(141 N.E.) cellor found that Douthit would not be made whole if allowed $5,810 as damages for the fraud practiced, and it appears, from the figures in the report of the special master that the allowance was justified. [6, 7] There were two particular items objected to, one of which was $815, claimed as a credit for money received by Swiney and Douthit in payment of a note which Swiney claimed belonged to him. The note was listed in the inventory as property belonging to the business, and it was not improper to regard it as an estoppel against Swiney. The second item, of $734, was made up of credits on the back of a note given by the firm to Swiney, on which the credits had been erased. It is true that erased credits may be explained, but there was no satisfactory explanation of the erasures in this case. 4. Mines and minerals 55(5)—Construction of deed by parties by acts and conduct considered. Construction by the parties of deed granting underlying coal with right to mine same, with quitclaim of all minerals of every description, by acts and conduct indicating that it was not considered to give title to sand, gravel and limestone on and near the surface, is properly considered. 5. Mines and minerals 49-Acts of ownership held to give title by adverse possession to sand, gravel, and limestone. Where for 20 years the owners of the surface removed sand, gravel, and limestone at any point suiting their convenience, title held acquired by adverse possession. Appeal from Circuit Court, La Salle County; Edgar Eldredge, Judge. Suit by Joseph H. Kinder and others against The judgment of the Appellate Court is the La Salle County Carbon Coal Company affirmed. 1. Deeds 90-Intention to be gathered from whole instrument. The intention of the parties to a deed, or other written instrument, to be given effect unless violative of some rule of law or public policy, is to be gathered from consideration of the whole instrument. 2. Mines and minerals 55(5)—What is in- certainable. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Mineral.] 55(5)-Deed held to grant only "minerals" removable by underground mining. 3. Mines and minerals and others. Decree for complainants, and the named defendant and another appeal, and complainants assign cross-errors to failure to pass on certain claims. Affirmed. Walter Panneck, of La Salle, McDougall & Chapman, of Ottawa, and Clarence T. Morse, of Chicago (Clarence T. Morse, of Chicago, and Clarence B. Chapman, of Ottawa, of counsel), for appellants. Woodward, Hibbs & Pool, of Ottawa, James H. Rennick, of Toulon, and Gerald G. Barry, of Chicago, for appellees. FARMER, C. J. Appellees filed their amended bill in chancery against appellants and other defendants in the circuit court of La Salle county, claiming they were owners of the surface of the land described in the bill, above the coal, and had the right to remove therefrom the sand, gravel, clay, shale, and limestone; that defendants claimed title to the substances mentioned which were under the agricultural surface, and some ofthem had placed clouds on appellees' title. The bill prayed the removal of the clouds and that the title to all the surface above the coal be decreed to be in appellees and their title quieted. The defendants, by their answer, denied appellees were the owners of the sand, gravel, clay, shale, limestone, and other mineral underlying the top soil. The court rendered a decree in favor of the complainants, the appellees. The facts not in dispute are that on March A deed, the granting clause of which con- 25, 1867, James Cowey and wife conveyed to veyed only the underlying coal "together with the Chicago Coal Company "all the bitumiright to mine the same," with a following quit- nous or stone coal, together with the right to claim clause of "all minerals of every descrip- mine the same, underlying" all of the premtion," underlying, made when coal was the ises in controversy and a large amount of only known underlying mineral then having other land. The deed described 1,045 acres, commercial value, though limestone, sand, and gravel were known to be on and near the sur- and, following the grant by legal description, face, held to embrace only minerals removable the habendum contains these words: by mining operations underground, which would "Said party of the first part also hereby not destroy the surface for agriculture. grants, conveys, quitclaims and releases to said For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes party of the second part, its successors and assigns, all the rights in or title to the oil and minerals, of every description, underlying the above and foregoing lots, tracts and parcels of land which he owns or is now possessed of, to have and to hold the same forever." May 17, 1869, Cowey and wife conveyed by warranty deed, for the expressed consideration of $3,195, to James Kinder, 89 acres of the land in controversy, "reserving and excepting to said party of the first part all bituminous or stone coal and other minerals, as well as all petroleum oil, in, upon or underlying said premises above described, together with the right to mine