Page images
PDF
EPUB

BODLBY

v. TAYLOR

could the court do this? The only condition of the law is, that the settlement right (i. e. the 400 acres) should include the settlement or improvement; and that the pre-emption right, (i. e. the 1,000 acres) should adjoin the settlement right. With this restriction only, and that respecting the shape of surveys, (viz. that their breadth should be at least one third of their length,) Johnson had a latitude to survey it as he pleased. How can the court, at this distance of time, deprive him of that right long after he had exercised it.

But after having once exercised it he could not alterit. Can the court now do that for him which he could not have done for himself? and thereby overturn titles dependent upon his location ?

In fact, this restriction is only extracted from an incorrect construction of Johnson's certificate.

This certificate consists of two parts; the claim and the judgment.

The court of commissioners received the claims verbally, and the clerk stated them in his own language. Johnson's claim was a settlement right, and to obtain it, he had only to prove where his settlement lay, that the commissioners might describe it, and notify the register and surveyor. The settlement being ascertained, the law locates the land by the references “includeand “ adjoin.All beyond, ascertaining the situation of the settlement, was surplusage, and idle.

This was a settlement right, and not a village right. This is evident from the certificate itself.

1. Because it mentions the date of the settlement, 1776, and adds the words “before the 1st of January, 1778."

2. It uses the words of the law, applicable to a settlement right, viz. "to include the settlement;"

whereas the terms of the law relative to village Budley. rights are, “ adjacent, or convenient to the village.”'

TAYLOR 3. No village is mentioned.

4. It mentions raising a crop of corn, which was the proper

foundation of a settlement right.

But the decree of the court below turns on the word “ lying" in the certificate; whether it means a settlement “ lying" or a settlement right "lying" on the east side of the road? Whether Johnson, in using that expression, meant to apply it to the settlement which was the foundation of his claim, or to the thing claimed in consequence of that settlement?

It refers, says the decree, not to the settlement, but to the 400 acre settlement right, and to the 1,000 acre pre-emption.

If the whole 1,400 acres could be made the ob. ject of reference to the word “ lying," then by declaring that no part of them should approach nearer to some arbitrary point of the 500 acre lick than nine measured miles, Johnson is thrown entirely to the east of the supposed settlement, and the chief part of his, the Waldens', and the defendant's patents transposed to the complainants’ 16,000 acre entry.

But if the word “ lying” refers to “the settlement," then it is obvious that Johnson's survey No. 2. includes the assumed point of settlement with far greater coincidence with the Kentucky precedents ; and the survey No. 1. with more still than the survey No. 3. which shoots out an irregular proboscis from the settlement right, to get at the settlement point.

By these precedents, the settlement is placed in the centre of the settlement right, and the seitlement right in the centre of the pre-emption right, Vol. V.

In

BODLEY surveying from the settlement itself to the cardinal TAYLOR. points for quantity.

The law, by saying that the pre-emption right shall adjoin, not the settlement itself, but the settlement right, countenances the idea that it could pot adjoin the actual settlement, because that had been included in the settlement right. But the survey No. 3. makes the pre-emption adjoin the settlement itself.

The decree goes upon the idea that the certificate locates the 400 acre settlement right, and the 1,000 acre pre-emption right on a certain point, on the east side of a road, nine miles from the licks.

But a settlement right is not even mentioned or alluded to in the whole certificate, whose only ob, ject was to establish the fact that a settlement actually had been made at a certain place, and the number of acres which the settler claimed, or which the commissioners allowed in consequence of such settlement. The right was a legal consequence of establishing the settlement, and could not be located but by locating the site of the settlement. When that site was established, the law located the right.

Some stress is laid upon the words “to include the above location.” If the “ above location" was a location of the whole right, how could the right include the location ? This would be to say that a thing may include itself. The thing enclosed must be less than the thing enclosing. Hence it results that the “above location” was not a location of the settlement right but of the settlement only.

By allowing the 400 acre tract to include the located settlement on a geographical point located or situated nine miles from the licks, on the east side of the road, and the 1,000 acre tract adjoining the 400 acre tract, and including it, the law is fol. lowed correctly, and exactly fulfilled.

[ocr errors]

To comply with the idea of the decree, great BODLEY bodies of land must be compressed into a particle

TAYLOR. at the end of the nine mile line, and then be expanded for surface. If the decree had suffered it to expand equally in every direction from that point, the defendant's title would have been safe. What reason was there to limit this expansion to one particular direction. If the given distance must be violated to gain the required surface, why not expand towards the licks, as well as from them?

But Johnson's second survey has been perfected by acquiescence. There was no complaint, no caveat. Suppose the defendant had surveyed upon thę ideal basis of Johnson assumed by the court below, and that universal acquiescence had perfected his title in another place; could he have held his land by a connection with no title of Johnson, whilst a perfect tiile existed at another place, with which, in his entry, he had connected himself?

If Johnson's and the Waldens' titles are good, the defendant's is good also. Those titles can never be affected by a suit in which they are not parties.

Johnson's entry is 25 years of age, his survey 16, his patent 12; neither has been questioned to this day, by caveat or suit.

an

an

But the continuity of the chain from Johnson to the defendant is said to be broken by the want of

east side” on the buffalo-road, by the want of

east side” to Johnson's first and second survey, and by want of an "east and south-east sides," by John Walden, There being no such

east sides Johnson could not lie on the “ east side” of the road. A. Walden could not lie on the " east side" of Johnson, nor the defendant on the east and southeast sides of John Walden. Accordingly the decree has provided in the survey No. 3. an “ east side” for Johnson, by a north and south line for Ą. Walden to adjoin, and sinilar sides for J. Walden and the defendant, violating the positive provision of

BODLEY

V. TAYLOR.

law as to the length and breadth of surveys. But, in the language of these locations, “ on the east side” means no more than that the lands are to lie eastward, or on the easterly side or part of.

They do not necessarily suppose that the surveys must absolutely have an exact north and south line. It means aspect, one part of a body opposed to another part of the same body. In this sense every tract of land must have an east side.

As locators had a very considerable latitude in making their surveys; and as entries might join each other before any of them were actually survey. ed, if the principles of the decree are just, and nothing but a north and south line will make an east side, it would put it in the power of the first locator to prevent the second locator from joining him at all, and of course to destroy the validity of his neighbour's entry. This could not be the intention of the law. Kenton used the term “ side" with a knowledge of this latitude. He therefore did not intend to use it in a sense which would destroy his locations. He used it merely to show the geographical relation of one entry to another.

Again ; these entries call, not for surveys, but for each other. In John Walden's the words "joining the above entry" are expressly used. How can the east side of an entry be converted into a' north and south line of a subsequent survey. The calls are to couple entries to entries ; subsequent entries to previous entries, not previous entries to subse. quent surveys.

It is by blending geometry and geography, in consirlering entries. that inaccurate constructions prevail; whereas the latter only is necessary.

But the complainants' entry is bad in not giving any geographical notice. The letters I. T. cut in the back of a tree do not constitute a geographical object. A location was r. quired not to enable a man to find his own land, but to enable others to avoid

« PreviousContinue »