Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-04-17

oFElclAL
Rnfnfons eli the supreme court OF s tne
Sf-afe Of Tcmnessees AT hnSARAAss sep
0embsr Term 1880

Rpinions ef she supreme court OF S tne
state Of Tcnnessees at AAneNRAAAe' sep
fegnbsr Terms 1850
S~,..,,,- Ba,vssa i al Is. Addison Bowman ct al
This was an action Of ejecsment for tract OF
land lying in Claiborne county. g..
The nIsintiff claims under grant from the state
of Kentucky, issued in pursuance OF Ihs coieS ~
+ion agreed anon between Tennessee and hentucky,
IN 800 adjusting the boundary line between these
two STATED. the land in controversy being situated
betyveen Walkers line and latitude 80 degrees 80
7f ,,nt was issued on the 18th Of July 1858, to
Cornelius Bowman. the plaintiff; and purports to
be for 1900 acres Of land surveyed on the 10Th OF
September. 1896 1T appears however that the ex-
terror boundaries Of the grant, as therein Defined
contain upwards of six thousand acres Upon tne
face of the grant and Immediately following the de-
scrpton of the boundary lines Of the land are these
words: "Platting out the lands previously surrey
/ ed represented to me- by the aforesaid Cornehus
Bowman, to be 1000 acres"
The surveyor who. in 1886. made the survey on
which said grant is founded, was examined, on the
trial and stated that when he made said survey II
was represented to him by said Bowman, that WIN
/ in the boundaries stated in said survey and grant
there were not less than 1900 acres Of lanes pre-
viouslv granted or held by fair legal surveys anu
! flat mon this statement of Bowman (which was
the only evidence he had he reported the c' " Oe
/ so in his certificate of survey.
/ Neither in the certificate of survey, nor IN lhe
grant is there anything to identity the Janus
/ !
Nor indeed is there anything IN the Whole $500
show that in fact, any portion OF the lahu
within the boundaries described IN salo sI@ai -
been previously appropriated ellhet W p"eCn'l
survey; except two tracts, one puI ce 'is al
fifty and the Otherone hundred and my ACRES iin
the said Bowman had procured to De surHeyeu IN
1894 but for which patents were not oDgileu uiIil
the 10th of December 1854
Thedefendants- who were in possession OF slllall
norton of the land within the exterior boundary Of
81. oarsar a
| commenced produced no title whatever 4,
Upon this state of the case, it was insisted Dy The
counsel for defendants on the trial tnat as II was
incumbent on the plaintiff to show Iegal u'LG ~
tbe- land sued Tor. and also to shsw thai
the defendants were npossessiOn OF some part oi
the land covered by such title; and as the plalntI
could have title to the 1000 acres eXcePted ou
of the grant, he could not recover IN TINS acuoi
: without showing afirmatively, that the lane
occupied by the defendants lay outside OF the boun
diaries of the 1000 acres excluded from his grant
and within the limits Of which, by his grant, he MAJ
riphtfuI legal title. And the court, concurrlng Il
this view Of the law, instructed the jury according
": and verdict and judgment were rendered for III
: defendants
tanned that in point Of fact any portion OF the IAN
: included in ithe boundaries OF the tourtee
: ! hundred acre patent had been previously al
: nropriated except the two small tracts OF .
| and $50 acres above mentioned. 1t may b
: ! true that the representation made by BOWhla
, | to the surveyor, that four thousand acres
d the land embraced by thesurvey had been preVlou.
= " surveyed was either an innocent mistake on NJ
Z mart or an intentional falsehOOd but whether tn
one or the other the result IS the same SO lar as III
= present determination Is concerned. Inc quesuo
y one exclusively between the State and the granite
with which mere tresspasser or subsequent ente
u err has nothing to do. The injury, whether con
= mited by mistake or fraud is against the State an
y can only be complained Of by the State and Ii I'll
State acquiesces and allows the grant to stand thel
can be no question but that, in court OF law,
= must be regarded as investing the grantee with
y legal title to all the land included by its bound
n r.ies not shown to be held by superior title. :
p between the parties in this action the question
= fraud or mistake is altogether irrelevant.
n In this view OF the case, the judgment OF the u
~ cuit Court is clearly erroneous. The plant
NJ having shown pra tacs legal title. and that Il
VI defendants were in possession of part Of the iaI
u covered by such title-was entitled to recover,
the absence of proof of better title in TIE defen
4 ants or outstanding in another, or some 9th
legal defence. Sec. I, Swans Rep, 333, $50
sTudCy1,ant reversed MCKINNEY.
n A trne copy. Test c. w. NELSON, Clerk.