Sequatchie & South Pittsburg Coal & Iron Co. v. Tennessee Coal, Iron & R. Co.

• Decision Date: 20 March 1915
• Citation: 174 S.W. 1122,131 Tenn. 221
• Parties: SEQUATCHIE & SOUTH PITTSBURG COAL & IRON CO. ET AL. v. TENNESSEE COAL, IRON & R. CO.
• Court: Tennessee Supreme Court

174 S.W. 1122

131 Tenn. 221

SEQUATCHIE & SOUTH PITTSBURG COAL & IRON CO. ET AL. v. TENNESSEE COAL, IRON & R. CO.

Supreme Court of Tennessee.

March 20, 1915

Appeal from Chancery Court, Grundy County; V. C. Allen, Chancellor.

Bill by the Sequatchie & South Pittsburg Coal & Iron Company and others against the Tennessee Coal, Iron & Railroad Company. From the decree, defendant appeals. Modified and affirmed.

NEIL C.J.

The bill was filed in the chancery court of Grundy county to recover three tracts of land, 642 acres, 142 acres, and 190 acres, all lying inside defendant's McEwen grant No 7892, the first two tracts within complainant's Samuel B Barrell grant No. 5099, the last lying partly within the grant last mentioned, and partly within complainant's Samuel B. Barrell grant No.

5090. The Barrell grants are the oldest, but the McEwen grant purports to be based on an entry in the name of Church Lanier antedating the said Barrell grants, and if that entry was special within the meaning of that term in our land law, the McEwen grant will relate to it, and so override the Barrell grants. In order to determine the specialty of the Church Lanier entry reference will have to be made to a prior entry in the name of Peter Yeates, since, under what is known as the checkerboard system of entries in this state (Coal Co. v. Scott, 121 Tenn. 88, 114 S.W. 930), one entry may be built on another, and a third on the second, and so on through a series. It is claimed for the Church Lanier entry that it is so related to the Peter Yeates entry, and that the latter was special. If the Peter Yeates entry was not special, then the Church Lanier entry cannot be special.

Again The defendant claims to have had seven years' adverse possession of the lands before complainants' bill was filed, and that it is therefore protected under the act of 1819.

It is also insisted for defendant that the title to part of the land is outstanding in a third party.

There are other questions related to the foregoing which will appear in the course of the opinion.

The chancellor decreed in favor of the complainants, and the defendant has appealed and assigned error.

1. One of the main questions to be determined in this case is whether the Peter Yeates entry No. 4042 was special. The language of that entry is:

"Peters Yeates enters 5,000 acres of land in Warren county, Tennessee, on Cumberland Mountain on the headwaters of Collins river. Beginning on a black oak standing on the bluff of the right-hand fork of Collins river; thence meandering said bluff, eastwardly crossing Little Laurel; thence northwardly; thence westwardly; thence southwardly to the beginning, plotting out prior claims."

This question was before the court in the case of John J. McEwen v. Thomas Coal & Land Co., 125 Tenn. 694, 148 S.W. 222, and it was there said:

"The call in the entry under consideration which, it is claimed, points out the locality intended to be appropriated by it is 'meandering said bluff eastwardly crossing Little Laurel.' It is argued that this call shows that the entry should cross Little Laurel where it pours over the bluff of the right-hand fork of Collins river, and it would therefore include a particular point of the Little Laurel and thus locate the land. This conclusion, however, is predicated upon a false premise. The entry does not say that the survey should cross Little Laurel where it pours over the bluff of the west fork of Collins river. Little Laurel is a stream some six or seven miles long, flowing through the Yates entry in a southerly direction, and pours over a bluff some 400 poles south of the southern boundary line of the entry according to the survey claimed by complainant. It is thus shown that the official surveyor did not understand the entry to have the meaning now ascribed to it. The survey of the other entries in the system, as shown by the map, Exhibit 1, supra, likewise shows that no one claiming an interest in this checkerboard system understood that the Yates entry was to cross Little Laurel upon its south line where it pours over the bluff. So, if this entry be treated as sufficiently special to admit of extrinsic evidence of the location of the objects called for, it is seen that the call for Little Laurel cannot refer to any particular point or spot of land. This call of the entry does not direct that Little Laurel be crossed where it flows over the bluff, nor, indeed, can it be gathered from it alone that the creek in fact flows over the bluff. We are therefore of opinion that the Yates entry is not special."

