Ray v. Crain

• Decision Date: 22 December 1934
• Citation: 80 S.W.2d 113
• Parties: RAY v. CRAIN et al.
• Court: Tennessee Supreme Court

80 S.W.2d 113

RAY v. CRAIN et al.

Court of Appeals of Tennessee, Middle Section.

December 22, 1934.

Petition for Certiorari Denied by Supreme Court March 19, 1935.

Appeal from Chancery Court, Warren County; T. L. Stewart, Chancellor.

Bill by G. W. Ray against A. M. Crain and another. Decree for complainant, and defendants appeal.

Affirmed.

Mercer & Johnson, of McMinnville, for appellants.

Turner & Haston, of McMinnville, for appellee.

FAW, Presiding Judge.

The bill in this case was filed in the chancery court of Warren county, on June 16, 1932, by G. W. Ray against A. M. Crain and Claude Cathcart. All the parties are residents of Warren county.

The decree of the chancery court granted the relief sought by the complainant, and the defendants appealed to this court and have assigned errors here.

The complainant alleges in his bill that he is the owner in fee of two contiguous tracts of land — one containing "about forty acres" and the other containing "ten acres more or less" — both of which tracts are situated in the First civil district of Warren county, and which tracts are described separately, by metes and bounds, in complainant's bill.

Complainant further alleges that he and his predecessors in title have been in the open, peaceable, notorious, and adverse possession of said land since its purchase over fifty years ago, receiving the rents and profits from said land and paying the taxes thereon from year to year; that, notwithstanding the complainant's ownership and his right to possession of said tracts of land, the defendants have entered upon said land of the complainant, on the west side where the call is "running up the branch westward with Crain's line about 27 poles to a stone," and have taken possession of a portion of said land of complainant by erecting a fence thereon, the same being a narrow strip of land running up the branch, and the line runs with the branch and a distance of 27 poles, and, notwithstanding the fact that both deeds call for a white oak stump in the branch and running with the branch 27 poles, the defendant has attempted to take possession of complainant's land by erecting a fence thereon and cutting timber and trying to fence the same up so that complainant cannot get water out of the spring — a spring which belongs to the complainant and has always been recognized as a spring which was on his land; that, unless the defendant is restrained by an injunction of the court he will fence up said spring and interfere with complainant's right to get water out of said spring, which is located within the boundary line between complainant's land and defendants' land, the defendants' land lying on the west side of the land of complainant; that both the complainant and defendant obtained their two tracts of land from one R. H. Mason a good many years ago, and both tracts came to them through a common source of title from the said R. H. Mason, who, having formerly owned both tracts of land, made a division line between the land of complainant and the land of the defendant and made the branch the line between the two tracts.

Complainant further alleges that the defendants are attempting to take possession of a portion of his said land and set up some kind of title or claim to the same which complainant does not know; that defendant is committing waste upon the property of complainant by cutting timber thereon, putting a fence on complainant's land and attempting to fence complainant off from his spring, and will continue to do so, and to interfere with complainant's right to get water from said spring, unless defendant is enjoined from so doing.

After a prayer for process, etc., complainant prays that defendant's claim, or assumed claim, which he is setting up to the land of the complainant, be declared a cloud upon the title to said strip of land belonging to complainant and removed as such; that a temporary injunction issue enjoining defendant from interfering with the complainant in any manner in getting water from said spring, and that, on the hearing said injunction be made perpetual; that the line between the complainant and defendant, where the same says "beginning on a white oak stump in Crain's line and running up the branch westward with Crain's line about 27 poles to a stone," be declared the true line between the complainant and the defendant, and that said line be established with the branch, as called for in the deed, and that defendant be forever enjoined from setting up any claim, right, or title thereto; and that complainant be granted full, complete, and general relief. It is stated that "this is the first application for injunction in this cause."

A temporary injunction as prayed for in the bill was granted by fiat of the county judge of Warren county prior to the filing of the bill.

