of his contract and payment without notice; A.’s interest would be of the same character and extent, and his priority of time would give him priority of right. To say that B., being thus inferior in equitable right, may, upon receiving notice of A.’s contract, obtain a conveyance from the owner, and thus establish a precedence over A., is to misapply the doctrine of bona fide, purchaser, and to ignore a familiar principle of equity, that one who acquires a title with notice of a prior equity, takes it subject to that equity.”
The gravel was taken from the place designated by the vendor prior to and at the time of the execution of the deed, and understood by the parties as the two acres of gravel intended to be conveyed. The legal title was in their common vendor, and the equities of the parties were equal. The South and North AlabamaIiailroad Company, under whom the defendant claims, having the senior equity, had the superior right to the gravel, on which they can successfully defend an action of trover. On the undisputed facts, the affirmative charge in favor of the defendant should have been given.
Since the execution of the conveyance of January, 188J, the legal title has been, and is in the plaintiff; the equitable estate, in the defendant.
Reversed and remanded. -