and raise the same." On the same day Cowey and wife conveyed by warranty deed to William Burrell, for the expressed consideration of $3,805, 106 acres of the land in controversy, with the same reservations. The land involved in this litigation is 185 acres of the land conveyed by Cowey to Kinder and Burrell, Kinder died testate in 1883 and devised his land to his children, subject to a life estate in his widow, Ann G. Kinder. Burrell conveyed his land in 1881 to Richard T. Kinder and Timothy Healy. Healy died testate in 1884 and by his will devised his interest in the land to Ann G. Kinder. She died intestate in 1897. After her death all the land was sold under a partition decree in March, 1899, and purchased by appellees, complainants in the bill, who received a deed therefor from the master in chancery. By their bill appellees claimed title by virtue of the deed from Cowey and mesne conveyances, to be the owners of all the surface above the coal, their ownership embracing the agricultural surface, sand, gravel, shale, clay, and limestone. They also claimed title by adverse possession under sections 1 and 6 of the statute of limitations. Defendants to the bill, who are appellants here, by their answer denied appellees were the owners of any part of the land except the agricultural surface. The answer admits the agricultural surface consists of loose loam, shading into clay, sand, and gravel, under which is limestone, shale, and coal, but denies appellees have any interest in the coal and minerals underlying the premises, denies they have been in possession of any of said minerals, and denies they are entitled to any of the relief prayed. The circuit court sustained a demurrer to and dismissed the original bill. That decree was reversed by this court and the cause remanded, with directions to overrule the demurrer. Kinder v. La Salle County Carbon Coal Co., 301 Ill. 362, 133 N. E. 772. After the case was remanded appellees filed their amended bill, the cause was heard on bill and answer, and a decree rendered that the deed from Cowey to the Chicago Coal Company conveyed only ing operations; that the parties to the deed did not intend by it to pass title to any part of the surface; that limestone was a part of the surface and title thereto remained in Cowey; that by his deeds to Kinder and Burrell he intended to convey, and the grantees intended to acquire, all the surface, including limestone. The decree found appellees were owners in fee of the surface and had the right to use and remove the limestone, sand, gravel, clay, and shale, and quieted their title and perpetually enjoined defendants from asserting title. The court made no finding as to appellees' title under either section of the statute of limitations nor as to title to minerals between the limestone and coal. The La Salle County Carbon Coal Company and Frank F. Follett, receiver of the Northern Illinois Coal & Iron Company, have prosecuted this appeal. When the deeds were made by Cowey to the Chicago Coal Company and to Burrell and Kinder, Cowey operated a coal mine just across the Little Vermilion river from the land of appellees, raising the coal by cages. Limestone then had no commercial value, being used principally for foundations of buildings. No limestone was shown to have been taken off appellees' land prior to 1888. Cement was not made of limestone prior to 1874 and but little was manufactured from limestone prior to 1880. Since 1900 it has been used very extensively for the manufacture of Portland cement. From approximately the southeast corner of appellees' land there is a ridge of mostly exposed limestone, running northwesterly across the entire land. The stone dips on each side of the ridge, and on the east side is covered to a depth of about 4 feet in most places. West of the ridge the dip is more abrupt toward the river, and at some places the stone is covered to a depth of approximately 50 or more feet and at other places a less depth, some of it being very near the top. There are about 16 acres of the land in pasture, which cannot be cultivated because of the stone, and about 12 acres along ravines which empty in the Little Vermilion river. which is the west boundary of appellees' land. The limestone at the bluff of the river is from 20 to 40 feet thick and is covered with gravel and sand. The overburden of sand and gravel above the limestone varies in depth in places from 2 to 4 feet. What we have said about the character of the land, limestone, and its overburden we think will serve sufficiently to show that there is no place on the land where it would be prac ticable to remove the limestone by underground methods without destruction of the top soil or agricultural surface. The only practicable way of mining the limestone is by quarrying it from the top. (141 N.E.) made the conveyances, coal, which was then struction of deeds and other written docubeing mined in the vicinity, was the only ments the intention of the parties will be mineral known to underlie the land for given effect, but in ascertaining the intenwhich there was a profitable market; that tion effect must be