In such circumstances, when dealing with two separate and distinct titles to the same property, as here, the Court should acknowledge the superiority of the title of those obtaining interests by the earliest recorded instruments. Pollard v. Simpson, 240 Ala. 401, 199 So. 560 (1941). In that case, the Court was faced with two conflicting titles, one commencing in 1886 and showing title to the minerals involved in the suit, and another commencing four years later, in 1890, and reflecting a claim to ownership in the surface and the mineral estate.
When title to personal property is denied and is held adversely to rightful owner, the statute of limitations begins to run from that date and is barred in six years. Code, Tit. 7, § 21. Where evidence is by depositions, no part ore tenus before the court, the decree is not entitled to weight on appeal. Code, Tit. 3, § 17; Pollard v. Simpson, 240 Ala. 401, 199 So. 560. Bowers, Dixon Dunn, of Birmingham, for appellee.
40 C.J. 969; 29 A.L.R. 586; 146 A.L.R. 880; Adams v. Riddle, 233 Ala. 96, 170 So. 343, 107 A.L.R. 657. Where there has been severance of the mineral estate in land by true owner of both estates, the possession of surface estate is not adverse possession of mineral estate. Mere non-user of mineral estate will not affect owner's title, and to affect which right by adverse possession owner must be disseized. Hooper v. Bankhead, 171 Ala. 626, 54 So. 549; Pollard v. Simpson, 240 Ala. 401, 199 So. 560; Ezzell v. Richardson, 226 Ala. 345, 147 So. 132; Franklin v. Gwinn, 203 Ala. 673, 85 So. 7; Driver v., Fitzpatrick, 209 Ala. 34, 95 So. 466; Birmingham Fuel Co. v. Boshell, 190 Ala. 597, 67 So. 403; 13 A.L.R. 372; 67 A.L.R. 1441; 93 A.L.R. 1232; Clements v. Texas Co., Tex.Civ.App., 273 S.W. 993; Scott v. Laws, 185 Ky. 440, 215 S.W. 81, 13 A.L.R. 369; Kiser v. McLean, 67 W. Va. 294, 67 S.E. 725, 140 Am.St.Rep. 948; Barker v. Campbell-Ratcliff Land Co., 64 Okl. 249, 167 P. 468, L.R.A. 1918A, 487; Claybrooke v. Barnes, 180 Ark. 678, 22 S.W.2d 390, 67 A.L.R. 1436. For right to be divested under doctrine of prescription and repose, there must be non-user and enjoyment thereof adverse to owner, under claim of right, exclusive, continuous and uninterrupted and with actual or presumed knowledge of owner. Malone v. Jones, 211 Ala. 461, 100 So. 831; Steele v. Sullivan, 70 Ala. 589; Gage Co. v. M. O. R. Co., 84 Ala. 224, 4 So. 415.
In such circumstances, when dealing with two separate and distinct titles to the same property, as here, the Court should acknowledge the superiority of the title of those obtaining interests by the earliest recorded instruments. Pollard v. Simpson, 240 Ala. 401, 199 So. 560 (1941)."
But there must be something evidencing possession in the interval which connects the operations when resumed with those which have gone before, and to distinguish such possession from a series of repeated acts of trespass.' " This language was cited in Pollard v. Simpson, 240 Ala. 401, 199 So. 560 (1941). In Pollard, this court held that to effect adverse possession of minerals after severance of title from the surface, the adverse claimant must do some act or acts evincing a permanency of occupation and use, as distinguished from acts merely occasional desultory or temporary — acts suitable to the enjoyment and appropriation of the minerals so claimed and hostile to the rights of the owner.
Section 372(1), Title 7, Code 1940, 1947 Cum. Pocket Part, Vol. Two, p. 44, provides in substance that in cases such as this it is unnecessary that objection be made to any testimony or evidence which may be offered by either party and on the consideration of such cases the trial court should consider only such testimony as is relevant, material, competent and legal, and on appeal this court shall consider only such testimony as is relevant, material, competent and legal, unless specific objection was interposed and a ruling made on such objection by the trial court. Pollard v. Simpson, 240 Ala. 401, 199 So. 560. Section 372(1), Title 7, Code 1940, is practically in the language of Act No. 101, approved June 8, 1943, General Acts 1943, p. 105.
When causes are thus tried in the lower court, it is the duty of this Court on appeal to sit in judgment upon the evidence. Title 13, section 17, Code of 1940; Wood v. Foster, 229 Ala. 430, 157 So. 863; Pollard v. Simpson, 240 Ala. 401, 199 So. 560; Cryar v. Cryar, 243 Ala. 318, 10 So.2d 11; Wells v. Wells, 243 Ala. 533, 10 So.2d 853. The testimony offered by complainants tending to establish the alleged parol agreement was objected to because the agreement was void under the statute of frauds.
When evidence is taken thus in the court below, a decree rendered thereon is here reviewed without the usual presumption in favor of its correctness. Section 17, Title 13, Code of 1940; Wood v. Foster, 229 Ala. 430, 157 So. 863; Pollard v. Simpson, 240 Ala. 401, 199 So. 560; Chapman v. Cothran, 245 Ala. 468, 17 So.2d 677; Harvey v. Phillips, 247 Ala. 134, 22 So.2d 900. On a bill for divorce, the charge of adultery may be proved by circumstantial evidence, but the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion that the act of adultery has been committed.
When cases are submitted for final decree in the court below on evidence taken by depositions, the decree there rendered is reviewable here without any presumption in favor of its correctness. Section 17, Title 13, Code of 1940; Wood v. Foster. 229 Ala. 430, 157 So. 863: Pollard, Receiver v. Simpson, 240 Ala. 401, 199 So. 560; Chapman v. Cothran, 245 Ala. 468, 17 So.2d 677; Harvey v. Phillips, 247 Ala. 134, 22 So.2d 900. We have carefully considered the legal evidence.
When causes are thus tried in the lower court, it is the duty of this Court to sit in judgment upon the evidence. Title 13, section 17, Code of 1940; Wood v. Foster, 229 Ala. 430, 157 So. 863; Pollard v. Simpson, 240 Ala. 401, 199 So. 560; Cryar v. Cryar, 243 Ala. 318, 10 So.2d 11; Wells v. Wells, 243 Ala. 533, 10 So.2d 853; Cochran v. Cochran, 25 So.2d 693. This duty we have performed, and have carefully considered the entire evidence in conference. It would serve no good purpose to here set forth the evidence in detail.