239 S.W. 398 (Tenn. 1921), 15802, Southern Coal & Iron Co. v. Schwoon

Docket Nº:15802, 15806.
Citation:239 S.W. 398, 145 Tenn. 191
Opinion Judge:L. D. SMITH, Special Judge.
Party Name:SOUTHERN COAL & IRON CO. ET AL. v. SCHWOON ET AL. SOUTHERN COAL & IRON CO. ET AL. v. BRUSH CREEK COAL CO. ET AL.
Attorney:R. E. Robinson, of Chattanooga, and W. C. Abernathy, of Tracy City, for complainants. Fults & Schoon, of Tracy City, Brown, Spurlock & Brown, of Chattanooga, C. H. Garner, of Tracy City, Spears & Spears, of Chattanooga, L. V. Woodlee, of Altamont, and John C. Myers, of New York City, for defendants.
Judge Panel:We concur fully in what the chancellor said in his opinion on this point:
Case Date:December 08, 1921
Court:Supreme Court of Tennessee
 
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Page 398

239 S.W. 398 (Tenn. 1921)

145 Tenn. 191

SOUTHERN COAL & IRON CO. ET AL.

v.

SCHWOON ET AL.

SOUTHERN COAL & IRON CO. ET AL.

v.

BRUSH CREEK COAL CO. ET AL.

Nos. 15802, 15806.

Supreme Court of Tennessee.

December 8, 1921

Appeal from Chancery Court, Hamilton County; W. B. Garvin, Chancellor.

Separate suits in ejectment by the Southern Coal & Iron Company and others against Fred Schwoon and others, and by the Southern Coal & Iron Company and others against the Brush Creek Coal Company and others, consolidated for trial. Decree for defendants, and complainants appeal. Decree modified to conform to conclusions in the opinion.

Page 402

R. E. Robinson, of Chattanooga, and W. C. Abernathy, of Tracy City, for complainants.

Fults & Schoon, of Tracy City, Brown, Spurlock & Brown, of Chattanooga, C. H. Garner, of Tracy City, Spears & Spears, of Chattanooga, L. V. Woodlee, of Altamont, and John C. Myers, of New York City, for defendants.

L. D. SMITH, Special Judge.

1. General Statement of the Case and of the Question Presented.--These are ejectment cases. In the first case styled the complainants assert title to and seek to recover a 5,000-acre tract of land in Grundy county which may be conveniently referred to as grant No. 4936, that being the number of the grant issued by the state of Tennessee from which the complainants deraign their title. In the other case the complainants assert title to and sue to recover another 5,000-acre tract of land in Grundy county which may be conveniently referred to as grant No. 4940, that being the number of the grant issued by the state from which the complainants deraign their title.

That the complainants deraign a perfectly connected chain of title from the state was not disputed on the trial of the case in the chancery court, and is not questioned here. Both grants were issued by the state to Samuel Edmondson, and the defendants concede in their briefs that complainants are now the owners by regular conveyance of the Edmondson title, and make no question on that branch of the case--whatever title Edmondson had to the land by reason of the grants the complainants now have.

The defendants deny the right of complainants to recover upon the following grounds:

First: That the complainants are unable to locate the tracts of land sued for and described in the bills, and have failed to show that their title papers cover and embrace the land of the defendants.

Second: That the complainants are estopped to claim the land, because in a judicial proceeding in the county court of Grundy county in July, 1908, instituted by them for the purpose of having the assessment for taxes on these lands for 1907 and 1908 corrected, they disclaimed and renounced all claim to the land included within, and covered by grant 4940, and all except 1,800 acres in grant No. 4936; that in that application complainants predicated their right to have the assessment corrected on the ground that the lands assessed to complainants were not owned by them.

Third: That defendants' title is superior to that of the complainants, and each defendant claims as to his respective tract that he has the only true title to the land sued for and described in his or her or its answer.

Fourth: That defendants and those under whom they claim had been in possession of the land for more than 7 years before the filing of the complainants' bill, and each of them relies upon and pleads the statute of limitations of 7 years.

The chancellor was of the opinion that the complainants had failed to show that their title papers covered the land in dispute, and, as this was conclusive against complainants' right to recover, he did not consider or decide any of the other many questions which arise.

The cases were consolidated in the chancery court, and heard together, and come to this court upon the appeal of the complainants, all questions in both cases being raised upon one record.

2. The question of location of the complainants' land is common to both cases and to all defendants. If the complainants have failed to show that their title papers cover the land in dispute, then they must fail altogether. We may therefore conveniently consider this phase of the case first.

