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indorsement was in proof with waiver of , en notice of protest, but absolute in that redemand, protest, and notice on the part of gard. An arrest of judgment in such a case Waterhouse, as indorser.
is fairly forbidden by Acts 1911, C. 32  The suit was based on the note. That|(Thomp. Shan. Code, § 4902a1), which proinstrument was not copied into the declara- vides that no judgment shall be set aside for tion so as to set forth the waiver, but pro- any errors in procedure, unless in the opinfert was made of it, that being a formula in ion of the court, after an examination of pleading whereby the pleader professes to the entire record, it shall affirmatively apbring into court an instrument to be shown pear that the error affected the result of the to the court and to his adversary. It is true trial. that mere profert of a note does not make  Waterhouse, as appellant, did not see the instrument, the foundation of the ac- fit to preserve a bill of exceptions, incorpotion, a part of the declaration, when that rating the proof adduced. In that event, unpleading is tested for sufficiency by a de- der a familiar rule, we must assume that murrer. Insurance Co. v. Thornton, 97 Tenn. there was sufficient testimony to support the 1, 15, 40 S. W. 136. The court is confined judgment rendered against him by the cirto the face of the declaration in such test. cuit judge; in other words, that Waterhouse
 But a further rule of pleading is that, was found to be liable notwithstanding there when oyer is craved by the defendant and was a failure to present or protest the note granted by the court, the effect is to make and to give notice; and such liability could the instrument a part of the record, and the be consequent upon the asserted waiver in defendant may demur or plead at his option, the note when produced in evidence as the treating the note as incorporated in the dec- basis of the judgment. laration, as though set out verbatim therein. On the motion in arrest of judgment we
 If an element essential to the exist- should, under the acts of 1911, and do as-
Under Const. U. S. art. 1, § 10, cl. 3, pro906:
of Congress, enter into any agreement or com"Where a waiver of demand or notice of dis- pact with another state, the formal consent of honor is expressed in the instrument sued on, Congress to a compact between Tennessee and no allegation as to presentment or notice is Kentucky looking to the establishment of their necessary."
boundary line was not necessary, as such conAnd it has been held that, where the check sent might be implied. sued on is set forth with an indorsement
2. PUBLIC LANDS Cw170(3)-BOUNDARIES
COMPACT-GRANTS. across its face showing that payment there
A joint boundary commission, appointed in on was stopped, it sufficiently appears that | 1779 to extend the boundary line of Virginia payment of the check had been countermand- and North Carolina, running upon 36 degrees ed so as to preclude the necessity of alleg- to be due west, into Carter's Valley, and the
30 minutes north latitude, ran a line, supposed ing notice of dishonor. National Copper Virginia Commission ran a line, known as WalkBank v. Davis, 47 Utah, 236, 152 Pac. 1180; er's line, from thence to the Tennessee river, leavCitizens' Bank v. Millett, 103 Ky. 1, 44 S. w. ing an unsurveyed gap from Deep or Clear fork
to the first crossing of Cumberland river, which 366, 44 L. R. A. 664, 82 Am. St. Rep. 546.
line deflected and reached the river on 36 degrees Now the question arises: Is the case to be 40 minutes north latitude. A compromise agreedeflected adversely by reason of the fact ment was made in 1820, and thereafter ratified, that the note is brought into the record by to the Tennessee river and the line of 36 degrees
adopting the Walker line from Cumberland gap proof rather than by way of oyer granted? 30 minutes north latitude from thence to the MisWhat substance can there be to support a sissippi, whereby Kentucky yielded the land bedivergent ruling? It would seem that, if tween Walker's line and 36 degrees 30 minutes the note becomes a part of the record by agreed that all vacant land should be the prop
east of the Tennessee river, to Tennessee, which way of sworn testimony, it should not weigh erty of and subject to the disposition of Kenless in plaintiff's favor than when it is im- tucky. Complainants in ejectment claimed unported into a pleading of record by way of a der a grant from Tennessee in 1849, and defend
ants claimed under a grant from Kentucky in quasi fiction.
