Belding v. Hebard

• Decision Date: 13 July 1900
• Docket Number: 783.
• Citation: 103 F. 532
• Parties: BELDING et al. v. HEBARD.
• Court: U.S. Court of Appeals — Sixth Circuit

103 F. 532

BELDING et al. v. HEBARD.

No. 783.

United States Court of Appeals, Sixth Circuit.

July 13, 1900

This is a bill to restrain trespass and remove a cloud from the title to a large tract of wild mountain land claimed to lie within the Seventeenth civil district of Monroe county, Tenn. The complainant claims title under a grant from the state of Tennessee. The defendants claim title to the same under a grant from the state of North Carolina. The title turns upon the location of the boundary line between the state of North Carolina and the state of Tennessee, and the object of the bill is to have the state line ascertained and determined between the Little Tennessee river and a mountain peak called 'Stratton Bald,' a distance of some seven or eight miles from the point where the state line crosses the Little Tennessee river. The claim of the complainant, Charles Hebard, is that the said state line crosses the Little Tennessee river about one-half mile below where Slick Rock creek runs into the river; thence directly to the Hangover ridge, and along the extreme height of that ridge to its junction with another ridge called the 'Fodder Stack Ridge.' This contention, if sustained, places the lands lying between the Hangover ridge and Slick Rock creek within the state of Tennessee, and confirms the title to Hebard under his Tennessee grant. The defendants, on the other hand contend that the line crosses the Little Tennessee river at or near the mouth of Slick Rock creek, and runs up said creek, following its meanders, something over six miles; then up a ridge leading from the creek to the Big Fodder Stack and then southwestwardly with the top of the Big Fodder Stack lead to its junction with the Hangover lead. In other words defendants insist that for a distance of nearly six miles the state line follows Slick Road creek, and that the lands lying east of the creek, and between it and the crest of the Hangover spur, were on the North Carolina side of the line and therefore subject to grant by North Carolina.

