194 F. 301 (6th Cir. 1911), 2,031, Hopkins v. Hebard

Docket Nº:2,031.
Citation:194 F. 301
Party Name:HOPKINS et al. v. HEBARD et al.
Case Date:October 02, 1911
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 301

194 F. 301 (6th Cir. 1911)

HOPKINS et al.

v.

HEBARD et al.

No. 2,031.

United States Court of Appeals, Sixth Circuit.

October 2, 1911

The following is the opinion of the Circuit Court by McCall, District Judge:

The case of Charles Hebard against D. W. Belding and others was pending and determined in the Circuit Court of the United States for the Northern Division of the Eastern District of Tennessee, and, on appeal, in the United States Circuit Court of Appeals for the Sixth Circuit. (103 F. 532.)

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The purpose of the bill filed by Hebard in the original case was to restrain trespass and remove a cloud from the title to a large tract of wild mountain land claimed to lie within Monroe county, Tenn. The complainant claimed title to the land under a grant from the state of Tennessee. The defendants claimed title to the land under a grant from the state of North Carolina. The title turned upon the location of the boundary line between the state of Tennessee and the state of North Carolina. The object of the bill was to have the state line ascertained and determined between the points where the state line crosses the Little Tennessee river and the junction of Hangover and Big Fodder Stack ridges, near a mountain peak called Stratton Bald, a distance of about eight miles.

The claim of complainant, Hebard, was that the state line reaches the Little Tennessee river about one-half mile above, and nearly east, of where Slick Rock creek empties into said river; that it there crosses the river and follows a leading ridge of the mountain known as Hangover ridge, and along the extreme height of that ridge to its junction with 'Fodder Stack' ridge. This contention, if sustained, places the lands lying between Slick Rock creek and Hangover ridge within the state of Tennessee, and would confirm the title to complainant Hebard under his Tennessee grant.

The defendants to the bill contended that the state line crosses the Little Tennessee river at or near the mouth of Slick Rock creek and runs up said creek, following its meanders, about five miles, thence up Little Fodder Stack ridge to Big Fodder Stack ridge, and thence southwesterly with the crest of Big Fodder Stack ridge to the junction with Hangover ridge, at or near 'Stratton Bald' point. This contention, if sustained, places the lands lying between Slick Rock creek and Hangover ridge within the state of North Carolina, and would defeat the title of complainant Hebard under his Tennessee grant.

When the case was at issue, it was referred to Asbury Wright, Esq., as special master, to hear the evidence and to determine and report to the court 'the true state line between the states of Tennessee and North Carolina from the Little Tennessee river to the junction of 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. ' Special Master Wright's report was submitted July 7, 1898, wherein he finds and reports, among other things, as follows, to wit: 'After a careful consideration of the whole case, I am of the opinion, and so report, 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 Little Tennessee river at a 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, passing the black or red oak, Slick Rock Gap, Cold Springs Knob, Big Flat Knob, Hangover, Haoe, Grassy Gap, and Stratton Bald, to the junction of Hangover with Fodder Stack.'

Defendants filed exceptions to this report, which were heard by the court, and on June 10, 1899, a decree was entered, overruling the exceptions and confirming the report of the special master in all things. The court found and decreed the line between the states of Tennessee and North Carolina to be located as reported by the special master, and that the titles of the complainant to the lands described in the bill were valid, and the titles claimed by defendants thereto were void, etc. From this decree of the Circuit Court an appeal was prayed and prosecuted to the United States Circuit Court of Appeals for the Sixth Circuit at Cincinnati, Ohio, where the same was heard on March 14, 1900, and decided July 13, 1900, in an opinion by Judge Lurton, in which he carefully reviewed the whole case, affirming the decree of the Circuit Court. Charles Hebard v. D. W. Belding et al., 103 F. 532, 43 C.C.A. 296.

On August 6, 1907, more than seven years after this final decree was made and entered by the Circuit Court of Appeals, W. R. Hopkins et al.

