Taylor v. Walton and Hundly

(Local law.) Taylor v. Walton and Hundly. A question of fact respecting the validity of the location of a warrant, • fdr land under the' laws of Kentucky.. 'Appeal from a .decree in chancery in the circuit court of Kentucky. The cause was argued by Key for the appellants, and Talbot and Hardin for the respondents. [MAJORITY — Marshall, Ch. J.,] Marshall, Ch. J., delivered the opinion of the March 6th, court. This is an Appeal from a decree rendered in the circuit coürt of Kentucky, directing the appellant to convey, to the appellees, lands lying within his patent, which the appellee^ cláinied by virtue óf á junior patent. In all such caáes the validity of the entry. Which is the foundation of the tille df the junior patentee is first, to be exaniihed. This entry was made on the 4th of December* 1783, and Calls to begin: “in the fork of-Chaplin’s, forkj arid the Beech fork, arid to run thence up Beech fork to the mouth of the first large creek, which is called, &c., thence'to run up the creek and tip Chaplin’s fork till a .finé run straight across ..will include the quantity to exclude prior legal claims.” The. places called for being proved to have beén places of notoriety which could not be mistaken, no Want of certainty can be ascribed to this location, unless it be produced by the words .“ to exclude prior legal claims.’* These words are obviously attached to the quantity, not to the beginning, or to the lines bounded by the creeks. . They can'then affect only the back line, which is to extend from one creek to the other. . The locator seeihs to have supposed that this line might approach towards, or recede from* the point of junction between the two creeks* as the amount df prior legal claims might require; that a'location could adapt itself to circumstances* could assimilate itself td án elastic substance, and., cbntract or expand as might secure the quantity of land it sought to appropriate. In this he was mistaken. . The boundaries of an entry must be. fixed precisely by.its own terms, and cannot depend, on previous. appropriation. So much of this entry* therefore, ás would so extend the back line as to comprehend, in one event, more land thati the quantity mentioned in the location, is utterly void. The back line must run as it would run if all the land was vacant. But it would be unreasonable that this futile attempt to extend the back line further than it is by la.w extendible, should destroy an entry, in all other respects, certain. Accordingly, the courts of Kentucky, so far as their decisions are unde»”-, stood, have rejected such words as surplusage. The entry of the appellees being good, it obviously comprehends, and has been surveyed to comprehend, the land of the appellant, and this brings us to the consideration of hib title. .The appellant claims under an. entry made by, John Pinn, the 13th of May, 1780, in these words, “John Pinn enters 3,000 acres of land by virtue of a treasury warrant, on the dividing ridge- between Chaplin’s fork and waters of the Beech fork, about one and a half miles north of a buffalo lick, on a creek water of the Beech fork, about 25 miles from Harrodéburgh, and to extend eastwardly and westwardly for quantity.” . The plaintiffs, below allege, in their bill, that, this, entry is void bn account of its uncertainty, that the survey is unlawful and contrary to the location, and, therefore, pray that the lapd so surveyed and patented may be conveyed to them. The circuit court determined that the entry was void, and decreed according to the prayer of the-hill, From this de.cree the defendant has appealed to this court, ana the validity of Finn’s location forms the; principal question in the cause. The report of the surveyor, Whiphis found in the record, is defective and unsatisfactory. He has neither placed Harrodsburgh nar the dividing ridge on the plat; the court is under the necessity of supplying these defects, as far as they can be supplied, from other, testimony which appears in the record. From that testimony it appears, that the ridge must extend from,some .point below Pinn’s entry, up the' creek near which it is made, now called Long Lack Creék; and that the trt leading up that creek was a trace leading, from Cox’s station to Harrodsburgh. The inference Seems inevitable that Harrodsburgh lay eastward from this location, since, the trace lead-, ing up the creek to Harrodsburgh took that direction. ' The testimony must be understood as showing that in going up the Long Lick Creek you approach Harrodsburgh. . This is a material fact in the inquiry we are making. Harrodsburgh is admitted to have been a place of general notoriety, as are Chaplin’s fork, and the Creek called for in Pinn’s location. The dividing ridge between Chaplin’s fork and the. waters of Beech fork is also, of necessity, a place of notoriety, since the waters it divides are so. Thé first call of Pinn’s entry is for this dividing ridge; a general call for the ridge would be certainly too vague; but the land must.lie oil some part of it, and we must