Martin v. Nance

• Decision Date: 31 December 1859
• Citation: 40 Tenn. 649
• Parties: JOHN W. MARTIN v. C. W. NANCE et al.
• Court: Tennessee Supreme Court

40 Tenn. 649

JOHN W. MARTIN

v.C. W. NANCE et al.

Supreme Court of Tennessee.

December Term, 1859.

FROM DAVIDSON.

This cause was tried at the May term, 1859, before his honor, Judge Baxter. Verdict and judgment for the plaintiff.

No counsel appeared.

CARUTHERS, J., delivered the opinion of the court.

Ejectment for about twenty-three acres of land on the shore of Cumberland River, a few miles below Nashville. The plaintiff claims title by grant from the State in 1857, on entrees made just before that time. He insists that the land entered by him was vacant at the time. It embraces a bar, or strip of land between the top of the bank, and low-water mark. The defendants insist that the State had parted with the land by grant to James Bosley in 1787, and that the title is therefore outstanding. The river line of that grant is thus described: “thence north 270 poles, to a sycamore on the bank of Cumberland river, thence down said river according to its several courses, 195 poles, to a large sweetgum.”

The court charged that these calls would carry the title to low-water mark, and thus cover the land entered by the plaintiff, although the trees called for were upon the bank, eleven poles from low-water mark, unless it were shown that a line was run and marked upon the bank at the date of the grant. In other words, that the law would presume upon these calls that the true line was at low water, unless it were proved that it was actually run and claimed at a different place.

The case of Elder v. Burrus, 6 Humph. 364, following the North Carolina case of Wilson v. Forbes, 2 Dev. 36, settles the law of this State to be, that the owners of land upon navigable streams have title to ordinary low-water mark; but if not navigable, to the centre. So, in this case, the title of Bosley and those claiming under him, would extend to the river at the ordinary low-water mark, and run with that from the sycamore to the gum, and consequently, leave no vacant land. It would be otherwise, as the court charged, if it were proved that a line had been run and marked from the one corner to the other on the bank at the time of the grant. This was a question for the jury, and they have decided against it. There was some evidence of old marks upon the bank, but it seems to have been regarded by the jury, insufficient to establish the line. The case of Massengill v. Boyles, 4 Humph. 207, holds, that to control the description of land in a deed or grant, it must be shown that monuments of boundary were made at the time of the...