Breckenridge Cannel Coal Co. v. Scott

• Court: Tennessee Supreme Court
• Writing for the Court: NEIL, J.
• Citation: Breckenridge Cannel Coal Co. v. Scott, 114 S.W. 930, 121 Tenn. 88 (Tenn. 1908)
• Decision Date: 11 December 1908
• Parties: BRECKENRIDGE CANNEL COAL CO. et al. v. SCOTT et al.

114 S.W. 930

121 Tenn. 88

BRECKENRIDGE CANNEL COAL CO. et al. v. SCOTT et al.

Supreme Court of Tennessee.

December 11, 1908

Appeal from Chancery Court, Scott County; Hugh G. Kyle, Chancellor.

Bill of ejectment by the Breckenridge Cannel Coal Company and others against J. W. Scott and others. Decree for plaintiffs, and defendants appeal. Modified and affirmed.

York & Cecil and Lucky, Sanford & Fowler, for appellants.

Scott & Chandler and Brown & Cassell, for appellees.

NEIL J.

This is an action of ejectment, brought to recover four tracts of land--the first tract, 482 acres; the second, 80 acres; the third, 100 acres; and the fourth, 300 acres.

The tract of 80 acres is not now in controversy; likewise so much of the 482 acres and the 300 acres as lies outside of the Joseph G. Norton grant, under which the defendants claim.

It is conceded by the complainants that as to so much of the land in controversy as lies within the Joseph G. Norton grant, No 22,402, based on entry No. 2,315, the title of the defendants is superior to the grants under which the complainants claim and that the complainants if they succeed at all, must recover by force of the statute of limitations.

The first question that presents itself is whether certain possessions under which the complainants claim lie within the Norton grant. If they do not lie within the Norton grant, or if no one of them lies within that grant, there would, of course, be no ground for the contention based on the statute of limitations.

The decision of this question may be confined in its application to the possession located at the mouth of Brimestone creek where that creek enters New River. In the view we take of this case it is unnecessary to consider any other possession than that one on this branch of the controversy.

The question to be determined at this point is the location of the north line of entry No. 2,315. If that line lies as indicated in the survey made by Boshears, then the possession referred to does not lie within the Norton grant. If the line is located as shown in the survey of Riseden, or in the survey of Jeffers, or as indicated in the evidence of Judge Cecil, then the possession at the mouth of Brimestone does lie partly within entry No. 2,315. After a careful examination of this question we are of the opinion that the north line of entry No. 2,315 runs 1,000 poles due east from the northeast corner of the Dillon entry, No. 1,927; and, this being true, entry No.2,315 would include several acres of the possession at the mouth of Brimestone. We do not deem it necessary to go into the particulars of this matter, further than to say that another entry, made by Joseph G. Norton about the same time that entry No. 2,315 was made, calls for the northeast corner of No. 2,315, at a point that would locate it 1,000 poles east of the northeast corner of the Dillon entry, No. 1,927. We think this is conclusive. The mistake which was made by Mr. Boshears was running the west line of No. 2,315 beyond the length of poles indicated for the purpose of reaching a supposed black gum. It is evident, however, from his deposition, that this black gum was too small to have been the tree called for in that early entry.

Having thus found that the possession at the mouth of Brimestone creek lies within entry No. 2,315, the controversy between the complainants and the defendants would be settled as to this phase of the case, but for the contention on the part of the defendants that, even though this possession is apparently within the bounds of entry No. 2,315, it is not actually within that entry, because that entry excludes prior and better claims, and that this portion of entry No. 2,315 is covered by the prior entry, No. 783 (grant No. 21,941), in the name of Anthony Dibrell; the grant being issued to Thomas B. Eastland, assignee.

It is insisted that entry No. 783 is special, and therefore that it outranks entry No. 2,315; that the grant based on No. 783 relating thereto makes a superior title to the grant based on No. 2,315. In short, it is insisted by the defendants that this possession, being on land covered by the superior title arising out of No. 783, is not really on the interlap between entry No. 2,315 and the grant for 1,500 acres on which William Buttram, the owner of the possession at the mouth of Brimestone creek, based his right.

If this hypothesis be true, the conclusion necessarily follows that the residue of the Norton grant, based on entry No. 2,315, under which the defendants claim, would not be interfered with by the possession referred to.