look to ofher calls of the entry to ascertain on what part. It is to be about one and a half miles north óf a buffalo lick, on a creek water of the Beach fork. The question, whether this buffalo lick was, on the 13th of May, 1780, a place of such notoriety as tp‘instruct a subsequent locator how flo find Pinn’s beginning, .is one of some doiibt. The degree .of proof which can now be adduced, and ought now to be required, respecting siicb a fact, :must be affected by many circumstances. The contiguity of stations, the number of persons who frequented that particular part of the country, and, above all, the lapse of time, will have their influence. Richard Stephens deposes that he had travelled Powell’s trace, which leads up the Long Lick forfc three times; understood there was a lick at the place, and thinks he was at it, but waé not much acquainted with it. Edward Willis became acquainted with this lick in 1781. or 1782,;-there were several other licks on the same creek, but this was the largest and moat frequented. . Its reputed distance from Harrods-burgh was better than twenty miles.. Joseph Willis hpnted a good deal in that part of the country, and knew. this. lick. Never knew but one buffalo lick, though there are % number of small flicks. Its reputed distance from Harrodsburgh was upwards of twenty miles, but does not recollect whether it was a place of notoriety in 1780. John Gritton calls it a buffalo lick, and has been acquainted with it e.vet since .the month of June, in the year 1780. Its reputed distance from Harrbdsburgh tyas from twenty to twenty-five miles. There are several oilier small licks on the creek, and one* a tolerable large.one, lying on the South fork, á different creek from Long Lick; but no other than this was called a buffalo' lick; In a subsequent part of his deposition he is asked whether this lick was a place of notoriety in 1780, and answéred, that be knew nothing' about it at that time. This'must be intended for the. month of May, 1780, one month sooner than the date of his knowledge,, or is a positive contradiction to his first assertion.;.. James Raig says, that this lick was generally known by the hunters about Harrodsburgh, prior to the month'of May,. 1780; that he encamped at it with three hunters, in the summer of 1776, and hunted abtíut there; that there are several other licks in the neighbourhood, hut no other buffalo lick; that its reputed distance from Harrodsburgh, in 1781 or 1782, was about 25 miles. This is all the testimony respecting the notoriety of the - buffalo lick called for in Penh’s entry. Did the validity of this entry depend solely on the notoriety of the lick, a court would find some difficulty in pronouncing it too obscure;an object to.be noticed by Subsequent locators. ■ But, admitting that the lick wants sufficient notoriety to fix of itself the place of Penn’s entry, still, if must he allowed to he an object easily found and easily distinguished, by those who are brought into its neighbourhood by the ether descriptive parts of the entry. Let us, then, inquire, whether this entry does contain such description, as would conduct a subsequent locator into its neighbourhood... The lick is within a mile-and a half of the dividing ridge, on the south side of that ridge, and ón, a creek water of Beech fork, This description, which, thpugh not expressly, is substantially given, precisely fits Long Lick Creek, and fits no othercreek. ■The location calling to begin a mile and a half north of the lick, which lies on the creek; it is sufficiently apparent that no creek is crossed between the lick and the place on the . dividing ridge, called for by Finn’s entry: consequently, the lick must lie on the creek nearest this dividing ridge. This' is what has been since called Long Lick Creek,' but which was then without a name, and could be designated only by description. A subsequent locator searching for this lick, would look for it, then, on Long Lick Creek.' , He-is informed by the entry, that it lies on a creek so described as to be completely ascertained, about twenty-five miles from Harrodsburgh. .The part of that creek, then, which lies about twenty-five miles from Harrodsburgh,is the place where he must search for this lick. Walton and Hiindly state in. their en-fries, that Powell’s trace, which leads from Cox’s station to Harrodsburgh, and which arrives, at Long Lick Creek a short distance abbve this lick, goes up the creek five or six miles. James Ray says, that the trace leads nearly tó ifs head; and the. surveyor in. lfis report states, that it leads quite to its head. Long,Lick Crpek, then, heads between Harrodsburgh and this lick, and is the creek oh which the buffalo lick must fie. The.entry tells us, it lies twenty-five miles froto, Harrodsburgh. If an object be called for as lying bn a creek, s6> described as to be distinguished and ascertained, twenty-five miles from a given place of general notoriety, which 'object, has disappeared or cannot be fpundy it is understood to be settled', in Kentucky, that such location is not