It is seen that it is, in substance and effect, alleged in the bill that complainant and defendants are the respective owners of adjoining lands, and that complainant seeks to have the boundary line between their respective lands established, and to have defendants enjoined from further trespassing upon his lands. The bill might, therefore, very properly have been treated as filed under the Public Acts of 1915, c. 122 (carried into the Code as sections 10368, 10369) to establish a boundary line. Union Tanning Co. v. Lowe, 148 Tenn. 407, 412, 413, 255 S. W. 712.

However, in the chancery court all the parties and the chancellor treated the case as a suit in ejectment, and the propriety of so treating it has not been questioned in this court.

The defendants answered the complainant's bill on July 2, 1932, and the first four paragraphs of their answer read as follows:

"They deny that complainant is the owner of the land in controversy in this cause and they do not admit that complainant is the owner of the two tracts of land described in said bill and will require strict proof of his ownership thereof.

"Defendants deny that complainant and his predecessors in title have been in the open, peaceable, notorious and adverse possession of the land in controversy in this cause for over fifty years, receiving the rents and profits from said lands and paying the taxes thereon from year to year.

"Defendants admit that the narrow strip of land in controversy in this cause lies just North of complainant's land where the call is `running up the branch Westward with Crain's line about 27 poles to a stone' but they deny that it is on the West side of the land claimed by complainant and they aver that it is on the North side of the land claimed by complainant. They deny that complainant is the owner of said strip of land and that they have recently entered upon the same and taken possession of the said land of complainant by erecting a fence on said land belonging to the complainant and they deny that said strip of land is the property of complainant.

"Defendants further aver that the defendant, A. M. Crain, purchased from R. H. Mason a tract of land lying North of the First tract described in complainant's bill over 22 years ago, by deed recorded in Book 38, page 377, in the Register's office of Warren County, Tennessee."

Defendants then allege in their answer, with many details of time, manner, and circumstances, that defendants have been in the adverse possession of "the narrow strip of land in controversy in this cause" and of the spring mentioned in complainant's bill, under fenced inclosure, since defendant Crain's purchase thereof (as a part of a larger tract) from R. H. Mason in the year of 1909, and the defendants plead the statutes of limitation of seven years and of twenty years as a bar to complainant's suit.

Defendants further allege that the deed under which complainant, Ray, claimed said strip of land is champertous, that is to say, that the deed to complainant under and by which he claims said strip of land was executed on the ______ day of ____, 19__, and that at that time the defendant Crain was in the adverse possession of said strip of land as aforesaid, and that such being the case, complainant's deed is void and inoperative as to said strip of land.

On February 27, 1933, the defendants, by leave of the court, amended their answer, and in said amendment they amplified and elaborated the allegations of their former answer with respect to the manner and circumstances of their claim of adverse possession, and also alleged that complainant and his predecessors in title had recognized the line claimed by the defendants as the true boundary line between the respective lands of complainant and defendants, and that complainant is therefore estopped to claim the strip of land in controversy.

The complainant demanded a jury, which demand was granted, and issues of fact, made up by the parties under the direction of the court, were submitted to a jury, which issues (with the response of the jury to each issue) are as follows:

1. Has the complainant been in actual and adverse possession of any part of the tract of land sued for, openly, notoriously, and continuously, under any color of title, for a period of seven years or more next preceding the date of the filing of the bill? A. Yes.

2. What deed or color title he held under, if any? A. By deed.

3. Do complainant's deeds cover and include the land in controversy? A. Yes.

4. Was the defendant A. M. Crain in actual, adverse possession of the land in controversy at the time complainant's deeds were executed to him, to wit, the first tract on April 25, 1924, and the second tract on the 23d day of February, 1923? A. No.

5. Has the defendant Crain been in adverse possession of the land in controversy, or any part thereof, by inclosure for seven years or more prior to the filing of the bill in this case? A. No.

6. Has the defendant Cathcart, or his predecessors in title, been in adverse possession of the land in controversy, or any part thereof, by inclosure for seven years or more prior to the filing of the bill in...