It would follow, however, that if defendants be held to have established seven years' adverse possession at the mouth of Brimestone creek, claiming under the 1,500-acre grant, within the bounds of entry No. 783, it must thereby be concluded that the said William Buttram drew to himself the title of so much of the grant based on No. 783 as would be covered by the conflict of that grant with his 1,500-acre grant.

On the other hand, if the contention of the complainants, be sound that entry No. 783 is not special, and if it be held that the possession at the mouth of Brimestone creek continued for seven years from the date of the 1,500-acre grant in July, 1854, within the boundaries of No. 2,315, then it would follow that William Buttram acquired so much of entry No. 2,315 as was covered by the conflict between it and his 1,500-acre grant, and this would cover all of the land in controversy between the complainants and the defendants in this case, except the 100-acre tract.

The question, then, to be considered, is whether No. 783 was a special entry.

This entry is one in a series of entries in a checkerboard system, beginning with No. 757. We find in the record a loose paper containing a plat of these entries, beginning at No. 757; next in order is No. 758; next, No. 759; next, No. 777; next, No. 780; next, No. 783.

These entries are thus described in the record taken from the entry books of Campbell county, viz.:

"State of Tennessee--No. 757.

"Thomas B. Eastland enters five thousand acres of land in Campbell county, beginning on the northwest corner of Anderson county, and eastern boundary line of Morgan county, and running thence north eight hundred and ninety-four poles, thence so far east that a line south to the line of Anderson county and with the same to the beginning will include the quantity, excluding all prior claims. Located 10th March, 1836.

"By Thomas Eastland and J. A. Lane, Lcrs."

"State of Tennessee--No. 758.

"Robert M. Eastland enters five thousand acres of land in Campbell county, beginning at the northwest corner of an entry in the name of Thomas B. Eastland for five thousand acres, and running thence north eight hundred and ninety-four poles, thence east for complement, south and west to the beginning, excluding all prior claims and including the quantity. Located 10th March, 1836.

"By Thomas Eastland and J. A. Lane, Lcrs."

"State of Tennessee--No. 759.

"Samuel v. Carrick enters five thousand acres of land in Campbell county, beginning at the northwest corner of an entry in the name of Robert M. Eastland for five thousand acres, and running thence north eight hundred and ninety-four poles, thence east for complement, south and west to the beginning, excluding all prior claims and including the quantity. Located 10th March, 1836.

"By Thos. Eastland and J. A. Lane, Lcrs."

"State of Tennessee--No. 777.

"John W. Simpson enters five thousand [acres] in Campbell county, beginning at the northwest corner of an entry for five thousand acres in the name of Samuel v. Carrick, and running thence south eight hundred and ninety-four poles, thence west for complement, north and east to the beginning, excluding all prior claims and including the quantity. Located 10th March, 1836.

"By Thos. Eastland and J. A. Lane, Lcrs."

"State of Tennessee--No. 780.

"James Snodgrass enters five thousand acres in Campbell county, beginning at the northwest corner of an entry of five thousand acres in the name of John W. Simpson, and running thence north eight hundred and ninety-four poles, thence west for complement, south and east to the beginning, excluding all prior claims and including the quantity. Located 10th March, 1836.

"By Thos. Eastland and J. A. Lane, Locrs."

"State of Tennessee--No. 783.

"Anthony Dibrell, Sr., enters five thousand acres of land in Campbell county, beginning at the northwest corner of an entry of five thousand acres in land in the name of James Snodgrass, and running thence south eight hundred and ninety-four poles, thence west for complement, north and east to the beginning, excluding all prior claims and including the quantity. Located 10th March, 1836.

"By Thos. Eastland and J. A. Lane, Locrs."

The following are the surveys made upon these entries:

Scale, 400 poles to an inch.

(Image Omitted)

"State of Tennessee, Campbell County.

"By virtue of an entry made in the entry taker's office of Campbell county for five thousand acres of land entered the 10th day of March, 1836, No. 757, in the name of Thomas B Eastland, and located by Thomas Eastland and Jacob A. Lane, I have surveyed said entry according to said location as follows: Beginning on the northwest corner of Anderson county in the eastern boundary of Morgan county on a white oak and Spanish oak, running thence north eight hundred and ninety-four poles to a white oak and dogwood; thence east, crossing Bull creek at 194 poles, crossing a branch at 434 poles, in all eight hundred and ninety-four poles, to a red oak and pointers; thence south eight hundred and ninety-four poles to a hickory, two black oaks, and a mulberry in a cove; thence west with ...