void for uncertainty, but is to be surveyed at the distance of twenty-five miles along the creek, from the place of departure. If the object be found and be identified, especially if it be such an object as would readily attract attern tion, and be easily distinguished, exactness in the distance is not required. Oh suc,h occasions the distance was, in fact, seldom measured by the lpcafor, and could not be measured in a straight line without the\aid of a surveyor. The locator, in estimating distances, where they are considerable, is governed by general computation ; and this is known to subséquent. locators. Exactness of distance, then, is introduced for the purpose of giving certainty to locations, which can by no other means be rendered certain. Where the object called for is easily found and identified, the. want of precision in distance will not defeat the location, unless the difference between; the actual and estimated distance.be such,, as to mislead subsequent locators, James Ray says, that the estimated distance from Harrodsburgh to the,mouth of Hanger run was 27 or 30 miles, and that the lick was about three miles hearer than the mouth of JHanger run to Harrods-burgh. James Ray says, that the estimated distance from Harrodsburgh to the lick was about 25 miles, and that it lies three or four miles above the junction of the Beech and Chaplin forks. Several witnesses depose, that the estimated distance from Harrods-burgh to this, lick was upwards of, twenty miles. The distance has been measured, and is in;a straight line twenty miles and one quarter of a mile. , If. this difference of distance could in such a cáse, when unaided, affect the entry, yet there are other circumstances which relieve it from this, difficulty. From the lick to the rpoúth of the creek on which it must lie, cannot, in a straight line,' amount to. two miles. Measured along its meanders^ the distance is about three miles. This fact is ascertained by the . surveys' made of the two enfries. The farthest point, then, of this creek from Harrodsburgh, cannot,m a straight line, exeeed twenty-two miles. But the lick lies, not at the mouth of the creek, but on the creek. The locator must, then, search for it up-the creek, and nearer to Harrodsburgh. The extent of this search for such an object as a buffalo lick* an object, to which he must be ted by traces of the buffalo, which are in themselves so.visible, so distinguish able, so readily found, cannot, without totally'disregarding the whole system of Kentucky decisions, be.. pronounced too great, a labour tobe imposed on a ° subsequent locator. ’ He is brought to the mouth of a creek, on which the object for which he' searches lies: the object must lie updhat creek, and cannot lie far'from its mouth. It is an object discernible and distinguishable at a distance, and calculated from its nature, to engage attention. He. is within two riulesof it on a straight line, and within three miles pursuing the meanders of the creék: if he does not find it, it is to his own indolence, not to the obscurity of the object or the difficulty of the search,, that the blame attaches. The lick being found, there is no. difficulty in ascertaining its identity. The witnesses certainly say, that there are many other licks on the same creek¿, and the surveyor has laid down two others; but they also say, that no other lick was- a buffalo lick. It has been stated and argued at the bar, that although licks are of very different dimensions,- and the difference is immense between the extremes, yet the gradations approach each other so nearly, that the' exact line she tween thém can scarcely be drawn. Admitting this to be true, yet there are licks which are indubitably buffalo licks,' there • are others which are as indubitably deer licks. Now, the witnesses pronounce, positively, that this is. a buffalo lick, and that the others are deer licks.. In addition to this, it is nearest to the .mouth of the creek, and farthest from Harrodsburgh; consequently, it is nearer, the distance required by the location. There is no doubt, then, respecting, the identity of this lick. The lick called for in Pinn’s entry being found and identified, there can be no difficulty in finding his land.’ It lies one and a half miles due north of this lick, on the dividing, ridge.. The place at which the-mensuration is to commence .being ascertained, the-rules established in Kentucky will give ' form to the land, and direct the manner of making the .survey. ■ It is the opinioh of this /court,' that the decree of tné circuit court is erroneous, and ought to he reversed; and that the cause be remanded to that court, with directions to order the land claimed by the appellant to fee surveyed conformably to his location, In doing this, a point will be taken one mile and a half due north of the buffalo lick mentioned in Finn’s en.try,. from which a line is to be extended east and west, to equal distances, until it shall form the. base of a square to contain 2,000 acres of lend, which is to lié north of the said line. Pecree reversed.