
    Jones et al. v. Coal Creek Min. & Mfg. Co. et al.
      
    
    
      (Knoxville.
    
    September Term, 1915.)
    1. ADVERSE POSSESSION. Requisites. Burden of proof.
    One seeking to skow title by adverse possession has the burden to make out by clear and positive testimony such adverse possession as will bar the real title. {Post, pp. 184, 185.)
    2. ADVERSE POSSESSION. Requisites. Burden of proof.
    Although instruments under which an adverse claimant made his claims did not appear, but it was established that there was such a claim, another claimant, seeking in an action to establish title by adverse possession, has the burden of clearing up the questions raised by the existence of the other claim, and of showing its invalidity. {Post, p. 185.)
    3. ADVERSE POSSESSION. Requisites. Evidence. Burden of proof.
    In spite of the principle that a tenant cannot attorn to another, so as to hold adversely to his landlord without notice to him, where it appeared that a tenant had claimed adversely to his landlord because of certain suits involving the landlord’s title, one seeking to establish adverse possession to the same land, as against both the landlord and the tenant and their assignees, has the burden of showing positively that the tenant had no title by adverse possession. {Post, pp. 185, 186.)
    4. ADVERSE POSSESSION. Requisites. Exclusive possession. Effect of double claims.
    Although the true owner of land against whom an adverse claim is asserted has presumptive title to all land not within the actual inclosures of the adverse claimant, that is not true of a mere trespasser; and possession by two adverse claimants, neither of which has title, neutralizes the possession of each in the overlap, priority of possession creating no advantage. {Post, pp. 186, 187.)
    
      Cases cited and approved: Hnnnicutt v. Peyton, 102 TJ. S., 333; White v. Lavender, 37 Tenn., 648; Berry v. Walden, 6 Tenn., 174-177; McClung v. Ross, 5 Wheat. (U. S.), 116; Creech v. Jones, 37 Tenn., 631; Waddle v. Stuart, 36 Tenn., 535; Norvell v. Gray, 31 Tenn., 96, 107; Iron Co. v. Railroad, 131 Tenn., 236; Walker v. Pox, 85 Tenn., 154.
    PROM ANDERSON.
    Appeal from the Chancery Conrt of Anderson County. — Hugh Gf. Kyle, Chancellor.
    Sawyee & UndeRwood and Lucky & AndRews, for appellants.
    Scott & Chandlee and Weight & Jones, for appel-lees.
    
      
      As to what constitutes residence out of the State .within the meaning of the statute of limitations see note in 17 L. R. A., 225; 47 L. R. A. (N. S.), 309.
      On quit claim deed as color of title for purposes of adverse possession see note in 4 L. R. A. (N. S.), 776.
      On sufficiency and effect of “return” to State by defendant to start statute of limitations running see note in 23 L. R. A. (N. S.), 547.
    
   Mr. Justice Pancher

delivered the opinion of the Court.

A petition has been filed to rehear this ease.

The position taken by the petitioner, that the possession of John Bunch, while he held for one Byrd, will be limited to the inclosure so held by him for Byrd, in its effect to neutralize the possession of defendant, cannot be sustained under the facts in this case. It is upon the testimony of John Bunch alone that the defendant relies to prove its adverse possession by Jerry Bunch and John Bunch. This witness shows that, while the possession of Jerry Bunch was being held by him, that he (John Bnnch) was also holding under a. lease from Byrd, and that it was of this land. He shows, furthermore, that there was litigation over the land, and that he continued to hold for Byrd until the litigation was ended. The proof, therefore, establishes that it was this identical land of which he was in posses-, sion under a lease. The lease itself might define boundary and extend the constructive possession so as to cover the land. Presumably it did so from this testimony. If there were no instrument defining boundary, the possession would be confined to the actual inclosure. But it is incumbent upon the defendant to make out by clear and positive testimony such adverse ’ possession as will bar the real title. In the effort to make out such possession, the defendant’s own witness proves that its possession was mixed, or, to say the least, left it seriously in doubt on this point.

While the color of title or instrument under which Byrd was claiming, and the lease to his tenant, neither appear, we think this was a matter which the defendant Coal Creek Company should have cleared up, inasmuch as the facts are presented through the testimony of a witness introduced by it, and the burden was casi upon it to make out such possession as would bar the owner.

It is insisted that John Bunch could not hold adversely to his landlord without notice. The statement of the law is correct that a tenant cannot attorn to another, so as to hold adversely to his landlord, without notice to him. But here the principle is misapplied. ' A law snit was pending,' probably over this very bold-ing of John Bnneb for Byrd. If no snob'notice was bad, it was tlie duty .of the defendant to bring it ont since the matter was introduced through defendant’s own witness, leaving its own proof of adverse possession, to say the least, in a state of uncertainty and doubt.

Another point raised in the petition as we understand, is that the Coal Creek Company, being first in possession, would have a superior right, and that the, entry by Byrd upon the land would not have the,effect to drive back the other claimant to his actual boundary or neutralize its, constructive possession of the land. The position relied upon would apply if the Coal Creek Mining & Manufacturing Company had been the true owner. In such case theTaw regards the possession is with the true owner as a superior right, and if, while he is in actual possession of his land, a claimant without title enters, he will be confined to his actual inclosures though he have color of title. This is upon the ground that there can be only one possession of land, and in a contest between the true owner and a trespasser, both attempting to hold actual adverse possession at the same time, the constructive possession as to that part of the land outside the actual inclosures is field to be that of the owner. 2 Corpus Juris, pp. 242, 243; Hunnicutt v. Peyton, 102 U. S., 333, 26 L. Ed., 113; White v. Lavender, 5 Sneed, 648; Berry v. Walden, 4 Hayw., 174-177; McClung v. Ross, 5 Wheat. (U. S.), 116, 5 L. Ed., 46; Creech v. Jones, 5 Sneed, 631; Waddle v. Stuart, 4 Sneed, 535; Norvell v. Gray, 1 Swan, 96, 107; Iron Co. v. Railroad, 131 Tenn. (4 Thomp.), 236, 241, 174 S. W., 1122.

Not so, however, as between two mere claimants without title. Where disputed land is covered by deeds of both parties, and each has possession within the interference, bnt neither has title, their possession neutralizes each other as to the land within the lap not in actual possession of either. Walker v. Fox, 85 Tenn., 154, 2 S. W., 98.

In this case the Coal Creek Company did not have title. It was in the attitude of a mere trespasser on the land until its full seven years’ actual, exclusive, continuous, and adverse possession had been effective. If during' that time another trespasser, claiming the land, entered under an instrument defining boundary, there would be a conflict between the two trespassers; neither being rightly upon the land. The holding of the one would neutralize the holding of the other, or rather the entry of the last trespasser would rob the holding by the first of its unmixed character.

Other questions raised are not well taken. The petition will be overruled.  