Lowe v. Cunningham

• Decision Date: 11 February 1897
• Citation: 39 S.W. 1052
• Parties: LOWE v. CUNNINGHAM.
• Court: Tennessee Supreme Court

39 S.W. 1052

LOWE v. CUNNINGHAM.

Court of Chancery Appeals of Tennessee.

February 11, 1897.

Appeal from chancery court, Davidson county; H. H. Cook, Chancellor.

Bill by W. F. Lowe against Margaret Cunningham. From a decree dismissing the bill, complainant appeals. Affirmed.

Below will be found the map referred to in the opinion.

John P. Helms, for appellant. J. B. Daniel, for appellee.

BARTON, J.

This is a lawsuit over a narrow strip of land, containing about one-sixteenth of an acre, and probably worth about three dollars, located on the northern boundary of complainant's land and the southern boundary of the defendant's. The contest and our findings will be best understood by referring to and adopting as part of this opinion the plat or map, marked Exhibit B, to the deposition of W. E. Botts, which we detach from the transcript for this purpose, and reattach it to the same with this opinion, making it a part thereof. The

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

strip in dispute is shown on this map by the words "yellow strip" found between the figures "1" and "2," which we have marked thereon, at the southeast corner of the defendant's tract and the northwest corner of the complainant's tract. Complainant purchased his land from one Mrs. Hall, who took it as an heir of John Cole, deceased, in the partition of the Cole estate. Complainant's land is a part of the old Cunningham tract. Deeds to these tracts called for a straight line from the point shown on the map as an "Old Stone," near the letter "E," to the point shown on the map as the "Old Sugar Tree," letter "W" on the map. There is no dispute as to where these two points are, and there is no dispute that the old deeds all call for this line as a straight line from the old stone to the old sugar tree, no other tree, line, or corner being called for between those two points. The complainant claims the land in question up to the line shown as the red line at the top of the yellow strip appearing on the map, basing his claim — First, on the contention that this is the true line; second, that it was a conventional line or line agreed and acted on for many years; and, third, he claims the land by virtue of the statute of limitations, claiming actual, adverse, open, and notorious possession of the same for a period of more than seven years.

Without going into detailed discussion of the evidence, we state our findings of fact in the simplest and briefest form, and they are as follows, reversing the order above stated:

1. The weight of the evidence fails to show any actual adverse possession for a period of seven years before the suit brought. The weight of the evidence shows that a good portion of this land was not inclosed until the year 1889; and the weight of the evidence further shows that such fence, as put upon the line, as claimed by the complainant, was put there...