It is insisted that in the present case evidence has been brought before the court additional to that seen and read by the court in McEwen v. Thomas Coal & Land Co., supra, which would make it incumbent on the court to reach a different conclusion. The evidence is substantially the same in the two cases, on the subject in hand, except the testimony of Mr. Lanier, accompanied by a new map, showing that the bluff is more than 400 poles further north than shown by the Deakins map, Exhibit No. 1, to Deakins' deposition, and reaching up into what is designated on the map as the Peter Yeates entry, so that it appears from this new map filed by Mr. Lanier that Little Laurel pours over the bluff of the right-hand fork of Collins river at the place where the south line of the entry crosses the said Little Laurel, thus neatly meeting the conclusion of the court in the McEwen Case. This new testimony, however, is opposed by the former testimony of Mr. Lanier, in which he certified to the correctness of the Deakins map, also by the testimony of the witnesses A. R. McKenzie, J. H. McKenzie, J. F. Baker, and J. D. Trueblood, who say that the Deakins' map 4, No. 1, correctly locates the bluffs referred to as about 400 poles south of the south line of the entry as shown on the map. In this state of the evidence we cannot do otherwise than adhere to our former ruling.

To show that the Peter Yeates entry had the requisite notoriety, we are referred to the fact that two or three other entries called for it before it was surveyed. Thus: The Peter Yeates entry was made October 10, 1835, but, according to the record, not surveyed until October 19, 1836, yet the Elias Mayo entry, No. 4216, made May 16, 1836, called for the "southwest

corner of the 5,000-acre tract of land entered in the name of Peter Yeates"; also Elias Mayo entry No. 4267, entered September 5, 1836, and surveyed September 5, 1836, read as follows:

"Beginning on Peter Yeates' south boundary line on a hickory, white oak, and dogwood, and running east, passing said Yeates corner at 320 poles," etc.

John Gross entry No. 4287, made September 22, 1836:

"Beginning on a hickory on the east side of Little Laurel, and running with Peter Yeates' line north," etc.

If we had not before us the language of the entry showing it had no such calls or points, these references would show, as in the case of Hitchcock v. Southern Iron & Timber Co., 38 S.W. 588, that the Peter Yeates entry was notorious, and had such lines and corners. From the references quoted, it seems to us that only two conclusions are possible; either the date of the survey of the Peter Yeates entry is erroneously given in the record, and in fact must have antedated the entries quoted as referring thereto, or there was some oral communication at the time between the parties concerned as to where the southeast corner was expected to be made, that is, on the hickory tree, because it is impossible that the particular references could be obtained from the language of the Peter Yeates entry:

"Beginning on a black oak standing on the bluff of the right-hand fork of Collins river; thence meandering said bluff eastwardly crossing Little Laurel; thence northwardly, thence westwardly, thence southwardly, to the beginning."

The references quoted, therefore, cannot be held to add anything justifying a conclusion that the said Peter Yeates entry was special.

It was held in the McEwen Case, supra, that the survey would not give the entry the requisite notoriety to make it special, and we shall not reopen that question; therefore it is unnecessary to refer to those entries mentioned in the brief which called for the Peter Yeates entry after it was surveyed.

From what has been written, it is apparent that we have considered anew the question of the specialty of the Peter Yeates entry but it is not to be inferred from this fact that we concede that such a course was obligatory. We might have contented ourselves with the statement that the defendant had already had ample opportunity to be heard on this question, in the McEwen Case, since, even if that case cannot be treated as strictly res adjudicata on this question, for want of any of the technicalities applicable to that defense, still it not being made to clearly appear that the former decision was erroneous, the rule of stare decisis would apply. 2 Black on Judgments, § 603; Kolb v. Swann, 68 Md. 516, 13 A. 379; Southern Pac. R. R. v. United States, 168 U.S. 1, 18 S.Ct. 18, 42 L.Ed. 355; De Bearn v. Deposit Co., 233 U.S. 32, 34 S.Ct. 584, 58 L.Ed. 833; Bienville Water Supply Co. v. Mobile, 186 U.S. 217, 22 S.Ct. 820, 46 L.Ed. 1132. See, also, on the general question our own case, State v. Union Railway Co., 129 Tenn. 705, 168 S.W. 575. After having once passed on a vital question appertaining to the title claimed of a special tract of land, the court would always be averse to reopening the question where it had already had careful examination. Such was the position assumed by the court a year or two ago, when it was sought in an independent litigation to reopen the question as to the location of the Indian boundary line ascertained in the case of Hitchcock v....