given to each clause and at the time the conveyances were made the word of the instrument, rejecting nothing as land consisted of loose loam, clay, gravel. surplusage. The intention is to be arrived limestone, shale, sand, and coal; that the at from a consideration of the whole instruland was rough and covered with stone, ment and then given effect, unless to do so sand, gravel, trees, shrubs, and was inter- would violate some rule of law or public sected with ravines; that an exposed ridge of policy. McCoy v. Fahrney, 182 Ill. 60, 55 N. limestone extends from the southeast corner | E. 61; Mittel v. Karl, 133 Ill. 65, 24 N. E. 553, of the land to the northwest corner and in 8 L. R. A. 655; Conway Co. v. City of Chivarious places throughout the premises the cago, 274 Ill. 369, 113 N. E. 703. limestone crops out and is a part of the sur- [2] Appellants argue that stone is a minface; that the limestone forms part of the eral, and the description in the granting surface along practically all the westerly clause of the deed from Cowey to the Chiside of the land; that where it is not ex- cago Coal Company of "the bituminous or posed it is covered with loose loam, sand, stone coal, together with the right to mine gravel, and clay, in which vegetation grows the same," underlying the tracts described, and farm products are raised; that the lime- and the quitclaim clause following, of "the stone strata, the loose loam, sand, gravel, oil and minerals of every description" underclay, and shale superimposed above the lime-lying the tracts of land described, by plain stone are parts of the surface and appellees terms conveys everything within the definiare declared to be the owners. The court states he makes no finding as to title by adverse possession, contemporaneous construction of the deeds, or upon color of title and payment of taxes, nor as to the minerals, if any, lying between the limestone and the coal. tion of minerals, and the effect of the conveyance cannot be limited or qualified by the deeds to Kinder and Burrell or a consideration of the conditions and circumstances at the time of the conveyance. Stone is embraced in the technical definition of mineral. So, also, is the soil itself, as matter is di vegetable, and mineral. In Brady v. Smith, 181 N. Y. 178, 73 N. E.,963, 106 Am. St. Rep. Appellees contend the decree is right in sovided into three general classes; animal, far as it declares them to be the owners of the limestone and the sand, gravel, and clay superimposed thereon, but assign cross-errors on the failure of the court to pass upon their claim of title by adverse possession, and on 531, 2 Ann. Cas. 636, the reservation in the deed of "all mines and minerals" which may be found on the land described, with the right to enter, "dig and carry the same away," was considered and numerous authorthey own the minerals and substances be-ities referred to. The land was largely tween the limestone and the coal. the failure of the court to determine whether This court did not pass on the record title on the former appeal, although that question was presented. What we decided was that title to a mineral stratum may be acquired by adverse possession and may be proved in the same way as title to the surface. As the bill alleged title by adverse possession in addition to record title, we held the trial court should have overruled the demurrer to the bill for that reason. Icovered with limestone and a granite ledge. decided upon the language of the grant or res- [1] Appellants contend that appellees own only the agricultural soil under the record title, while appellees claim to own by the record title everything above the coal; that appellants' title is limited to minerals like coal and oil so located that they can be mined by underground methods without destroying the agricultural surface. Counsel for appellants say the decision of this question depends on the deed from Cowey to the Chicago Coal Company, and argue that by a grant of "minerals of every description," limestone, which "We are of opinion that under the exception is a mineral, passed to Cowey's grantee, the and reservation in question John La Farge did not reserve the right to himself, his heirs and Chicago Coal Company. They insist the lan-assigns forever to the limestone on the premguage of the conveyance is so plain as to admit of no other construction. In the con ises conveyed and to conduct open quarrying for the purpose of taking possession thereof." In Armstrong y. Lake Champlain Granite, cultural surface above the limestone and conCo., 147 N. Y. 497, 42 N. E. 186, 49 Am. St. vey to the grantee the limestone, with the Rep. 683, the court considered a conveyance right to remove it, and thereby destroy all of land under which there was a vein of he had reserved. The granting clause of granite. The land was thickly timbered and the deed conveys only the coal, "together the granite was under soil from 4 to 6 feet with right to mine the same," and the quitdeep. The deed granted all the mineral ores claim clause of "all minerals of every deon the premises described, with right to mine