1880, the land lying between the Walker line (5) If, then, the proof had shown the note and a line on 36 degrees 30 minutes north latito contain the waiver, the motion in arrest tude. Held, that under the compact the Kenof judgment could not be sustained for the tucky grant was valid, though the land was in
Tennessee, and that Kentucky could not have reason that defendant Waterhouse's liability abandoned such right by mere implication or by would not be conditional upon his being giv- ) any conduct short of a clear and unmistakable
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affirmative act indicating a purpose to repudiate from Deep or Clear fork to the first crossing ownership.
of Cumberland river, a distance of about 97 3. Public LANDS (ww170(3)-ESTOPPEL-AFTmiles. Later surveys developed the fact that ER-ACQUIRED TITLE.
Since a state in granting lands conveys Walker's line deflected throughout to the without covenant, the doctrine of estoppel does north, owing to improper allowance for the not apply to a grant from the state so as to variation of the needle, and as a result the pass an after-acquired title, and such grant Tennessee river was reached near lati de of passes only the title the state then had.
36 degrees and 40 minutes, or more than 12 Appeal from Chancery Court, Claiborne miles north of the true latitude line. The County; Hugh G. Kyle, Chancellor.
discovery of this deflection led the state of Bill of ejectment by W. T. Russell and oth- Kentucky in the opening years of the nine ers against the American Association and teenth century to insist upon a correction others. From a decree disinissing the bill on and to stand for a reclamation of the strip demurrer, complainants appeal. Affirmed. from the state of Tennessee. After several
futile negotiations between the two commonFrank Park, Jr., of Jefferson City, and Chas. T. Cates, Jr., of Knoxville, for w. T. wealths covering a period of nearly two decRussell and others. Montgomery & Mont
ades, the Legislature of this state named gomery, of Tazewell, and Sampson & Samp- had been Chief Justice of Kentucky, and who
two of its ablest lawyers, Felix Grundy, who son, of Middlesboro, for American Ass'n and later represented this state in the United others.
States Senate, and was Attorney General in WILLIAMS, J. Complainants filed a bill liam L. Brown, who subsequently was a jus
the cabinet of President Van Buren, and Wilto eject defendants from two tracts of land, tice of this court, as commissioners to negoof 5,000 acres each, alleged to have been tiate a treaty settling the dispute. Kentucky granted by the state of Tennessee in 1849; one tract to Jacob Peck, who for many years time a senator from that state and Attorney
on her part named John J. Crittenden, one was an associate justice of this court, the General in the cabinets of Presidents Harriother to his son, Adam C. Peck. The beginning corner of the first-named grant is at son and Tyler, and Robert Trimble, who bethe corner of the states of Virginia and Ken-fore that time was on the bench of the Kentucky on the north boundary line of this tucky Court of Appeals and who later was a state, near Cumberland gap: and the second Justice of the Supreme Court of the United grant lies immediately west of the first.
States, Judge John Rowan, of the Court of Both are located between what is known as Appeals of Kentucky, also acted for that the Walker line of 1779-80 and the latitude state in the negotiations which led up to the line of 36 degrees and 30 minutes north.
signing of the compact. A brief history of the boundary line, run
It may safely be asserted that never in the from time to time, is necessary in order to history of this country have two commonunderstand all phases of the pending litiga- wealths met for treaty on any other occasion tion.
where they were represented by men of equal The unmarked parallel of latitude of 36 de- legal ability. grees and 30 minutes north was made by roy
A compromise was embodied in a treaty of ul charter the boundary line between the colo- date February 2, 1820, which was ratified by nies of Virginia and North Carolina, and that the Legislatures of the states represented. parallel was therefore the true line dividing Broadly speaking, the Walker line was adoptthe state of North Carolina from Virginia, ed from Cumberland gap to the Tennessee and later Tennessee from Kentucky.
river, while between that stream and the In 1779 the Legislature of Virginia named Mississippi river the true latitude line was Thomas Walker and Daniel Smith on the part made the boundary line. These facts account of that state, and North Carolina named Col. for the offset in the north boundary line of Richard Henderson and William B. Smith, this state at the Tennessee river, so plainly as members of a joint commission to run and shown by maps of the two states.
