In Shelby County v. Bickford, 102 Tenn. 395, it was held that records of other causes, even when used as evidence on a hearing of a chancery case, cannot be considered by the appellate court, though copied into the transcript, in the absence of a bill of exceptions, decree or other sufficient action to indicate that they were so used in the lower court. Citing Railroad v. Foster,88 Tenn. 671; Marble Company v. Black, 89 Tenn. 121. Much less could the appellate court consider such records when in no way does it appear that they were used in the lower court. We have hitherto considered this cause on the record herein and must continue to do so. Nor can we consider any statements made by counsel in the petition or brief as to what facts he knows, which are not shown in the record. *Page 534
It is insisted that the rule of stare decisis should be applied inasmuch as the Supreme Court has in several cases fixed the western line of grant number 4935 as contended for by appellees; that the court should be greatly indisposed in an independent litigation to re-open the question as to the location of the boundary line. According to the weight of authority, a title previously passed upon, although in a suit between other parties, will not be again examined and adjudicated in a case proceeding upon the same state of facts and presenting precisely the same question, in the absence of a showing that the former decision was manifestly erroneous. 2 Black on Judgments, sec. 603; Iron Company v. Railroad, 131 Tenn. 229. But we have no judicial method of ascertaining whether or not the case before us proceeds upon the state of facts presented in the former cases.
In Iron Company v. Railroad, supra, in which the indisposition of the court to re-open a question of title was manifest, the question involved was really a question of law, as it was the specialty of an entry. Here we have a question of fact as to the location of a boundary line.
In our former opinion we referred to the opinion of Mr. Justice Hall, then of the Court of Civil Appeals, in the case of Ellis Sparks et al. v. Sam Werner, as showing that in that case the court did not have before it the facts contained in this record as to the location of grant number 4934. We did not examine the record in that cause as it was not a part of the record in this cause, having not been heard or considered by the Chancellor. The opinion itself shows that it is not based upon such facts as are shown in this record.
Without reciting and discussing again the facts set forth in our former opinion, we will set forth additional facts herein testified to, and will discuss the contentions made in the petition to re-hear.
The appellees attach to their petition what purports to be a copy of entry number 4448 by William Hale, on which the grant to Haight is based. This entry is not in the record and cannot be considered. It is insisted that it is in the office of the land commissioner and is a public record; but the court cannot take judicial notice of such records.
The appellees in their petition reiterate the recitals in the Wiley P. Griswold grant, the Haight grant, and various deeds as to the location of the beginning corner of entry number 3165, the seven hundred twenty-acre tract, which is the key to this problem. But they ignore the fact that A. Higginbotham surveyed grants nos. 4934, 4935 and 4937, and we have held that it is not to be presumed that the same surveyor would survey these tracts so as to cause an interlap. It is argued that S.M. Griswold entered the seven hundred *Page 535 twenty-acre tract, also grant number 4937, and other tracts, locating the beginning corner of entry number 3165 at the pine claimed by the appellees; that the Wiley P. Griswold grant recites this pine as the beginning corner of entry number 3165; that S.M. Griswold was a chain carrier on the survey of grant number 4935; and that he could not have been mistaken as to the pine which was the beginning corner of grant number 4934, on which grant number 4935 is based for description. We have hitherto set forth the reasons for our conclusion that the fixing of the pine contended for by appellees as the beginning corner of the seven hundred twenty acre tract was a mistake, and in this we took all of these facts into consideration. We held that to hold otherwise would be to disregard the clear and plain location of the corners and lines of grant number 4934 as expressed in the grant and as fitting the marked lines and natural objects. We took the recitals of grant number 4934 as the basis and endeavored to apply to them the facts according to the preponderance of the evidence. We laid emphasis upon the recital in the grant, of the beginning as "a pine on Turpentine Branch" the beginning corner of entry number 3165. It is insisted that this may mean, "on the waters of Turpentine Branch," and that this would apply to the well-known pine contended for by the appellees, which was situated nearly four thousand feet from the place at or very near Turpentine Branch and which the appellants contend was the true corner. It is also insisted that because the record does not show that any pine stood at this latter place, it could not be considered as the beginning point. We know of no warrant in law for such an interpretation. The grant itself fixes the location of the land "on the headwaters of Collins River." When it specifies the beginning point it designates it as a pine on Turpentine Branch. The word "on," when used in a description of boundaries, is always to be understood as a term of exclusion unless there is something in connection which makes it manifest that it is used in a different sense. 9 C.J., 153.
