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Federal court records: Stevenson et al. v. Fain et al.: Telico River area

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  • 116 FEDERAL REPORTER. The act of the state surveyor in surveying and platting the lands- between the State Ridge and the water divide was not the act of the state. It was a plain mistake, made by an official having no authority to ascertain or run or mark the line dividing the states. True, the state granted the lands thus surveyed and platted. But this was not under legislative direction, nor is there anything to show that in thus granting these lands the executive department of the state intended to thereby intentionally claim jurisdiction beyond the old marked dividing line. Indeed, it does not appear that either the surveyor general or the executive department concerned in issuing grants for the lands erroneously surveyed ever knew that any part of the lands so surveyed or granted were south or east of the line run and marked in 1821. North Carolina did not have the Cherokee lands acquired by her surveyed until 1853. A part of the disputed lands was entered that year and subsequently carried into grants under which they are now held. The region is a wild and almost inaccessible mountain region, unfitted for agriculture, and valuable only for timber, difficult, if not impossible, to get out. The only inhabitants have been tenants of recent origin, claiming under one or other of the adverse claimants. No such acts of jurisdiction by either state are shown as to be of any importance in any aspect of the question. In Belding v. Hebard, 43 C. C. A. 296, 103 Fed. 532, we had occasion to ascertain a portion of this dividing line, a few miles northeast of the part now in dispute. In that case we had evidence of two different lines, both probably run and marked by the joint commission. The line called the "Slick Creek" line was the better marked line, but was a plain departure from the call to follow the "main ridge." There was an old marked line on the "main ridge," and, though not so well marked, had the great advantage of being supported by the calls for course and the call for the extreme height of the "main ridge." Under the evidence, we held the latter to be the line "run and marked" by the commission of 1821, and adopted by the confirmatory acts of both states. In that case, as in this, we were confronted with the fact that the Tennessee Cherokee survey had stopped at the Slick Creek line, and in that way recognized that as the line. But upon the whole case we held that the evidence relied upon to pull the line away from the "extreme height" of the "main ridge" was insufficient. The marked difference between that case and this is, first, in the fact that the "main ridge" called for in the confirmatory acts of 1821 was far more clearly ascertained than in the present case; and, secondly, there was in that case evidence that two lines had been run and marked and old state-line marks shown on both lines. The call for the "main ridge" was, therefore, supplemented by the existence of artificial monuments, and this turned the scale over the other, although the more plainly marked line. Upon the whole evidence we conclude that the line run and marked in 1821, and adopted by both North Carolina and Tennessee as a definition of the true and ancient dividing line, is the line located on the State Ridge, and the line in favor of which the court below held. The decree dismissing the bill of complainants below must be affirmed.
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