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presented their petition to this court, alleging that on October 29, 1900, they became the purchasers of the 8,000 acres of land involved in the case of Hebard v. Belding et al., and praying that they be permitted to file a bill of review which accompanied the petition, and in which was set out certain newly discovered evidence. This new evidence, it is alleged, when considered with the evidence in the original case, would lead the court to a different conclusion, and enable the court on reconsideration to right said petitioners in matters in which they were aggrieved by the decree in the original case. And it appearing to the court by affidavits and a certified transcript of the record in the United States Circuit Court of Appeals for the Sixth Circuit, where said original case was decided on appeal, in which court, as appeared by said transcript, a petition for leave to file a bill of review was filed and leave given to apply to this court. Upon consideration this court permitted the bill of review to be filed, subject to all legal objections by demurrer, answer, plea, or otherwise as the defendants may be advised.

Thereupon the bill of review was filed, and, after stating the history of the original case, it is alleged: That while said original case was pending, on, to wit, December 9, 1899, the interests of all the defendants thereto in the lands involved in that case, except Braggs and Coopers, came to petitioners, W. R. Hopkins and his associates, and the title to said land is vested in said Hopkins and his associates. That some time in the year of 1905 the map made by the original commissioners of the states of North Carolina and Tennessee, who ran the line under the cession act (2 Ired. & B.Rev.St.N.C.p. 171), was discovered in a barrel of waste at Nashville, Tenn. A certified copy thereof is attached to the bill of review. That in February, 1906, one M. E. Cozad heard a rumor for the first time of the discovery of said map, and that he obtained on the 26th day of February, 1906, a certified copy thereof. That further attempts were made to find the written report of said commissioners accompanying the map, and the field notes of the survey, but, after the most diligent search, no other papers connected therewith could be found. That none of the grantees had any information of the finding of said map, and none of the defendants herein knew of it until about June 26, 1906, and the existence or contents of said report could not have been proven at the trial of the cause.

It is alleged: That said newly discovered map shows that the state line 'crosses the Little Tennessee river at or near the mouth of Slick Rock creek, and that it includes all the land, and more, than said defendants claimed. ' That said map is new and decisive evidence of the contention of the defendants in the original case, and that, if it had been found and presented to the court, would have been decisive in favor of the defendants, and would have resulted in a decree in their favor. That petitioners and their grantees have exercised true and perfect diligence, and could not have ascertained the existence thereof sooner than it is alleged.

On August 6, 1907, the day in which the petition was filed praying for permission to file the bill of review, an order was made and entered, directing that a rule issue and be served on the Smoky Mountain Land, Lumber & Improvement Company, grantees of Charles Hebard, the complainant in the original case, and T. E. H. McCroskey, attorney representing said company, to show cause why the prayer of said petition should not be granted and directing said company to answer thereto on or before the next rule day of this court, which was September 2, 1907. The said land company filed its answer to the petition and to the bill of review, setting up the following defenses necessary to be noticed: The suit sought to be reviewed was finally heard and determined in the United States Circuit Court of Appeals for the Sixth Circuit, July 13, 1900. The application by W. R. Hopkins et al. to file a bill of review was first made in the said United States Circuit Court of Appeals September 25, 1906. On August 6, 1907, said Hopkins and others filed in this court their petition to file a bill of review in said suit.

The petitioners and all other parties are barred by the statute of limitations. Section 4848, Shannon's Code of Tennessee, provides that 'no bill

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of review shall be brought or a motion made therefor, except within three years from the time of pronouncing the decree,' with certain exceptions not material here. Acts 1801, c. 6, Sec. 53, Legislature of Tennessee. The newly discovered evidence, the map itself, is not such evidence as is decisive or controlling in character as to the essential merits of the litigation, or would justify the court in granting the relief prayed for in the bill of review. The petitioners having purchased the right...

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