In Talbot v. McGavock, 1 Yerg., 263, the entry or preemption called for the corner to be "on a dry branch leading to the dry pond." The tree mentioned as the corner was found to be on a small branch about forty poles from the mentioned dry branch and emptying into it. This was held to be a special entry. The question there was merely that of identity of the small branch with the large branch. Both were dry branches. The tree was on the small branch, not some distance away from it. It is unreasonable to think that the surveyor would designate a tree nearly four thousand feet away as being on Turpentine Branch. It is true that it was much nearer to a small tributary of Turpentine Branch, but it was on a ridge about a quarter of a mile from the very source of *Page 536 the small tributary. It is true that no pine is shown ever to have stood at the precise point on Turpentine Branch insisted upon by appellants, but we cannot conclude that no pine stood there in 1837. If the pine insisted upon by appellees was not the true corner of the seven hundred twenty-acre tract and therefore of great number 4934, the recitals relied upon as conclusive were either made by mistake or by design. It is very difficult to conceive of a competent surveyor running the north and south lines of grant number 4935 about eleven hundred poles long and then describing them as nine hundred twenty poles long. It is significant that when he came to convey grant number 4935 to Frederick Schwoon, Sr., in 1882, Moffitt, the executor of Hill, gave the distance of these lines as only nine hundred eight poles, and this was exactly the length of the north line of grant number 4934 as recited in the grant.
We have not overlooked the testimony in the record that certain old residents of the neighborhood pointed out the pine, insisted upon by appellees, as the corner of grant number 4935. Such hearsay testimony is admissible when the statements were made while no litigation was pending concerning the land; it is evident that this information is finally traceable to S.M. Griswold. It is, therefore, of no greater value than what he said and did concerning this location.
The appellees began all their surveys with the known pine insisted upon by them. They relied upon their right to do this because of the recitals in the entries and grants aforesaid. They did not show any marked line running southward from this pine nor any hickory corner at the end of said line. They can only account for the reference to crossing of Rains Creek at 560 poles as a mistake. Such a conclusion can only be arrived at on the basis of other elements making it virtually impossible. It is not reasonable to think that Higginbotham would designate a distance as five hundred sixty poles, when in fact it was eight hundred fifteen poles, that being the distance to Rains Creek from the pine insisted upon by appellees. The difference is too great to be accounted for on the ground of mere mistake. The appellees insist that if the seven-hundred-twenty-acre tract were located as found in our former opinion, it would be described as on the water of Rains Creek, which flows through it, instead of on a creek known as the Turpentine Branch, near the tar road; but in either location Turpentine Branch would flow through this seven-hundred-twenty-acre tract, and the Tar Road would also go through a considerable part of it.
It is insisted that to locate the southwest corner of grant number 4935 according to the appellants' contention would be to lessen the area of the tract as called for in the grant, to such an extent that it *Page 537 would be a calamity. This would be unfortunate but it would not control. What we have endeavored to do was to ascertain the location of the lines and corners as fixed by the surveyor on the ground. If the contention of the appellees were sustained the northern and southern lines of grant 4935 would be 1099 poles, when their deed calls for 908 poles; and this difference is greater than any loss due to upholding the contention of the appellants.