In conmark an extension of the boundary line besideration of Kentucky's yielding to Tennestween those stated, of which the territory see sovereignty over the strip lying between now within the states of Kentucky and Ten- the latitude line and the Walker line, east of nessee were parts, respectively. After fixing the Tennessee river, it was agreed by Tennesupon the point of beginning as being in lati- see that all vacant land should be “the proptude 36 degrees and 30 minutes, "to the satis-erty of, and subject to the disposition of, the faction” of all, they ran a line, which was state of Kentucky,” and that any grants supposed to be due west, about 45 miles into which Kentucky might make were to be recCarter's valley. Here a disagreement be- ognized as valid by the courts of this state. tween Walker and Henderson led to a sep Minor misunderstandings as to the true loaration. The Virginia commissioners continu- cation of Walker's line continued to arise, ed independently, and ran what is known as due in part to the fact that the gap above reWalker's line to the Tennessee river, leaving ferred to had never been marked on the an unsurveyed and unmarked gap, however, ) ground. In 1821 a joint commission, compos
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ed of Wm. Steele, on the part of Kentucky, , and of districts in which process, civil and crimand Absolom Looney, on the part of this inal, of their courts may be served and enforc
ed. state, surveyed, but inadequately marked this
"The approval by Congress of the compact gap in, and as a part of, Walker's line; and entered into between the states upon their rattheir acts were confirmed by the respective ification of the action of their commissioners is Legislatures in November, 1821. Acts Tenn. fairly implied from its subsequent legislation
and proceedings." 1821, c. 44; Acts Ky. 1821, c. 206. Growing out of such insufficient marking of
See, also, North Carolina v. Tennessee, 235 the line by Steele and Looney, disputes still U. S. 1, 35 Sup. Ct. 8, 59 L. Ed. 97. constantly arose as to the true location, and
 The next insistence of appellants is from a standpoint of showing jurisdiction in that since the lands lie within the boundary the respective commonwealths in the enforce lines of this state, only the state of Tennessee ment of their criminal laws, a more accurate had power to grant the lands in dispute. survey and a detailed and permanent mark
The contrary was held in respect of lands ing was found necessary. Therefore, in 1859, lying between the line of latitude 36 degrees a joint commission composed of Benjamin and 30 minutes and the Walker boundary Peeples and 0. R. Watkins, representing this line which were granted by Kentucky in the state, and Austin P. Cox and C. M. Briggs, year 1851. Sharp v. Van Winkle, 12 Lea representing Kentucky, undertook to run and (80 Tenn.) 15. It was there said, in reference mark the line as adopted in the compact of to the compact of 1820: 1820.
“It is obvious that the state of Tennessee, by The phraseology of that compact in respect lands mentioned which were claimed under the
this convention, parted with all its title to the of the line to be re-run along the territory other states named, and if not in terms, in plain involved in this litigation was:
legal effect, granted to the state of Kentucky “Walker's line, as the same is reputed, un
the vacant and unappropriated land specified, derstood, and acted upon by the two states, if not sooner appropriated by individuals under
with an exemption from taxation for five years, their respective authorities and citizens."
titles derived from that state. Tennessee could The boundary commission of 1859 made an not afterwards rightfully grant any of these earnest and painstaking effort to carry out lands, and no reason occurs why a general statthe true intent of the compact, and their work, ute of limitations should not apply to them. A promptly approved by the two Legislatures, ute, convention, or treaty reservation, as well as
grant of land may be made by a state by stathas sufficed to define the boundary between by warrant, entry, or grant proper.
Blair v. the two states till this day. The commission Pathkiller, 2 Yerg. 407; McConnell v. Mousehad the aid of skilled engineers, and at great Humph. 19. "The 'Henderson grant of 200,000
paine, 2 Yerg. 438; Gillespie v. Cunningham, 2 expense marked the line by planting stone acres in East Tennessee, and the grant to Gen. monuments. Their report, a duplicate orig- Greene of 25,000 acres in Middle Tennessee, inal of which is in the record of this cause, Meigs Dig. 1815. Lands are granted by the
were made by North Carolina by statute; upon examination evidences as thorough state whenever the state makes a valid disposiwork as the topography of the sections trav- tion or surrender of its interest therein.” ersed would reasonably admit of.  One of the contentions of appellants is
Counsel of appellants undertake to distinthat, since the national Congress has never guish the pending case by a reference to the formally consented to or sanctioned the com- fact that the Kentucky patents to appellees pact of 1820 between the states of Kentucky were issued in 1880, and by an assertion that and Tennessee, that compact is invalid be- the joint commission of 1859, not being able to cause in conflict with article 1, $ 10, cl. 3 of find any marks of the old Walker line, underthe federal Constitution which provides that took to abandon that as a boundary line; and,
“No state shall, without the consent of Con- further, that it adopted a new and independgress,
enter into any agreement or ent line, which in ratification by the two compact with another state," etc.
