Cowan v. Hatcher

• Decision Date: 28 April 1900
• Citation: 59 S.W. 689
• Parties: COWAN et al. v. HATCHER et al.
• Court: Tennessee Supreme Court

59 S.W. 689

COWAN et al. v. HATCHER et al.

Court of Chancery Appeals of Tennessee.

April 28, 1900.

Appeal from chancery court, Sevier county; John P. Smith, Chancellor.

Ejectment by Thomas P. Cowan and others against William Hatcher and others. From a decree in favor of complainants, defendants appeal. Modified.

S. T. & N. E. Logan, A. J. Wrinkle, H. A. Mann, and E. E. Houk, for appellants. Will A. McTeer, for appellees.

NEIL, J.

This is an ejectment suit. The complainants claim under grant 28,127 issued to Levater Wear and A. L. Mullendore, dated August 19, 1851, for 4,520 acres. The defendants claim under grant 29,574, issued to Matthew H. Bogle, Hugh Bogle, Andrew Bogle, James Bogle, and George Davis on the 27th day of March, 1856, for 700 acres. The controversy is over an interlap of about 425 acres. It is conceded that the complainants originally had the better title, their grant being older, but it is insisted that the grantees under the Bogle grant devested that title, and acquired a superior right under the statute of limitations by seven years' adverse possession on the interlap before the filing of complainants' bill. The only question in the case is whether the proof makes out such adverse holding.

The defendants, in their answer, claim that they are connected by an unbroken chain of title with the Bogle grant. This claim, however, is not sustained by the evidence. So the defense is at last, in substance, that there is an outstanding title in the grantees under the Bogle grant by virtue of the adverse possession just referred to, which, of course, can be made without being specially pleaded. Bleidorn v. Mining Co., 89 Tenn. 168 (Syl., point 12) 15 S. W. 737. The facts are as follows: In 1867 one John S. Tipton went upon the interlap as a tenant of the claimants under the Bogle grant. The amount of land he was to hold was not at this time indicated by any written lease, nor was it outlined by any verbal understanding, further than that he was to have the privilege of buying so much of the land as he should clear and inclose. It is to be inferred from the testimony that the purpose of his going there was to get the benefit of a mineral spring, formerly known by the name of "Bench Mountain Spring," afterwards by the name of "Tipton Springs." He built a substantial cabin near the spring, and cleared an acre and a half of ground, and fenced it in, and planted fruit trees, and constructed a stable out of poles some distance from the house. It was his habit to spend from two to four weeks in the summer at this house, with his family, for the benefit of the water. The rest of the year it was usually not occupied by him or his family. Matters so continued until the first Monday in July, 1869. On that date the 700 acres of land was sold for taxes, and was purchased by John S. Tipton. From that time until July 3, 1871, he claimed the land as his own under the tax sale. There is, however, no sufficient description of the land in the tax proceeding to outline its boundaries; the only description being, "Andrew Bogle, one tract of land, 5,000 acres, lying in district number 6, valued at $300." John S. Tipton supposed, in buying under this tax sale, he was buying the 700 acres of land. The claimants under the Bogle grant also supposed that the land had been sold under this description, and so redeemed it from him on the 3d of July, 1871. As stated, between the date of John S. Tipton's purchase at the tax sale and the date of the redemption he held and claimed for himself. During this period he used the land as previously indicated. At the time the redemption was made, an agreement was entered into with John S. Tipton by the persons effecting the redemption, claimants under the Bogle grant, that Mr. Tipton might occupy the place so long as he lived, or desired to, with the understanding that the claimants under the Bogle grant were to occupy it if they desired to. This agreement was made with Mr. Tipton because he had cleared the land, built the house, and made other improvements. There was no specific amount of land mentioned that Tipton was to occupy. He was to hold under the Bogle claim. After this time he occupied the place under the above-mentioned agreement from 10 to 15 years, using it in the manner stated above as to prior years. The agreement was not evidenced by any writing. The fence around the lot was burned down about 1883, and not rebuilt. This fence was maintained from July 3, 1871, until it was burned, as just stated. The house was still standing in 1898. All that Tipton claimed under the agreement made at the time of the redemption, as stated by his son, was "to have the use of the springs and the house and the land he cleared up during his lifetime, and also during the lifetime of his wife." It seems he also claimed in a general way 50 acres around the spring, but that was undefined otherwise. John S. Tipton occupied the house every summer from two to four weeks, as stated, and cultivated the inclosed land each year for garden purposes to supply his family while attending the springs, from the time the land was redeemed up to about 1882, 1883, or 1884, — the exact date does not more definitely appear in the testimony. When he was absent, the house was not locked, but the doors were closed and latched. During the fall, winter, and spring of the year it was customary for people who were hunting or herding to go there and stay when they wanted to, but it does not appear that such conduct on their part was known to Tipton. It does not appear that Tipton's consent was asked as to these intrusions. Nor does it appear that such intruders made any claim of right to the land. They were merely occasional trespassers. "Back in those years," in the language of one of the witnesses, "it was the custom of the people — just anybody that wished to — to go and occupy those cabins scattered around in the mountains when out herding their cattle, and also to take their families, and go and stay in the cabins as long as they wished." The first building in the neighborhood was put up about 1848 by Pleas Boling, Silas Dean, and John S. Boling, the next one was that put up by Tipton, and the next one was put up by one Husky. The Tipton cabin was two miles from any settlement. To what has been said may be added the following from the testimony of the witness L. T. Shular: "Since the time I first knew the place (1876, 1877), the cabin was occupied by people for the use of the water. It was not occupied all the year at all, but just a spell through the summer. I have been there during all seasons of the year. Have been there hunting, and also during the watering season. The house has been occupied just by anybody who could get there and take charge of it first. * * * During some years, when Tipton would be out of the house, pretty generally some one would be in it." The witness A. C. Emmert also says: "While Tipton stayed there, it was his house, without he gave some one leave to stay there; but after that just anybody that could get the house occupied it." In addition to the foregoing it should be stated that about the year 1881 a man named Loveday built a cabin as close to the spring as was the cabin of Tipton, and used it several years; but, as this was about the time that Tipton abandoned the premises, this matter need not be further referred to. It is stated in the testimony of one of John S. Tipton's sons that during his father's absence the cabin was occupied only with the consent of his father, but this statement is not wholly true. We find the facts to be on this subject as set forth in the previous parts of this finding of facts, with this addition by way of qualification, viz. that John S. Tipton frequently gave permission to persons to occupy the house when neither he nor his family would need it for occupation, and at such time gave...