Grant No. 4936 and the other title papers of the complainants describe the land sued for in case No. 15802 as follows:

"On the waters of Collins river, beginning on a hickory tree, Peter Yates' southeast corner of his 5,000-acre entry; thence south, crossing the left-hand fork of Collins river at 1,000 poles, in all 1,100 poles, to a stake on the bluff; thence west 734 poles to a stake; thence with the mountain north 18 degrees west 760 poles to a stake; thence north 44 degrees east 440 poles to a black oak, Peter Yates' corner; thence with his several lines south 45 degrees east 120 poles to a white oak; thence east 180 poles to a dogwood; thence north 70 degrees east 434 poles to the beginning."

Grant No. 4940 and the other title papers of the complainants describe the land sued for in case No. 15806 as follows:

"Situated in Grundy county, Tennessee, on the waters of Collins river, beginning on the southeast corner of an entry made in the name of Peter Yates on a hickory, thence running east with Elias Mayo's survey 900 poles to two Spanish oaks; thence north with the line of John Rogers and Sterling Savage 896 poles to a hickory; thence west 900 poles to a hickory; thence south with said Yates survey 896 poles to the beginning."

Page 403

Thus it will be seen that the northeast corner of grant No. 4936 and the southwest corner of grant No. 4940 are the same, and that this common corner is the southeast corner of another grant by No. 4191, issued to Samuel Edmondson, known in this record as the Peter Yates grant, by reason of the entry upon which it is based having been made in the name of Peter Yates, and by which name we shall have occasion later on to refer to it.

The location of complainants' grants with reference to each other and to the Peter Yates grant is shown by the diagram appended.

(Image Omitted)

There is no difficulty whatever about the relative location of these grants, but the difficulty lies in locating them upon the ground.

It is admitted by the complainants that they have no other way of locating their lands on the ground except than by first locating the corner of the Peter Yates grant, from which point both of complainants' grants start, and it is conceded by the defendants that, if the complainants have successfully shown the location of the southeast corner of the Peter Yates grant to be as claimed by them, they have successfully located the lands described in the grants which form the basis of their title. The location on the ground claimed by the complainants as being the hickory or beginning corner of both grants, and as being the southeast corner of the Peter Yates grant and of the black oak or southwest corner of the Peter Yates grant, and the lines between these corners which constitute the dividing line between grant No. 4936 and the Peter Yates grant, are fully shown in the record and well understood by both sides; their position with reference to the streams, roads, and other natural objects is shown upon the maps and need not be stated more particularly here.

The burden of the evidence on this point is upon the complainants. The rule of law which is to guide us in determining whether the complainants have met this burden is aptly stated in 1 Meigs' Digest, p. 540, as follows:

"Title to land cannot exist without boundary; the plaintiff must show a marked boundary, or some proof from which boundary can be ascertained, before he can say to the defendant, even though he is a naked possessor: 'I have a better right to possess this particular piece of land than you have.' But then, in order to establish boundary, it is not indispensably necessary that some particular corner or marked line should be proven to exist. If it be proven to have existed, or any monument, corner, or marks from which the boundaries called for in a grant or deed can be satisfactorily ascertained, according to any easy and natural interpretation, it is sufficient. Nevertheless a grant can be lost for uncertainty in its boundary, there being no means by which its boundary can be defined. But not if by any reasonable means the intention of the contracting parties can be ascertained."

With this rule in view, we proceed to examine the evidence and consider the arguments pro and con upon this question of location. We shall deal principally with the location of the lines and corners of the Peter

Page 404

Yates grant, called for in the complainants' grants, since complainants concede this to be necessary, and the defendants admit that if this is accomplished the complainants' lands are located as claimed.

The Peter Yates entry reads as follows:

"Peter Yates enters 5,000 acres of land in Warren county, Tennessee, on Cumberland Mountain, on the headwaters of Collins river, beginning at a black oak standing on the bluff of the right-hand fork of Collins river, thence meandering said bluff eastwardly crossing Little Laurel; thence northwardly, thence westwardly; thence southwardly to the beginning, platting out all prior claims. October 10, 1835, Peter Yates, Locater."

The description of the land as found in the official survey and in the grant which was issued upon this entry is as follows:

"On Cumberland Mountain, on the headwaters of Collins river, beginning on a black oak standing on the bluff of the left-hand fork of Collins river; running thence with said bluff south 45~ east 120 poles to a white oak; thence east 180 poles to a dogwood...

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