On Petition for Rehearing. The case is again before us on a petition for a rehearing and for a different findings of facts, in which it is insisted that the Court erred in failing to understand the locations of the possessions and the maps, and in holding that complainants had failed to establish title by adverse possession, and in dismissing the bill.
The petitioners have again gone over and discussed all the questions previously raised, but have added nothing new. However, we have again gone over each question raised, but we must adhere to our former opinion.
We think the parties have entirely failed to prove adverse possession as required by law; and we repeat that the evidence on that subject is vague and confusing, and the possessions are not located on the maps with any precision. For instance, they strongly insist that they established title by adverse possession under the Jim Beaty possession. Fate York testified that that possession is where Jerry Gawney lived, but counsel say that he is mistaken and had the possessions confused. Shade Beaty says this possession was inside the tract sold by Choate and Wilson to Jess Roberts. What connection *Page 23 this tract had with the land in controversy is not explained, and his testimony on this point doesn't seem to be denied. If the Jim Beaty possession was on another tract sold off, and not a part of the land in controversy, it cannot help complainants.
But as stated in our original opinion it is not shown under whom they held possession, and whether the people who rented to them had any authority to rent the land.
We do not think complainants' evidence arises to the dignity of evidence on adverse possession. Simply saying one "held" under somebody or "claimed" under somebody is not evidence of adverse possession. They must go further and show that the possession was actual, visible, continuous, exclusive, hostile, and notorious, and under a claim of right. Whenever any of these elements is lacking, no title by adverse possession can ripen. 2 C.J., 50, sec. 1; 3 Thompson on Real Property, 630, sec. 2515.
The possession must be hostile, with a claim of right and an intention to hold adversely, and must be exclusive. 11 Michie's Tenn. Dig. (2 Ed.), 154, secs. 219-223; 3 Thompson on Real Property, 640, secs. 2521 to 2524. None of these elements were proven. The burden of proof was on complainants, and evidence of adverse possession is strictly construed, every presumption being in favor of the true owner. Buchanan v. Nixon, 163 Tenn. 364,43 S.W.2d 380, 80 A.L.R., 151.
There is only one question that gave us any concern, and that is, as to Beaty's disclaimer in his answer, but upon a reexamination of the record we find that Beaty in his answer pleaded adverse possession, alleging that he was in possession for a period of more than seven years before the filing of this bill against them: "The boundaries of land claimed by the defendants and which they have been in possession for more than seven years and which possession has been exclusive adverse, open and notorious, to the full extent of the boundaries covered by a grant #4241 to Peter Campbell, dated 5th day of Jan. 1835, and a deed from Bruno Gernt to S.H. Beaty, dated on the ____ day of 1911. A description of boundaries as follows:
"First tract: On the south by the south boundary line of the Richard Winningham tract, on the west by the Alvin C. York highway, on the north, by the north boundary line of the Richard Winningham tract, on the east, by the east boundary line of the Richard Winningham tract.
"Second tract: Starting at an oak near the mouth of Westmoreland branch; thence west 275 poles to a chestnut; thence south 320 poles to a hickory; thence east 275 poles to a white oak; thence north 320 poles to the beginning, said tract lying partly in the Huddleston grant and partly in the Thomas Turner Grant, which grants overlap on the southern part of the Thomas Turner tract, this tract being fully described *Page 24 in the deed from Bruno Gernt aforesaid and recorded in book ____ page ____ of the Register's Office of Fentress County."
He further alleges in his answer that: "These defendants deny that they are in possession of any other lands described in complainants' bill except that described in the two tracts above set out, or that they are claiming title to any other land except as to these two tracts, and they here and now disclaim to any and all described in complainants' bill with the exception of the two tracts hereinabove described."
They later amended their answer and disclaimed any and all lands south of the south line of the Peter Campbell grant 4241.
Many of the calls of said above described tracts are confusing, and there is no evidence in the record as to the extent of the boundaries of the above two tracts, except, that they are within the Peter Campbell grant No. 4241, and cover the land in controversy.
It is clear that Beaty was claiming to the extent of the boundaries of the Peter Campbell grant, and was, when he filed the answer, claiming the two tracts described in the answer, but it doesn't appear whether they covered all the possessions. Hence, there is nothing in the question of disclaimer that can help the complainants, as they must rely on the strength of their own title. They must put their finger on some part of the Campbell grant disclaimed by Beaty in his answer, but it is not shown in this record.
It results that the petition for a rehearing is denied.
Faw, P.J., and Felts, J., concur.