states became the true line, in respect of lands This contention has been answered by the south of which, Kentucky did not retain or Supreme Court of tne United States in Vir- stipulate for the title or the right to grant, ginia v. Tennessee, 148 U. S. 503, 13 Sup. Ct. on its part. The reply is manifold. 728, 37 L. Ed. 537, where it was said:
(a) This court held in Sharp v. Van Win“The Constitution does not state when the kle, supra, that Tennessee had made a legislaconsent of Congress shall be given, whether it tive grant to Kentucky of such unapproprishall precede or may follow the compact made, or whether it shall be express or may be implied. ated lands, which lands were to continue,
* Where the agreement relates to a mat- however, under the sovereignty of Tennessee. ter which could not well be considered until its As such grantee it is difficult to understand nature is fully developed, it is pot perceived why the consent may not be subsequently given. how Kentucky could abandon her rights by Story says that the consent may be implied, mere implication, or by any conduct short of and [it] is always to be implied when Congress some clear and unmistakable affirmative act adopts the particular act by sanctioning its ohjects and aiding in enforcing them.
indicating a purpose to repudiate ownership. Knowledge by Congress of the boundaries of a Phy v. Hatfield, 122 Tenn. 694, 126 S. W. 105, state, and of its political subdivisions, may rea- 135 Am. St. Rep. 888, 19 Ann. Cas. 374; Bransonably be presumed, as much of its legisla- non v. Mercer, 138 Tenn. 198 S. W. 253. tion is affected by them, such as relate to the territorial jurisdiction of the courts of the Unit- | It was not a mere power or privilege to make ed States, the extent of their collection districts, I disposition that was granted to our sister
commonwealth by the compact of 1820, but a , see. What was granted to Kentucky in the right to dispose as owner, vested with title bargain embodied in the compact, by way of to that end, subject, of course, to the right of compensation, should not at this day be deTennessee to tax and govern as parts of the nied by indirection or pared down. This domain over which her sovereign power ex court has once refused to give countenance to tended.
such an effort; and so far as we represent  (b) If there had been an abandonment the sovereign power of this state, we think by Kentucky and a reversion of title to this that that sovereignty may best be vindicated state, such, according to appellant's own ar- by holding to the spirit as well as the letter gument, must be assumed to have occurred of the solemn compact of 1820. Complainin 1859-60. It is insisted that as Tennessee ants' case being devoid of merit, the changranted the lands to the Peck's in 1849, her cellor's decree dismissing the bill on demurafter-acquired title, thus assumed, would in- rer is affirmed. ure to the benefit of the Peck's. This would not be the result.
The point was well ruled in Casey v. Inloes, 1 Gill (Md.) 430, 39 Am. Dec. 658. Since CAROLINA SPRUCE CO. v. BLACK MOUN
TAIN R. CO. a state in granting lands conveys without covenant
(Supreme Court of Tennessee. Feb. 11, 1918.) "the doctrine of estoppel does not apply to a
CONSTRUCTION OF grant from the state, so as to pass an after 1. CONTRACTS www.300(1)
LOGGING ROAD_EXTENSION OF TIME-"ACT acquired title, and such grant passed only the
of God"-"CAUSES BEYOND ITS CONTROL”— title the state then had."
