Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1858-11-04

Opinions Of the Supreme Court Of thsState
OF Tennessee, delivered at KnexVIlIe, az
September Term, 1885,
Green vs. Hsnderson's Heirs.
This was an action Of ejeetmeni, brought BY Mary
Henderson, in her lifetime against toe present PLAN
tifs ia error The plaintiff died, pending the suit.
and IL was revived in the name of her heirs at law
The parties each claimed the land, sued for in this
action, under the different grams, between which
there was a col fict The grant 10 Thomas lender
son, under which the print derived title, bears
date the l9ih Of September, 1926 The defendant
claimed under prior grant TO Peter Sampsei bear
ing date the 29th August. 1924. The younger grant
to Henderson covered, in part The same laad en-
braeed in the grant to Sampsel In 1926, Thomas
Henderson, the younger grantee, entered upon and
took actual possession, by clearing and fencing
field OF several acres Of part Of the land covered
by both grants; and he and those claiming under
him, have had an unbroken possession OF this en-
closure ever since, claiming under the aforesaid
grsnt, adversely to all other pers rs The elder
gpTantee, Sampsel and those deriving tile under
hin, never bad actual possession Of any tr Of the
land covered BY Doth grants The defendants proved
however, that perhaps about the year lS4O, one
Hicks, who claimed under Sampsel, had cut wood
and burned several ''cOsl pits, on thai part Of the
land; and that tor a period Of about thirty years
past, those claiming uuder SamPsel we're slso in the
habit, occasionally, of cutting '6reWOOd" on that
part Of the land. The plaintiff recovered, and the
case is brought to this Court by appeal in error
The jury were instructed in ,rdsncd with the
principle declared in the case Of Waddle vs. Stuart
4 Sueed 534-542-thst an exclusive adverse D yssss
sion for the period Of years, within the limits
Of the interference, BY the younger grantee, would
vest him with indefeasible title in tee simple CO.
extensive with the boundaries Of his grant, and op-
crate eXinguIsbment, pro tanI0 Of the elder and
previous superior title But it is argued for the
plaintiff in error, that entry upon the land cover
ed by both grants, By the party having the elder
aud better title, within the period Of seven years
from the commencement Of the adverse possession
under the grant, viii have the effect to neuirsllzs
such adverse possession, and arrest Che running OF
the statute OF limitations We are not prepared to
assent to the correctness Of this proposition in its
full extent We are of the opinion, as stated in
NorVsE vs.. GTay's lessee, SWsn's Rep 96-lO7 that
peaceable entry, in such case BY the riehtful
owner, would give him legal seizn Of all the land
within the interference Of which they younger
grantee or Wrongful possessor, had not previously
acquired in the actual possession, by enclosure or
other ereetions But such entry would be no 0usfsr
Of the actual possession Of the Wrong-dOer, and.
could not, therefore, have the effect to neutrsizs
the adverse possession or to suspend the running Of
the statute 10 the part Of the land actually occu
pied by the wrong doer. This effect, under the
statute, could only be produced BY suit at Law or
in equity, efectuslly prosecuted As far, however,
as there was no actual adverse possession, the law
would adiudge the possession 20 be 10 the party
having the tils-both parties having sotual posses
sion But the more important question, and the one
upon which the present case turns is in regard 10
the kind Of possession that will be sufficient to neu-
tralze q wrongful adverse possession The counsel
for the plaintiff in error insists that actual pos
session, by occupancy, cultivation, residence Is
not necessary such visible and notorious acs Of
ownership, generally exercised over properly
by the rightful owner Of the SOIL will be sufficient
eountersoil such adverse possession BY trespas-
ser This reasoning is plausible, and not without
authority to support but it is not sanctioned by
the course OF Judicial opinion in this State. In /
reason it would seem, that the possession NECESSARY
10 neutraliz an &C ual adverse possession ought to
be similar in character and equivalent in force
with the possession, the legal effect Of which /
Is sought to be thereby destroyed And ac>
by the course of decision with u.s. 4
me exercise Of dominion by repeated disconnected 4
acts of ownership is not sufficient Such acts are /
souivOed They furnish no certain Indication of /
.he assertion Of claim as Tightful owner, and are ]
)flen, in fact done By naked tTespassers. The
possession, to be efeciuaf, must be /
actual visible possession BY enclosure. occupation
)r residence; in other words like kind, in legsl
eject, with that sought to be defeated In deter
mining what is actual possession reference must
If course be had the nature and situation Of the
properly, the to which il is adapted, and the
oFt of possession of which it is susceptible. There
nay be in Law an setual possession or what is re-
,arded as equivalent without actual occupation, If
be property from its situation and nature be not
uited TO the ordinary purposes Of cultivation, or
Improvement, or enjoyment See West
IS. Lanier, 9 Humph. 76: D. AneeI on Linn, ch 81.
L follows that the acts Of ownership relied upon By
he plaintiff in error to nsuralize the adverse pos
essiOn on the other side, are unsvailing for that
,urpose
Judgment affirmed. Mckinney.