Smith v. Hutchison

Wilkes, J. This is a bill to enjoin the cutting of timber upon a certain tract of land in Lake County, and for an account for timber already cut, and to quiet title of complainants to the land. The contest turned upon the title to the land, and the Chancellor found this question in favor of the complainants. Under an order of reference- the value of the timber cut was fixed, and as to this feature of the case there is no further controversy, it being conceded that the value found is correct. Defendants, however, insist that they have the superior title to the land from which the timber has been cut, and this question of title is now the only one in dispute. The Chancellor was of opinion that not only did the complainants have the superior title to the — 396 — land, but also that the title papers of defendants did not cover the land in dispute. Complainants’ title is based upon an entry made in 1S46, in which the range and section in which' the land is situated are specified. It appears that no grant issued upon this entry until 1885, when it did issue to Caldwell, Cochran and Wilson, assignees of Owen, the original enter er. Complainant derives his title from these grantees, through a Court partition proceeding, which it is conceded was altogether regular and valid. It does not appear that there is any serious contention but that the title papers of complainant cover the land in dispute. Defendants’ title is based upon two entries, one dated June 4-, 1842, the other in 1851, and both calling for the same 600 acres. These entries were surveyed in March, 1855, and on July 1st of that year the lands were granted. This grant calls for an east and west line of 436 poles, and nine links to a stake, in the edge of Keel-foot Lake. Defendant insists that this line is in fact 800 poles instead of 436. The grant is called the W. K. Harris grant No. 5881. The entry upon which it is based does not call for the lake, but merely for distance of 436 poles. The heirs of Harris conveyed the southern half of this grant to J. W. and D. K. Jackson, and the boundaries purport to contain 900 acres. The Jacksons con — 397 — veyed to Hutchison. Both these conveyances call to run east to the lake. The Harris heirs conveyed the north half 'of this granted land to Hornbealr, and that conveyance calls also to run to the lake, and to contain 617 acres. In 1842 W. H. Oaldwell made an entry calling for 800 acres. This was sold to Harris in 1848. -Some contention is made that the land in controversy is covered by this latter grant, but this is not the case as presented by the pleadings, which, allege that it is covered by the 600 acre grant. It does appear, however, that this 800 acre tract, although it also calls for the lake, does not reach the point which defendants claim by something near f of a mile. The whole strength of defendants’ contention is that their survey, grant, and subsequent title papers call for a stake in the edge of the lake, and this is construed to mean the channel of the lake, to reach which it is necessary to go some 900 poles, instead of 436, as the entry and grant call for. It appears from the evidence in the case that the boundaries or edges of the lake are shifting, and there are around its margin “shallows” or “scatters” consisting of channels, sloughs, and bayous, which are usually referred to as the lake, and during the course of the number of years covered by these title papers, some of “ these have filled up' as the result of overflows, and the margin of the lake has changed- It clearly appears that when the survey of this — 398 — land was' made, it would have been necessary to go some distance into tbe water by wading or boating in order to reach tbe limit claimed by defendants, but to stop at tbe distance called for in tbe grant and survey of 436 poles, defendants would not only obtain tbeir 600 acres, but would not conflict witb complainants’ boundaries. As before stated, it appears that defendants’ title was based upon two entries, one made in 1842 and one in 1857, and each purporting to embrace tbe same 600 acres. Between tbe dates of tbe original entry, and before tbe survey was made, to wit, in 1846, complainants’ entry was made covering tbe land in dispute, and this entitled them to a grant to relate back to tbe date of tbe, entry, nothing else being in tbe -way. If, now, tbe defendants, commencing at tbeir beginning corner, should survey a tract of land by tbe distance calls in tbeir grant, it would contain 600 acres, tbe amount called for in it, and still there would be no conflict. We think that tbe preponderance of tbe evidence sustains this view, and while natural objects will usually control corners and distances, still such objects must be fixed, stationary ‘ and well defined, and not subject to such changes as is shown by tbe proof in this case as to the margin of tbe lake. It has been held that a senior enter er cannot extend his entry by survey beyond the calls and amount of his entry as against a junior claimant. — 399 — Fly v. Lessee of E. Tenn. College, 2 Sneed, 689; Nolen v. Wilson, 5 Sneed, 339; Bleidorn v. Pilot Mt., 5 Pickle, 199. We do not find any satisfactory evidence of possession and actual inclosure and occupancy by either party of the land in dispute. It is said it was error to tax in the bill of ■ cost the cost, of the transcript in the case of Caldwell v. Wilson which was a link in complainants chain of title. It is said the final decree was all that was necessary. We think this contention not well made. If the decree alone had been offered as evidence, it could, and no doubt would, have been objected to because not accompanied by the record on which it was based. We are of opinion complainants’ entry must be treated as special, since it calls to commence at a natural object, a beech tree, the southeast corner of a twenty-acre entry No. 793, in the name of Wm. Owen, in Blount’s line, and also for corners of Geo. Oonrtrer’s occupant entry, all of which were then well known, and the boundaries now readily identified from the description. We are satisfied from an examination of the record and comparison of the calls of the entries and grants filed, and from an inspection of the plats in the transcript, as ■ well as the evidence of the witnesses, that there is no error in the holding of the Chancellor that the land in controversy is covered by complainants’ title papers, but — 400 — is not by defendants’, and that if there was an actual conflict, and the land was covered by the title papers of each, the title of complainants must nevertheless be considered the superior in law, and the decree of the Court below is therefore affirmed with costs.