Polk v. Robertson

• Decision Date: 30 June 1809
• Citation: 1 Tenn. 456
• Parties: POLK v. ROBERTSON et al.
• Court: Tennessee Circuit Court

1 Tenn. 456

POLK

v.ROBERTSON et al.

Circuit Court, D. Tennessee.

June, 1809.

Ejectment; plea not guilty, and issue.

The plaintiff produced the oldest grant for five thousand acres of land, dated about the year 1786, lying on the head waters of Richland creek, beginning at John Nelson's southeast corner (of grant No. 1,120), thence north one thousand two hundred and fifty poles, east six hundred and forty poles, south and west to the beginning, in an oblong. John Nelson's grant was read, which calls to begin about three and a half miles nearly north from the mouth of Robertson's creek, lying on the head waters of Richland and Robertson's creeks. It was proved that these lands, with other adjoining tracts, had been diligently searched after previous to the opening of the office, in August, 1807, and could not be found, and therefore were not placed on the general plan contemplated by the sixth section of the act of 1806 (chapter 1). It was admitted that the defendants made their entry after the opening of the land office in that year, and obtained a grant before any corners or line of Polk's tract, or the others adjoining, could be found, which was in the year 1808.

In order to prove the southeast corner of Nelson's tract, copies of two other grants to Nelson of five thousand acres each, two to Martin Armstrong, and one to John Armstrong, all for five thousand acres each, were offered in evidence; this was objected to on the ground that grants which were not called for either directly or indirectly by Polk, the plaintiff, could not be read, being irrelevant. It was answered that a party had a right to read what records he thought proper as evidence, and the jury would judge whether the evidence had any bearing on the question or not.

TODD, Circuit Justice (M'NAIRY, District Judge, having an interest, did not sit). It is the duty of the court to see that the evidence is relevant, as much as it is, that it should be competent. When objections are made the court will exclude testimony upon either ground, when the incompetency or irrelevancy clearly appears. [Turner v. Fendall] 1 Cranch [5 U. S.] 118.

When objections are taken to written testimony it should be handed to the court for their inspection without reading, so that it may not have an effect upon the jury. [Levy v. Gadsby] 3 Cranch [7 U. S.] 186; [Burd v. Smith] 4 Dall. [4 U. S.] 88;3 Bin. 329.

Upon examination of the copies offered, THE COURT said it was proper to receive the evidence, as there was such a connection in the calls of the grants as tended to show the boundaries of the plaintiff's tract; the dispute was a matter of identity only, and the evidence was proper. Copies of these grants were then read, from which appeared the following references in the grants: First. John Armstrong's claim called to include the mouth of Robertson creek, and to adjoin Martin Armstrong; this claim of Armstrong calls to adjoin another claim of his, and this last to adjoin Thomas Polk, the plaintiff. The second claim of John Nelson calls to begin at the southeast corner of his other tract. John Nelson's third tract calls to begin at John Armstrong's southwest corner, all of which may be seen in the subjoined plat. Several searches had been made for these tracts without effect; at length among a number of persons in search of them, Mr. Coffee and G. W. Campbell, Esq., found one of the corners of John Armstrong's claim as they supposed, viz., at H. This corner was found by accident. Upon running north trees were found marked at G., having a small variation from the course and distance called for in the grant; continuing north a beech was found at A. on the side of a dry branch, as called for in the grant. This tree also varied from a north course more than the first; the grant calls at A. for a beech marked E. H. R. W., and an elm. The proof was there was an elm on the opposite side of the branch, but not marked for a corner at all. This beech was marked with the letters E. H. R. W., and also with W. C. There was no line marked east, west, or north from this place; there appeared an old line marked about twenty poles south of this place; none of the lines of Thomas Polk's tract were ever marked, nor corners made, except the supposed one at A.

Haywood, Dickinson & Campbell, for plaintiffs, submitted the evidence to the jury without argument, considering it too plain to admit of any.

Grundy, White & Overton, argued for defendant:--

First. Upon the principle that the oldest grant holds the land conclusively in a court of law, and that nothing but questions respecting boundary can occur, it was contended that the evidence offered by the plaintiff did not establish the beech and elm as the southeast corner of John Nelson's first tract, and consequently the southwest of the plaintiff's. The claim of the plaintiff is not otherwise established than by reference to Nelson's southeast corner. How is that ascertained? It is said by finding marks at H. G. and at this place. There is no other proof. No person is produced who made any of these marks, or saw them made. The survey of John Nelson's second tract, and John Armstrong's, were made on the 11th and 12th of March, 1786. Cel. Weekly was one of the persons along at the time the corners were made. Why is he not produced? There are many reasons why the beech at A. is not the southeast corner of Nelson's first tract, called for by Polk. This place is called for in Nelson's grant, as being about three and a half miles nearly north from the mouth of Robertson's creek. Mr. Coffee tells us it is more than three quarters of a mile east of a north course from the mouth of that creek, and about four miles from thence. It cannot be the place; the distance does not answer, and there is a great variation in the course. If a latitude of three quarters of a mile be allowed to the east or west, any other greater distance may with equal propriety. The tract of which this is a corner (John Nelson's) calls for the head waters of Richland and Robertson's creeks. This supposed corner at A. is on the waters of Rock creek of Duck, another water course altogether, and is not marked as a corner for the tract; a beech and elm is called for in the grant; the elm is not marked at all, and stands on the opposite side of the branch, where it is not reasonable to suppose a person would call for it for a corner. A tree called for as a corner was surely marked as one. Besides, the beech does not answer the description. Though marked as a corner for four tracts, it has more letters than are called for in the grant, viz., W. C. The proof produced, so far from showing that this is the southwest corner of Polk's tract, shows that it cannot be. There was not a single corner made at B. C. nor D. nor any line marked anywhere, so as to assist in establishing this place. We admit that if the place at A. was clearly established as the corner of the tract, that other corners or lines of the tract not having been marked, would not destroy the claim; but that is far from being established.

The English law differs from ours as it respects ejectments. There, a person may recover by showing a right of possession alone, jus intrandi, without any title deeds whatever. 2 Bac. Abr. tit. ‘Ejectment,’ A, D, 3; 3 East, 355-358. Here you must cover the possession by title. 2 Hayw. (N. C.) 11, 69, 88, 98, 114, 157, 336. If it be necessary for the plaintiff to show a title, it must of course be such a one as conforms to the principles of law. It must...