scription" underlying the land described canand remove the same; also the right to sink not reasonably be construed to embrace minshafts, sufficient surface for suitable build-erals other than such as could be removed by ings and machinery for raising and mining ores, with right of ingress and egress. The court said it was manifest, without proof, that the granite could only be taken by open quarrying and destruction of the surface, and that a reasonable construction of the grant limited it to minerals obtained by un-face and were of an entirely different naderground working, and as the granite could not be so obtained it did not pass by the deed. To the same effect are White v. Miller, 200 N. Y. 29, 92 N. E. 1065, 140 Am. St. Rep. 618; Rock House Fork Land Co. v. Raleigh Brick & Tile Co., 83 W. Va. 20, 97 S. E. 684, 17 A. L. R. 144. In Northern Pacific Railway Co. v. Soderberg, 188 U. S. 526, 23 Sup. Ct. 365, 47 L. Ed. 575, cited and relied on by appellants, the court said: "The word 'mineral' is used in so many senses, dependent upon the context, that the ordinary definitions of the dictionary throw but little light upon its significance in a given case." That language is quoted substantially in 18 R. C. L. 1094, in discussing the interpretation of grants of minerals, and the author says: "The most reasonable rule is that each case must be decided upon the language of the grant or reservation, the surrounding circumstances, and the intention of the grantor if it can be ascertained." mining operations underground, which would not destroy the surface for agricultural purposes. It is altgether reasonable to presume that Cowey and his grantee had no thought of limestone, sand, and gravel as minerals, They knew those were on or near the sur ture from coal and oil-the minerals specifically mentioned in the deed and which could be mined by underground methods. Two years after Cowey made the deed to the Chicago Coal Company he conveyed the land in controversy to Kinder and Burrell, reserving "all bituminous or stone coal and other minerals, as well as all petroleum oil, in, upon, or underlying said premises above described, together with the right to mine and raise the same." By that reservation the grantor meant and intended to except from the grant what he had conveyed to the Chicago Coal Company, and the words "the right to mine and raise the same" show the reservation was intended to be limited to minerals which could be mined and raised by underground workings without destruction of the surface. [4] It is also proper to consider the construction the parties themselves have placed on the deed. Hollenbeck v. Hollenbeck, 232 Ill. 384, 83 N. E. 926; 18 Corpus Juris, 262. Appellants by their answer claimed they, through conveyances from Cowey, the common source of title, owned the sand, pebbles. clay, shale, and limestone, and that the deeds We think that the reasonable rule, and it to Kinder and Burrell, through whom appelis supported by an abundance of authority. lees claim, conveyed none of those things but [3] When Cowey conveyed to the Chicago conveyed the agricultural surface only, and Coal Company he was engaged in mining appellants claimed they had the right to recoal in the immediate vicinity of appellees' move all the minerals above mentioned, even land, then owned by him. Coal was the only though their removal might injure or destroy known mineral under the surface which had the surface. Appellees and their predecesany commercial value. Cowey knew appel- sors in title during a period of many years lees' land was underlaid with some gravel engaged in the extensive removal of sand and limestone. On parts of the land the and gravel from the land and also quarried limestone was on the surface, and on the rest and sold limestone. Contractors, and the of it was covered with loam, sand and gravel people of the vicinity generally, knew of from a few inches in depth to a depth, in these operations. Appellant the La Salle places, of 50 or 60 feet. Where the loam was County Carbon Coal Company had three of sufficient depth, the land was available coal shafts in the vicinity, and it bought and for cultivation in crops and was productive. received from the land of appellees large Cowey knew the limestone was so near the quantities of sand and gravel. It bought surface that it could not be mined by under- some rock for its mines. The appellees rentground methods without the practical de-ed from the coal company a roadway over its struction of the agricultural surface. To land for some years for the purpose of haulour minds it would be unreasonable to say ing over it sand, gravel, and stone. In 1868 (141 N.E.) Northern Illinois Coal & Iron Company "all, appellees' quarrying and selling limestone, of the bituminous or stone coal, together with sand, and gravel. Appellees had the land in the right to mine the same," underlying the closed by fences and there were two dwelling land, with a quitclaim clause of the "miner- houses on it. No one else assumed to exer als of every description," similar to the deed cise any right to or control over the lime from Cowey to the grantee. In 