The record in this cause discloses several surveys made by the surveyors who testified. Counsel for the appellees has in their petition given much space to the discussion of the earlier surveys and depositions based thereon. It appears that four surveyors together made a re-survey of the land in controversy. All of them thereafter testified. Three of them, Grayson, Clendennon and Robinson, represented the appellants. The other, Alexander, represented the appellees. As the Spong grant calls for the Griswold tract of 5,000 acres (grant number 4934) as its eastern line, these surveyors started with the southwest corner of the Woodlee tract, as the southeast corner of this tract is the beginning corner of the Spong tract as recited in the grant. No question is made as to the location of the Woodlee tract. They found the south line of this tract marked. From the southeast corner of this tract they ran east 72 poles, as recited in the Spong grant. The next call in the Spong grant, is "then north with Griswold's 5,000 acre survey 88 poles to pointers." The next call is, "then west with Daniel Fult's survey 45 poles to white oak." Mr. Alexander testifies that the said distance of 88 poles is too short; nevertheless, the location of the Fults tract is not in dispute. Alexander testifies that the distance of 72 poles from the southeast corner of the Woodlee tract would reach a point about 20 poles east of the western line of grant number 4934 as contended for by the appellants; but it is evident whether the distance is 72 poles or not, the southeast corner of the Spong grant was intended to be at a point in a line which is an extension of the west boundary line of grant number 4934. The surveyors found in that line a hickory marked as a corner with two very old hacks. They reversed the call by going northward to Turpentine Branch. From a point very near Turpentine Branch they ran southward and crossed Rains Creek at 558 1/2 poles. Mr. Alexander said that he found no marks along this line, but the other surveyors testified that they found trees marked with two very old hacks at points along this line from the Fults tract, up to and within a few feet of Turpentine Branch. The rule as to the prevalence of positive testimony over negative testimony would seem to govern this conflict. It is insisted that these marks are marks of what are known as the line of the Colony lots. There are frequent references to the Colony lots but this record does not show *Page 538 what the colony lots were. On the other hand the evidence is that the colony marks are three marks instead of two.
Appellees contend that because the southeast corner of the Spong grant at 72 poles east of the corner of the Woodlee grant would place the west boundary line of 4934 twenty poles east of where it is located by the appellants, the calls for the Griswold line in the Spong grant are too unreliable to be considered; but the call for the eastern line of the Spong grant running from its southeastern corner is the Griswold line wherever that may be. If there was such a line the Spong grant would follow it whatever might be the distance along its southern line.
In the line south of the Fults tract the surveyors found the hickory marked as aforesaid and from this point eastward the line was marked to what is known as the Pickett field. This is agreed to by all of the surveyors. They agreed as to the southeast corner of grant number 4934. In our former opinion we have shown that the line running northward from this corner fits the road and the creek at the distance respectively prescribed. In their last depositions Alexander and Grayson agreed on the location of the northeast corner of grant No. 4934; that is, Alexander said that Grayson's last map showing the eastern line and the northeast corner is correct. The last survey followed the marked line instead of the complement of poles, and this led the surveyors to the point six poles west of Fall Creek from which the lines run in four cardinal directions. In the interpretation of this record we consider primarily the last survey and the testimony based thereon. Much is said as to the previous testimony given by these witnesses, but we think that the last survey and the testimony based thereon furnish clearer evidence of the true locations. We have hitherto described the two Tate grants lying east of grants nos. 4934 and 4935; and we have called attention to the fact that there is a marked line running eastward separating these two Tate grants, beginning at the point agreed upon as the northeast corner of grant No. 4934. It is impossible to ignore this fact because the Tate grants are based on this as the beginning corner.
If the west boundary line of grant no. 4934 is the line contended for by the appellees, grant No. 4934 would include the Spong and Woodlee tracts. The Spong tract was granted in 1841. The entry upon which it is based is not shown in the record. It was dated September 23, 1839.
