340 S.W.2d 923 | Tenn. Ct. App. | 1960
The original bill in this cause was filed by Leonard Doss and Blanche Lee Doss against Tennessee Products & Chemical Corporation for the purpose of enjoining the defendants from cutting trees and strip mining coal on the land described in the bill, and to recover for the value of the coal and timber, and the damage done to the land by the strip mining. The bill alleged the complainants were the owners in fee of the land under a deed exhibited to the bill and relied on the
In the court below, and here, the defendant has responded to the suit as though it were in ejectment, which it is not. It is a suit for an injunction to restrain defendant from damaging complainants’ property and from continuing in its trespass thereon, and to recover damages on account thereof. The original bill avers title and possession to be in the complainants. This action is in principle similar to the law action of trespass quare clausum fregit, and complainants are entitled to recover if they can show either actual possession of the land in question, or a valid legal title carrying with it constructive possession, and a trespass by the defendant without justification.
In the record title to the W. J. Morgan land it appears that in September, 1914, D. T. Layne and Lula Layne conveyed the surface interest in the Morgan lands to J. B. Morgan by a deed which described the south boundary line of the lands conveyed as “Beginning at a spruce pine on the bluff of the mountain near where the waters pour off, being A. Higgins Northwest corner; thence south 62 degrees, east 41 poles to a chestnut in the line of the T.C.I. and R.R. Co. ’ ’ In the record title to the Doss tract, it appears that in 1938 D. T. Layne, et ux., conveyed the tract to John Brown, who conveyed it in 1943 to Herbert Caldwell, who conveyed it to complainants in 1949. In complainants’ chain of title, the north line of the tract of land, the line separating the lands of complainant and defendants is described as beginning “on a rock in Higgins G-ap, going eastwardly to an oak corner in line of Tennessee Coal Iron & R. R. Co. then following the Tennessee Coal Iron & R. R. Co. line southwardly;”- "When the complainants returned from Baltimore, and found the strip mining activities being carried on upon what they had always understood was a portion of their tract of land, they employed a surveyor, W. P. Gibson, with
It can be stated without further analysis of the proof, that if complainants’ north boundary runs north 72 degrees east to the hole in the T.C.I. line, rather than south 62 degrees east to the same line, the strip mining activities admittedly carried on by defendant, acting under the lease from Morgan, were carried on upon complainants’ land and 5,000 tons of coal were mined therefrom of the reasonable value of 35 cents per ton.
The error assigned is to the effect the court erred in holding complainants were the owner in fee and entitled to the possession of lands described in the original bill, and in decreeing the location of the same upon the ground so as to include the lands whereon the defendant had mined and removed coal under lease from W. J. Morgan, and erred in overruling defendant’s plea of title to said lands in its lessor, W. J. Morgan, and entering judgment against it and taxing it with the costs. This assignment of error is supported by some five primary contentions which we will discuss in the order in. which they are made.
First, it is said the assignment of error must be sustained because the great weight of the evidence proved a valid subsisting legal title in W. J. Morgan, supported by actual possession for almost twenty continuous years, to the lands which defendant had under
Defendant’s second contention is that complainants failed to establish a valid legal title, under possessory statutes, to the land where the mining operations were carried out and that the complainants also failed to prove any possessions within the disputed area and failed to prove continuous possession for seven years or more. This contention must be denied for the reasons heretofore pointed out, that where complainants prove they are in possession of the land in question to the north 72 degrees east boundary line, as the Chancellor held and as we hold, and where defendant fails to prove a valid subsisting legal title to that particular land which would authorize his peaceful entry thereupon, then in an injunction and a trespass suit of this character complainants are entitled to recover. Complainants are not required to establish a valid subsisting legal title to the land, actual possession thereof and absence of valid legal title in the defendant is enough. Union Tanning Co. v. Lowe, 148 Tenn. 407, 255 S. W. 712; Pepper v. Grainesboro Tel. Co., 1 Tenn. App. 175.
Defendant’s fourth and final contention in support of its assignment of error is that both the complainants and W. J. Morgan deraign title from D. T. Layne, and by conveyances out of Layne and by operation of law, the common boundary line between the two tracts of land-was established to run from a spruce pine at Higgins Gap south 62 degrees east to the T. C. I. & R. Co. line. We think that this contention must be denied for reasons we have already stated. In a suit involving the location of a boundary of rough mountain land the question as to the true location of the boundary is not always answered by reference to the calls for courses and distances in the title papers. In fact, it is the rule that in locating á boundary, calls for courses and distances are considered last in order of importance. The question can only be answered by going upon the land and determining the line.that actually separates the two tracts of land as that line may be established by monuments, by recognition and acquiescence, by reputation, by the exercise of dominion over the lands by the respective parties on either side of the recognized line resulting in a situation having the elements and semblance of an estoppel, by agreement of the parties, and other means. To a degree, several of these various means of determining a line
The north, 72 degrees east, line is also sustained by the preponderance of the evidence that this line was recognized and acquiesced in by W. J. Morgan. It appears Morgan sold his timber on the tract north of the line and the purchaser cut to the north, 72 degrees east, line, and that complainants sold the timber on their side of the line and the purchaser cut to the same line. Prior to that, Herbert Caldwell, complainants’ grantor, sold the timber and the purchaser cut to the north, 72 degrees east, line with the knowledge of Morgan and there was no dispute about it.
When complainants returned from Baltimore and learned of the strip mining being carried on by defendant upon land they thought they owned, complainant Blanche Lee Doss, who had at one time been an employee of W. J. Morgan, called on him to discuss the trespass and when, during the conversation, in order to learn Morgan’s opinion as to the correct location of his southeast corner, complainants’ northeast corner, Mrs. Doss asked Morgan how far it was from his tipple, admittedly located upon his lands, to the corner in controversy, he stated it was something like 100 to 150 feet. This would have placed the corner approximately where it was established by complainants’ surveyor. Morgan admitted this on cross-examination but undertook to explain by saying that he did not have a survey on the distance of
Finally, it is important to mention that the south 62 degrees east line contended for by defendant gave no evidence by marks, or blazes or other customary signs that it had ever been established or accepted as the line, an unusual condition if in fact it was the line.
There is no dispute but that approximately 5,000 tons of coal were removed from the lands of complainants and that a reasonable value thereof was thirty-five cents a ton, so that the amount of the decree is unassailable. The decree of the Chancellor not being contrary to the preponderance of the evidence, nor to the law, the same is affirmed.