The territory now comprising the state of Tennessee was ceded by the state of North Carolina, in 1789, to the United States. The cession act describes the eastern boundary line as follows: 'Beginning on the extreme height of the Stone Mountain, at the place where the Virginia line intersects it, running thence along the extreme height of the said mountain to the place where the Wautauga river breaks through it; thence a direct course to the top of the Yellow Mountain, where Bright's road crosses the same; thence along the ridge of said mountain, between the waters of Doe river and the waters of Rock creek, to the place where the road crosses the Iron Mountain; from thence along the extreme height of said mountain to where Nolinchucky river runs through the same; thence to the top of the Bald Mountain; thence along the extreme height of the said mountain to the Painted Rock, on French Broad river; thence along the highest ridge of the said mountain to the place where it is called the 'Great Iron' or 'Smoky' Mountain' thence along the extreme height of the said mountain to the place where it is called 'Unicoy' or 'Unaka' Mountain, between the Indian towns Cowee and Old Chota; thence along the main ridge of the said mountain to the southern boundary of this state. ' The line here to be ascertained is included within the call beginning 'thence along the extreme height of the said mountain to the place where it is called Unicoy or Unaka Mountain. ' The mountain whose extreme height is to be followed until Unaka Mountain is reached is the 'Great Iron or Smoky Mountain.' The necessity for a definite location and marking of the line became evident to both states, and in 1821, under acts passed by each state, a joint commission was appointed for the purpose of settling, running, and re-marking the boundary line. The Tennessee commissioners were appointed under an act which provided that the commissioners should 'settle, run and re-mark the boundary line between this state and the state of North Carolina, agreeably to the true intent and meaning of the said act of the general assembly of the state of North Carolina, entitled: 'An act for the purpose of ceding to the United States of America certain western lands therein described.' ' Act. Tenn. 1820, c. 22. The North Carolina act, providing for the running of the line, was substantially identical with the Tennessee statute above set out, 2 Ired. & B.Rev.St.N.C.p. 94. The joint commissioners did run and remark the line, and each state passed an act ratifying, confirming, and adopting the line as run and reported by the commissioners. Act Tenn. 1821, p. 45, c. 35; 2 Ired. & B.Rev.St.N.C.p. 96. The Tennessee confirmatory act is as follows: 'Be it enacted by the general assembly of the state of Tennessee, that the dividing line run and marked by Alexander Smith, Isaac Allen and Simeon Perry, commissioners for and on behalf of this state, and James Mebane, Montfort Stokes and Robert Love, commissioners for and on behalf of the state of North Carolina, which dividing line, as run by said commissioners, begins at a stone set up on the north side of Cataloochee turnpike road, and marked on the west side, 'Ten., 1821,' and on the east side, 'N.C., 1821'; running thence on a southwestwardly course to the Bald Rock, on the summit of the Great Iron or Smoky Mountain, and continuing southwestwardly on the extreme height thereof to where it strikes Tennessee river, about seven miles above the old Indian town of Tallassee, crossing Porters Gap at the distance of twenty-two miles from the beginning, passing Meigs' boundary line at thirty-one and a half miles, the Equovettly path at fifty-three miles, and crossing Tennessee river at the distance of sixty-five miles from the beginning; from Tennessee river to the main ridge, and along the extreme height of the same to the place where it is called the 'Unicoy' or 'Unaka' Mountain, striking the old trading path leading from the valley towns to the overhills towns, near the head of the west fork of Tellico river, and at the distance of ninety-three miles from the beginning; thence along the extreme height of the Unicoy or Unaka Mountain to the southwest end thereof, at the Unicoy or Unaka turnpike road, where a corner stone is set up marked 'Ten.' on the west side, and 'N.C.' on the east side, and where a hickory tree is also marked on the south side 'Ten., 101 M.,' and on the north side 'N.C., 101 M.,' being one hundred and one miles from the beginning; from thence a due course south two miles and two hundred and fifty-two poles to a spruce pine on the north bank of the Hiwassee river, below the mouth of Cane creek; thence up the said river the same course about one mile, and crossing the same to a maple marked 'W.D.' and 'R.A.,' on the south bank of the river; thence continuing the same course due south eleven miles and two hundred and seventy-three poles to the southern boundary line of the state of Tennessee and North Carolina, making in all one hundred and sixteen miles and two hundred and twenty-three poles from the beginning, and striking the southern boundary line twenty-three poles west of a tree in said fine marked '72 M.,' where was set up by said commissioners a square post, marked on the west side 'Ten., 1821,' and on the east side 'N.C., 1821,' and on the south side 'G.,' be, and the same is hereby ratified, confirmed and established as the true boundary line between this state and the state of North Carolina. ' The boundary is described in the North Carolina confirmatory act in words identical with those used in the Tennessee act, but concludes with these words: 'The whole distinctly marked with two chops and a blaze on each fore and aft tree, and three chops on each side line tree, and mile marked at the end of each mile. ' That part of the line here involved begins with the words, 'from Tennessee river to the main ridge, and along the extreme height of the same to the place where it is called the 'Unicoy' or 'Unaka' Mountain.'

After some evidence had been taken, the circuit court 'ordered that the cause be, and hereby is, referred to Asbury Wright, Esq., of Roane county, Tennessee, as special master, who will, from the proof on file and such other proof as shall be offered by the parties, report to the court the true state line between the state of Tennessee and the state of North Carolina, from the Little Tennessee river to the junction of the Hangover and Fodder Stack ridges, as run and located by the commissioners of the states of North Carolina and Tennessee in 1821, and confirmed by the respective legislatures of said states. ' A great mass of evidence was taken, and from the entire evidence the special master reported 'that the line between the states of Tennessee and North Carolina, from the Little Tennessee river to the junction of the Hangover and Fodder Stack ridges, as run and located by the commissioners of said states in 1821, and confirmed by the respective legislatures of said states, crosses the Tennessee river at the point where it reaches the river on the northeast side, and from the river runs up the Hangover lead, as shown on complainant's map, and along the extreme heights of this ridge, * * * to the junction of the Hangover with the Fodder Stack. ' This report included a full finding of the facts material to the conclusion reached, some of which will be hereafter referred to. The defendants excepted generally and specially to the findings and conclusions of the master. These exceptions were overruled, and the conclusions of the master adopted, and a decree pronounced establishing the title of complainant. From this decision the defendants have appealed.

E. T Sanford and T. F. McGarry, for appellants.

S. T....