104 Tenn. 401 | Tenn. | 1900
The bill in this ease is of a somewhat mixed character. In some respects it is
We are of opinion the bill cannot be sustained as an ejectment bill, because the title of complainant is not deraigned from the State or from any common source.
It cannot be sustained as an action of forcible entry and unlawful detainer, as the proof, we think, fails to show that complainant was in such possession when the suit was brought as would warrant the action. There is some proof that he bad stretched a single wire across the narrow strip of land, but this was not such inclosure or possession as the law contemplates, and even this appears to have been put up after the defendant had built his fence inclosing the strip, according to' the weight of the testimony.
The case has, however, been treated in this Court upon the idea that it is to fix the corner and boundary lines between these parties, and we proceed to consider that view of the case.
Defendant claims under what is called the Patton title, which calls for a north line running
After hearing the case in . the Court below, the Chancellor said that he was unable from the proof to come to any conclusion as to where the real dividing line was between the parties, and suggested that Mr. Ridley, a surveyor who had been examined for the defendant, should go upon the lands and survey them, stating that he considered Mr. ,Ridley the most competent surveyor attainable. This was acceded to by defendants, but after consideration complainant declined, on the ground that in opinion of counsel no survey was necessary, and he did not consider Mr. Ridley a competent 'surveyor, but suggested the county surveyor if one must be had; thereupon the Chancellor stated that
It appears that this east and west line has been in controversy before, and a suit was brought by J. T. Olay, a brother of complainant, and holding under the same title as complainant, against the defendants to this cause. That cause ^ was heard in this Court, and it was determined that this ■ east and west line was 323 poles long, and went ' to the point now claimed by defendants. While the parties complainant were not the same in the two cases, they did hold under the same title papers, and the question of the length of this east and west line was involved, and decided contrary to the contention of the present complain
We are of opinion complainant has not made out his case, and the bill is dismissed at his cost.