1873 the stone, sand, and gravel but appellees. They Northern Illinois Coal & Iron Company mort- had for many years done an extensive busigaged its interest in the land in controversy, ness in removing and marketing sand and with other land, to secure $225,000. The gravel, and while apparently the demand for property mortgaged was described as "all of limestone did not justify so extensive operathe bituminous or stone coal, together with tions as for sand and gravel, throughout a all the right to mine the same," underlying period of more than 20 years appellees did the land described. That mortgage was quarry, haul away, and sell limestone from foreclosed shortly after it was executed and the land. Appellants in their reply brief adthe property sold to the trustees of the mit the acts of ownership exercised by apestate of the payee of the mortgage indebted- pellees over the sand and gravel were notoriness, and they conveyed to the La Salle ous, and say it might be held, if the question County Carbon Coal Company in 1883. The were of any importance, that they had acright of appellees and their predecessors in quired title to it by adverse possession. title to the limestone, sand, and gravel was They say, however that would not aid their their claim of title to the limestone by adverse posnever questioned by appellants or predecessors in title until after May, 1919, session, because, they say, the adverse poswhen appellees gave an option on the pur- session of one stratum of mineral cannot give chase of their land to Fritz Wurm for the title to any mineral except the one possessed. Red Star Cement Company for $700 per acre. What is required to constitute title to land Within the last 20 years the manufacture of by adverse possession for 20 years has been Portland cement from limestone has in- frequently defined by this court and is too creased to mammoth proportions and lime- familiar to require reference to the authorstone has come into great demand. Prac-ities stating the general rules. tically all of the stone used for manufacturing cement is produced by open quarrying. Cowey organized, was a stockholder in, and president of the Chicago Coal Company at the time he executed the deed to it and when that company conveyed to the Northern Illinois Coal & Iron Company. Since 1883 the latter company has remained dormant We have and has transacted no business. been unable to find just when appellant Follett was appointed receiver for that corporation, but the record shows he was on motion of appellees made a defendant to the amended bill in July, 1922. The amended bill was filed June 27, 1922, and it appears from the answer of defendants to the amended bill that he was appointed receiver after the litigation was commenced. The inference is warranted that the appellants and their predecessors did not interpret the deeds under which they claimed title as conveying, or as intended to convey, the limestone, until it had become enormously valuable. By their conduct and acts they contrued their title as not embracing the sand, gravel, and limestone. But appellants contend there is a marked difference between the rule applicable to the surface and entire estate in land and a claim to a mineral estate where the title to the surface and to the minerals underlying it has been severed. We held in the former appeal of this case that title to a mineral stratum may be proved by adverse possession, but recognized that proof of actual possession in such case is attended with more difficulty than in the case of the surface. Coal and minerals in place, where title to them has been severed from title to the surface, are land, and title to the minerals may be shown by documentary evidence or by proof of adverse possession under the statute of limitations. Catlin Coal Co. v. Lloyd, 176 Ill. 275, 52 N. E. 144. Where there has been a severance, the occupancy of one estate will not be considered the possession of the other. Conceding, for the sake, alone, of the argument, that appellees and their predecessors had no record title or color of title to the limestone, sand, and gravel, did they have such possession of them as to give them title by adverse [5] We are also of opinion the proof was possession? Appellants concede that may be amply sufficient to have warranted a finding true as to the sand and gravel, but deny it is and decree in appellees' favor under the true as to the limestone. The possession by claim of adverse possession for 20 years. It appellees of the sand and gravel was of the is true they had not taken sand, gravel, and same character as that of the limestone. limestone from every acre of the land, but The only difference we are able to see is that for more than 20 years they had openly and they engaged more extensively in removing notoriously removed those minerals from sand and gravel than limestone, on account various places on the land and sold to whom- of the demand for sand and gravel being soever wanted them. What we have above better. They probably removed sand and said shows appellants had actual notice of gravel from more portions of the land than |