Another basis for our conclusion as to the location of the beginning corner of entry 3165 and grant No. 4934 is as follows:
The east boundary line of grant No. 4937 (surveyed by Higginbotham) is undisputed. The recitals in this grant do not call for any lines or corners of entry 3165 or grants 4934 or 4935. And yet *Page 539 the east boundary line of grant 4937 runs right through the point on Turpentine Branch insisted upon by the appellants as the beginning corner of grant 4934. This cannot be a mere coincidence. Again, the call in the Spong grant for the west boundary line of grant 4934 refers to a line which is this east boundary of grant 4937 extended southward. The call in the Spong grant for this line and the call in grant 4934 showing this line as crossing Rains Creek at 560 poles are consistent with each other, although they are in different instruments. The call in the Spong grant for the Griswold line (grant 4934) locates the Griswold line as this east boundary line of grant 4937 extended southward. This call in the Spong grant, the distance to Rains Creek given in grant 4934, and the undisputed location of the east boundary line of grant 4937 are facts shown independently of each other, and they are consistent.
The testimony of the appellants' surveyors is that from the point on Turpentine Branch, which they claim is the true corner, eastward to the point six poles from Fall Creek, the other corner, there is a line marked by two sets of marks — one being two hacks and the other three hacks. The two hack marks are very old. Some of them are so decayed that the age cannot be counted. This is not denied by Mr. Alexander, nor by any other witness. These series of two hacks cannot be marks of the colony lots. It is insisted that the marked line running north from the northeast corner of grant no. 4934 is a line of the colony lots. As we have said, the record does not show the location of these lots by any map or instrument. The testimony of Clendennon and Grayson is that these marks are in two sets, the older marks being two hacks. It is further insisted that the marks running west from this corner are marks of Nusbaum's tract, supposedly a colony lot. This is met by testimony that this line runs about the middle of the colony lots. Robinson testifies that the gum relied upon by appellees as the northeast corner of grant No. 4935 is not marked as a corner. We do not find any testimony showing that it is so marked. We are not primarily concerned with the length of the east boundary line of grant No. 4935, but we are compelled to take into account this evidence as to marks along the line and the marks on the other gum showing that it is a corner. If it is the corner of colony lots instead of grant No. 4935, the record does not show it.
It is insisted that the court is in error in holding that if there were an interlap, a possession had to be on the interlap because a younger grant line cannot restrict the possession on an older grant, but the older grant, wherever located, extends to its boundaries regardless of younger grant lines and interferences of younger grants. *Page 540
The case of Elliott v. Cumberland Coal Coke Company,109 Tenn. 749, is cited as authority for this position. We are of the opinion that this case is the authority for the contrary position as set forth in our original opinion; nor is the case of Ernest v. Little River Land Lumber Co., 109 Tenn. 427, in conflict with the holding of this court.
It is insisted that the court was in error in finding that the possessions of the appellees, known as the Sparks and Counts possessions, were inside of the Dykes tract. We have only to say that this finding of the court was predicated upon admission to this effect by the defendant Schwoon on his cross-examination.
We adhere to our finding that the "wire lot" possession was in the nature of an illusory possession, and that the record did not show it had been maintained for the requisite period prior to the filing of the bill. We examined this question of fact very carefully and discussed it rather minutely in our original opinion.
This case has received the most careful and painstaking consideration of all the members of this court. It is complicated and we have endeavored to find the facts according to the preponderance of the evidence in the record before us, not in any other records. We have been guided by well known rules and principles long ago laid down, and we have no disposition to depart from them. While we do not know what facts were presented by other records in cases involving the location of these lines, we suppose that those records did not present all the facts which have been set forth as in this cause. We have given to this case our most earnest and thorough consideration and we see no valid grounds upon which we should depart from the conclusions which we have already reached and set forth in our former opinion.
For these reasons the petition to re-hear is overruled at the cost of the petitioners.
Faw, P.J., and Crownover, J., concur.