74 Tenn. 108 | Tenn. | 1880
delivered the opinion of the court.
This was an action of ejectment, in which the verdict and judgment were for the defendants, and the plaintiffs appealed in error.
The counsel for the plaintiffs suggests, rather than argues, that the facts as set out in the bill of exceptions do not sustain the verdict. The burden of proof was on the plaintiffs, and we are unable to see that there is any preponderance of evidence in their favor, and there is certainly no such preponderance as will justify this court, under its settled rule, in interfering with the verdict.
The defendants in the plea disclaimed all title to the land in the plaintiff’s declaration, except so much
The plaintiffs assign error upon the following charge of the court to the jury, made by the trial judge at the instance of the defendants:
“ The court states to you as a proposition announced by Judge Green, in the case of Gilchrist v. McGee, 9 Yer., 455, 458, that scarcely any two compasses concur precisely in the direction of the needle. Besides, it is matter of science that the magnetic needle constantly fluctuates or changes. If the difference in the lines claimed by plaintiffs and defendants may be explained by this constant change of the needle, the jury may have to [look to it] in determining the place at which the dividing line was run. The precise place where the dividing line was originally run must control, although it might not correspond with the course indicated by the needle. This principle applies to either of the lines in controversy.”
The objection to this clause is, in the first place, that it charges as law a proposition of Judge Green merely used in argument in the course of the opinion ■delivered by him in the case cited. But his Honor does not lay down the proposition as law. He is calling the attention of the.jury to the variations of the needle with a view to the point of law which he does lay down, namely, that it is the original line as run which must, control the rights of the parties, if those rights turn upon the title acquired under the grant, and that they may look to the “ constant ■change” of the needle in determining this point. The
“ The compass varies, and the magnetic needle has pointed west of the true meridian for the last hundred years, but no two of them point alike. I did not calculate the variation of the needle at the date of the grant or survey. It is constantly fluctuating.”
If his Honor had stated the testimony of this, witness, as he had' the right to • do, and said to the jury, if you find from the testimony that no two-needles point alike, and that the needle is constantly fluctuating, then I charge you that you may look to-the constant change of the needle in determining the place at which the dividing line was run, for it is this place which must control, the charge, it is clear, would have been unexceptionable so far as this point is concerned. It is the “ constant change” which the jury must look to, and this change is, it is conceded, matter of science. The fact, as stated by Judge Green, that “ scarcely any two compasses concur precisely in the direction of the needle,” or, as the plaintiff himself more tersely puts it, that “no two of them point alike,” is not one which, under the charge, the jury were required to look to. And if it had been, we cannot see that it could have prejudiced the plaintiffs. The uncertainty of each particular needle might, for aught we can see, have been a fact the consideration of which by the jury was as advantageous to the plain
This particular clause of the charge is said, by the learned counsel of the plaintiff, to be confused and unintelligible. It is obscured by a clerical omission, in the original charge as embodied in the bill of exceptions or in the copy contained in the transcript, of the words “look to,” or the word “consider,” or some other equivalent expression. Supplying the missing link, as we have done by inserting the 'former words in brackets, the sense is plain and the' law sound. The new transcript, to which our attention has been called since writing the foregoing paragraph, shows that these words were used.
It is next insisted that the court undertakes to state to the jury the real controversy. What his Honor does say is, that when the jury come to the real controversy, they soon learn from the testimony and plats used in evidence, that the conflict between the parties is about certain strips of land in the eastern, northern and southern boundary lines of the plaintiff's tract described in his declaration. The learned counsel tells us in his brief, and his client proves, that the questions in dispute Avere as to the respective boundaries of the lands of the litigants, and that the conflicts are shown by the diagrams or plats exhibited. And the bill of exceptions concedes, as we have seen, that the defendants had, by adverse possession, a good title to the land included in their, plea on the western boundary. Obviously, if there is no controversy on the western boundary, the court might
The next error relied on is in reference to the form of the verdict. To understand this part of the ■charge it is necessary to premise that the plaintiffs are W. T. McColgan and Nancy McColgan, and the declaration contains three counts, the first count claiming the land as belonging to both . plaintiffs in fee, the second count as- belonging to W. T. McColgan in fee, and the third count as belonging to Nancy McColgan during life. The defendants stated distinctly upon the face of their plea the extent of their claim and possession: Code, sec. 3240. The proof of the plaintiff, W. T. McColgan, shows that the controversy was touching certain strips of land along the boundaries of the tract described in . the declaration, and specified in the -diagram of plat introduced by him in evidence. Under these circumstances the court instructed the jury that if they found in favor of the plaintiffs they must as- • certain the title the plaintiffs or either of them had, and set out and describe in their verdict the boundaries of the parcels of land recovered 'from the defendants.
The controversy was partly as to the beginning ■corner of the grant under which the plaintiffs claimed, the calls being clearly insufficient to make a good special entry, and partly as to the lines originally surveyed and marked. In addition, there had been adverse possession by the defendants of portions of the land along the boundary lines of the land claimed ■ under enclosures, which was conceded to be sufficient
“If such possession was disturbed by the act of war by an army quartering thereon, who burned the fence, such interference. would not arrest the running of the statute, if it be shown that the defendants resumed their actual possession as soon thereafter as they reasonably could do.”
This clause in the charge is excepted to, but surely the temporary destruction of the fences by an army, or an accidental fire, would not arrest the running of' the statute, if the fence be replaced in a reasonable lime. If the plaintiffs desired a fuller charge on the-subject they should have asked for it.
The trial judge, after charging the jury upon the-conflict between the parties on the other boundaries, comes to the controversy touching the eastern line, the strip there claimed by the defendants having been recently enclosed, and being, as he says, the only real line of contention. He tells the jury that if they find that the original line of the survey running north from the- river leaves the new fence entirely on the side of the defendants, the plaintiffs’ action must wholly fail. This is objected to. But His Honor plainly means, if you find the other matters of dispute about which X have charged you, in favor of defendants, and also this, the real matter of contention, also in their favor, the plaintiffs’ action would wholly fail. It is not objected that the trial judge treated the contest on the ast line as the real subject of contention, and the
After charging fully upon the right of adjoining •owners of land to establish a conventional line between them, about which part of the charge there is no ex- • ception, the court said: “ If the ’ respective owners made a lane between them, and claimed to the lane •on either side, the presumption would be that the •dividing line was in the middle of the lane.” The •objection made to this clause of the charge is not well taken.
The court instructed the jury that if they found a "verdict for the defendant, they should further find a' special verdict in favor of the defendants that they have title to the lands described in their plea, and a special verdict in favor of the plaintiffs to the land •described in the declaration as to which the defendants ■by their plea disclaimed all title. His Honor thought that this should be done in order to quiet their titles and prevent litigation, and was justified by the provisions of the Code. The jury having found a gen- • eral verdict in favor of the defendants, did accordingly
If the plaintiffs prefer, the affirmance will be simply-of the judgment in favor of the defendants.