¶1(dissenting).
¶2I respectfully dissent from the majority opinion in this case.
¶3Since mineral interests in property are governed by the rules relating to real property (Sanford v. Alabama Power Company, 256 Ala. 280, 54 So.2d 562 [1951]), the statute would npt begin to run until Teal was in adverse possession of the mineral interest and entitled to demand a deed therefor. Bell v. Pritchard, 273 Ala. 289, 139 So.2d 596 (1962). Was he in adverse possession of the minerals? The answer is no. In Hooper v. Bankhead & Bankhead, 171 Ala. 626, 54 So. 549 (1911), this court said, “ ‘Such a possession (adverse) must be actual, notorious, exclusive, continuous, peaceable and hostile for the statutory period.’ ” In applying this rule to a solid mineral (coal) the court further said, “ ‘Actual possession is taken by the opening of mines and carrying on of mining operations. That possession is continuous if the operations are continuous, or are carried on continuously at such seasons as the nature of the business and the customs of the country permit or required. A cessation of operations in accordance with the custom of the neighborhood, or from necessity occasioned by some natural agency, would not be an interruption of the possession. 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 en*177joyment and appropriation of the minerals so claimed and hostile to the rights of the owner. These decisions have been on the question of adverse possession of solid minerals and the effect of them is, that for possession of a solid mineral as would mature a limitation title thereto, there must be a penetration, or the working of the minerals must be continuous as well as exclusive. Until today this court has not ruled on adverse possession of a mineral such as oil and gas. However, in jurisdictions which have considered the question, I find that acts less than actual penetration of the oil and gas reservoir will not constitute adverse possession of a severed gas and oil interest. Piney Oil & Gas Co. v. Scott, 258 Ky. 51, 79 S.W.2d 394 (1934); Kentucky River Coal Corp. v. Singleton, 36 F.Supp. 123 (E.D.Ky., 1941); Lyles v. Dodge, 228 S.W. 316 (Tex.Civ.App., 1921); Smith v. Graf, 259 Ky. 456, 82 S.W.2d 461 (1935); Viersen v. Beettcher, 387 P.2d 133 (Okl., 1963). The reason for protecting the owner of a severed mineral lease is that the mineral owner has no legally protected interest in the surface separate and apart from those rights incident to the removal of the minerals. He cannot ignore any occupation of the surface, as no cause of action can accrue to him because another is occupying the surface. Cf. 1 Williams & Meyers, Oil and Gas Law, § 224.1 and 1 Kuntz, Oil and Gas, § 10.4.
¶4Under the adverse possession theory of the case, I would hold that to constitute adverse possession of a mineral interest in oil and gas, there must be an actual and continuous penetration of the oil and gas reservoir for the statutory period by the adverse claimant. As the court said in Piney Oil & Gas Co., supra, “Adverse possession means adverse occupation and user which must be wrought on the property in question. It cannot be wrought in the office of the county clerk no matter how many deeds or leases the would-be disseizor may record there.”
¶5I see no reason why a distinction should be made between solid minerals and oil as the majority has done here. We now have three rules pertaining to redemption from a sale for taxes' — one rule for surface rights, one for solid minerals, and one for oil and gas. I do not know the rule the majority would apply to redemption of water rights — say, on a lake or large pond. Could the disseizor get by with assessment and a letter or would he have to launch a destroyer, float a bath tub, or use a dipper?
¶6Although the issue of the validity of the tax deed was not raised, it appears to me the tax deed was void. One of the recitals in the deed says that the decree of the Probate Court ordering the sale was at the April 19, 1965, term. The tax collector gave 30 days notice in the Brewton Standard. The land was sold on May 27, 1965. In total time the taxpayer was entitled to 40 days notice — 10 days under § 258, Title 51, Code of Alabama, and 30 days under § 259. From April 19 to May 27 is 38 days. See Reuter v. Mobile Building and Construction Trades Council, 274 Ala. 614, 150 So.2d 699 (1963). To support the Probate Court’s order selling the land, the court records must affirmatively show jurisdiction to sell. Anderson v. Doe, 246 Ala. 398, 20 So.2d 777 (1945). Even though § 277, Title 51 provides that recitals are prima facie evidence of the regularity of all proceedings, the jurisdictional issue here stands out like a sore thumb.
¶7I would reverse.