“UNAVOIDABLY PREVENTED." See, also, St. Louis Refrigerator, etc., Co. v. Under a railroad's contract to construct and Langley, 66 Ark. 48, 51 S. W. 68.
put in operation a road from a timber tract to a In this case the state of Tennessee was with main line junction, the provision, unless prevent
ed by other "causes beyond its control," did not out title in 1849, and complainants therefore refer only to a cause which was an "act of lack title in themselves to wage successfully God," that term meaning a happening due dia claim in ejectment.
rectly and exclusively to a natural cause or (c) It appears from the report of the com- cies, which could not be resisted or prevented by
causes in no sense attributable to human agenmission of 1859 that they found evidences of the exercise of such foresight, prudence, and the markings of Walker made in 1779-80. care as the situation might have called into exerWe quote one paragraph, which relates to cise; but the provision was synonymous with that line as it was run past the property in "unavoidably prevented,” the words "beyond con
trol” implying a pledge to exercise human agency litigation:
to the point of excluding negligence, so that un“We have seen many of them (Walker_line anticipated trouble and delay encountered in a trees) west of the southeast corner of Ken- cut by reason of a peculiar mud or clay called tucky, for several miles, and as far westward as "gumbo," much harder to remove than rock, enhe nrofessed to run it, that is to the Clear fork titled the railroad to 30 days' additional time of Cumberland river, and they were uniformly , to finish construction. marked with three chops, fore and aft."
(Ed. Note.-For other definitions, see Words By way of reenforcement, and to preserve and Phrases. First and Second Series, Act of
God; Unavoidably Prevented.) it as an interesting bit of local history, we
2. CONTRACTS 280(1) CONSTRUCTION OF here quote what is reported in respect of one
LOGGING ROAD "CONSTRUCTED". "Conof the two or more trees found west of Cum
PLETED." berland river, and on the southern line of Where the road had until June 1st to finish Logan county, Ky.:
construction of the line, the construction of a
road in which the curves were fully tied, but the "On another beech tree, near the large one, straight portions of which were half tied, but we saw the names of 'James West. Isaac Bled, which enabled an engine and cars with additionsoe, 11th March, 1780.' We suppose these men
al ties to be sent forward, and put it in condiwere a portion of Walker's corps. All the tion to bear any traffic tendered by the lumber chops had the appearance of being very ancient, company, and where heavy mill machinery was and had doubtless been made by Walker's par: hauled over the line early in April, and the roadty. We did not block any of them, thinking it way was thereafter steadily improved, it was a shame that every vestige of Walker's ever having run the line should be obliterated; we traffic; the word "constructed" having substan
constructed and placed in operation for general were fully satisfied without doing it; and the tially the signification of the word "completed." beech stands there now, as it did when the surveyors in 1779-80 left it, not seeming to have
[Ed. Note.--For other definitions, see Words lost any of its vigor by the lapse of ages."
and Phrases, First and Second Series, Complete;
Construct.) The result, as well as the object of the la
3. CONTRACTS 280(1) CONSTRUCTION OF bors of the commission of 1859, was not to
LOGGING RAILROAD OPERATION EQUIPrun and mark a new line, but to re-mark the MENT—"CONSTRUCTED"--"COMPLETED.' original Walker line.
The road was constructed and placed in opThe state of Tennessee gained much as the eration, even though the contractor, which had
purchased engines, was dependent upon its conresult of the compact of 1820, due to the will necting carriers for its freight car supply, as the ingness of our sister commonwealth to yield word "completedl" did not include the equipment her claim to sovereignty over a large area in of the road with the contractor's own rolling order not to defeat the wishes of many set- stock, especially where there was no express
contract provision that the railroad would purtlers in the strip to remain citizens of Tennes- chase rolling stock.
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4. CARRIERS Omw 193—CONSTRUCTION OF LOG-county, N. C., was desirous of securing railGING ROAD_CONTRACT-FREIGHT RATES.
way facilities for its development. The tract Under a railroad's contract to construct a logging railroad to connect with a main line, was located about 20 miles from the Caroliand to transport lumber, etc., to a junction on na, Clinchfield & Ohio Railway, a trunk line, the main line at four cents per hundred pounds and its development required the construcin excess of the rates currently in force from tion by the Spruce Company, or another, of the junction, the railroad's charge and collection of four cents, plus the regular through rate
a tap-line railroad over which the forest charges from the junction, and its receipt of products, such as lumber, logs, acid wood, three cents from the connecting carrier for pro- etc., might be transported to some junction ducing the traffic, was authorized, provided there point on the Carolina, Clinchfield & Ohio was no discrimination between shippers. 5. CARRIERS 193 - RATES - ORIGINATING
Railway. The timber tract was located at TRAFFIC.
