Webb v. Harris

• Decision Date: 21 February 1958
• Citation: 44 Tenn.App. 492,315 S.W.2d 274
• Parties: L. O. WEBB, Appellee, v. J. H. HARRIS, Appellant.
• Court: Tennessee Court of Appeals

Page 274

315 S.W.2d 274

44 Tenn.App. 492

L. O. WEBB, Appellee, v. J. H. HARRIS, Appellant.

Court of Appeals of Tennessee, Western Section, at Jackson.

Feb. 21, 1958.

Certiorari Denied by Supreme Court July 11, 1958.

J. Lee Taylor, Huntingdon, for appellant.

J. Ross McKinney and W. H. Lassiter, Huntingdon, for appellee.

BEJACH, Judge.

This cause involves an appeal by J. H. Harris, who was defendant in the lower court, from a decree of the Chancery Court of Carroll County in a boundary dispute case, which decree fixed the boundary line contrary to the contentions of appellant and as was contended for by appellee, L. O. Webb. For convenience, the parties will be styled, as in the lower court, complainant and defendant, or called by their respective names.

Suit was filed December 15, 1955 by complainant L. W. Webb against defendant, J. H. Harris, seeking to have the boundary between complainant's land and defendant's land established, and to enjoin defendant from cutting timber north of the line contended for by complainant. The land in dispute embraces a tract of about twenty acres which is about 65 rods long from east to west, and about 14 rods wide from north to south. This disputed area is embraced within the calls of deeds to each of the parties hereto. The disputed area consists of uncultivated land in Carroll County, Tennessee of a hilly character, unimproved and unfenced, although there is some testimony as to fences which have existed in past times. Apparently the only profitable use which has been made of the land has been that of cutting timber from same. This, both parties claim to have done. The Chancellor decided the issues in favor of complainant, on the basis of an agreement fixing the boundary as contended for by complainant, which agreement he held had been established by the preponderance of the evidence. This agreement, as established by the evidence in the case, occurred in 1948, more than seven years before the filing of the suit in this cause. The evidence tends to show that at that time, while defendant Harris was having his land surveyed by C. B. Allen, County Surveyor of Benton County, complainant and defendant agreed that the east to west line as surveyed by said Allen, beginning at what is referred to as the McCay corner which was pointed out by Bud McCay who testified in this cause, should be accepted as the boundary between the lands of the parties hereto; and that as same was being surveyed, same was marked and painted, defendant Harris, himself, carrying the bucker of paint and doing the painting, or at least some of it. Prior to the hearing, complainant had amended his bill so as to allege and rely on the Statute of Limitations of seven years, for the purpose of establishing his right to the disputed land.

The Chancellor made a written finding of facts which is part of the record of this cause, and a final decree was entered in conformity with same. Defendant excepted to the decree, prayed, and has perfected his appeal to this Court. As appellant, he has filed in this Court six assignments of error, which are as follows:

'I

'The Chancellor erred in holding that the adverse possession of the defendant and the facts and existing circumstances before 1948 were not to be considered in deciding the law suit. (Tr. P. 430)

'II

'The Chancellor erred in holding that the complainant and the defendant agreed upon a common line. (Tr. P. 430)

'III

'The Court erred in holding that complainant and defendant had done everything necessary in order to affix a common line under the law. (Tr. P. 430)

'IV

'The Court erred in holding that the controverted strip of land was the property of complainant, even though complainant never at any time offered any evidence that said land was ever granted by this State, or the State of North Carolina.

'V

'The Court erred in finding that the evidence since the alleged agreement in 1948 clearly preponderates in favor of complainant.

'VI

'The Court erred in Taxing Defendant with all the cost of the same.'

This cause is before us under the provisions of Section 27-303, T.C.A., which provides for a hearing de novo in this Court, accompanied, however, by a presumption of the correctness of the decree of the trial court, unless the preponderance of the evidence is contrary to the Chancellor's ruling. We have carefully read the testimony preserved in the record of this cause, which testimony, pursuant to an order entered in the cause, was heard orally in open court by the Chancellor. After careful consideration of the matter, we have reached the conclusion that we would not be justified in holding that the preponderance of the evidence is against the Chancellor's findings of fact. He saw the witnesses face to face, heard them testify, and appraised the worth and weight of the testimony, and reached the conclusion that an agreement had been reached. Among the witnesses were C. B. Allen, who made the survey, Bud McCay who pointed out the corner from which the surveyor began running the line agreed on, and several of those who were present when the line was established.

This suit was properly filed under the provisions of Sections 10368 and 10369 of Williams' Annotated Code, T.C.A. §§ 16-606 and 16-607. It was expressly held by this Court in Rogers v. S. W. Taylor & Co., 2 Tenn.App. 445, 450 that disputed boundary lines may be established by oral agreement, that such agreements do not fall within the prohibition of the Statute of...