or near the base of Black Mountain (Mt. The established and well-known practice Mitchell), one of the tallest peaks east of the among railroad companies to allow to the car- Rocky Mountains, and a tap line to reach it rier originating the business an advantage in the distribution or division of the rate has been would have to traverse a very rough territory. recognized and by fair inference upheld by the In order to induce the construction of such a Interstate Commerce Commission and the Unit- line to the boundary, the Spruce Company ed States Supreme Court.
offered a bonus to aid the Black Mountain 6. CARRIERS 199 · RATES DISCRIMINA- Railway Company in the large expenditure of TION.
Where a railroad contracted to construct a money such construction would call for. line from a main line junction to a timber tract, Omitting to even outline previous contracts and to transport lumber, etc., at a certain rate, entered into in relation to the matter by the the shipper, if entitled to the part of the joint through rate paid by the connecting carriers to complainant and the defendant railway, and the railroad for originating traffic, would have alleged breaches thereof by the Spruce Coman undue and forbidden preference over other pany, we believe it to be sufficient to say that shippers, and a contractual obligation, that it on September 19, 1912, the two entered into should receive such distribution would not justify such discrimination, and a state court would an agreement, one of the clauses of which not enforce such a contract.
reads as follows: 7. CONTRACTS 153 - CONSTRUCTION - VA "The railway company agrees that it will proLIDITY.
ceed forthwith to construct and place in operaWhere a contract may fairly be construed tion a standard guage line of railway from a not to violate the law, the courts should in- point of connection with the line of the Carocline to give it that construction, and thus main- lina, Clinchfield & Ohio Railway at Black Mountain its validity.
tain Junction to Pensacola, along the route to 8. EVIDENCE 73 FILING EVIDENCE OF
be selected by the railway company, CONCURRENCE IN JOINT RATES – PRESUMP- so that material and machinery of the Spruce TION.
Company, necessary for the erection of a sawIt will be presumed that a carrier bas com- be transported over the same not later than
mill and plant of the Spruce Company, may plied with the law in respect to the filing of evi- March 1, 1913, and that the road will be in dence of its concurrence in joint rates established by other carriers, assuming to act for all of condition for general traffic not later than April those named as participants.
1, 1913 (later changed by the parties to May 1,
1913), unless prevented by weather conditions or 9. INJUNCTION em 208–DECREE-RESERVING other causes beyond its control.” RIGHT TO CORRECT CLAIM. On a bill by a lumber company to enjoin a
As a part of the bonus sum, a note of railroad's sale of collateral upon default in the $10,000 was executed by the complainant payment of a note given the railroad for constructing a logging road, where it appeared that company to the railway company, which note complainant might have a just claim in some
was secured by a pledge of first mortgage amount not shown by the record for an over- bonds of complainant. At the maturity of charge on cars equipped with standards placed the note there was a claim of default in payon gondola and flat cars, the decree entered should reserve to it the right to litigate such ment, and the collateral was advertised for claim in a court, or before the Interstate Com- sale. merce Commission, as it might be advised.
The bill of complaint of the Spruce Com
pany was filed to enjoin the sale of the colAppeal from Chancery Court, Washington lateral, and it challenged the right of the County; Hal H. Haynes, Chancellor.
railway company to collect the note by an Bill for injunction by the Carolina Spruce allegation that the contract had not been Company against the Black Mountain Rail complied with by the railway company. It road Company, with cross-bill by defendant.
was alleged that the latter company was Decree for complainant in part, from which obligated to build and equip its line by a this appeal is brought. Modified.
date fixed, but had itself made default and Harr & Burrow, of Johnson City, for Caro- | failed to earn the bonus, and had seriously lina Spruce Co. J. J. McLaughlin, Cox & njured con inant. Other allegations in Taylor, and J. R. Simmonds, all of Johnson the bill and allegations and denials in an City, for Black Mountain R. Co.
answer raised the issues discussed in the
body of this opinion. WILLIAMS, J. The Carolina Spruce Com A cross-bill was filed by the railway com. pany, a private corporation, having pur- pany praying for appropriate relief. chased a large boundary of timber in Yancey  In point of fact the railroad did not
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