Page images
PDF
EPUB
[ocr errors]

BODLEY tion of a court of equity is, that an entry is considered as a record of which a subsequent lo- TAYLOR. cator may have notice, and therefore must be presumed to have its consequently, although he may obtain the first patent, he is liable, in equity, to the rules which apply to a subsequent purchaser with notice of a prior equitable right. This certainly brings the validity of the entries before the court, but it also brings with that question every other which defeats the equity of the plaintiff.

The court, therefore, will entertain jurisdiction of the cause, but will exercise that jurisdiction in conformity with the settled principles of a court of chancery. It will afford a remedy which a court of law cannot afford, but since that remedy is not given by státute, it will be applied by this court as the principles of equity require its application.

Neither is the compact between Virginia and Kentucky considered as affecting this case.

If the same measure of justice be meted to the citizens of each state, if laws be neither made nor expounded for the purpose of depriving those who are protected by that compact, of their rights, no violation of that.compact is perceived.

The court will proceed, then, to inquire into the rights of the partics, and, in making this inquiry, will

pay great respect to all those principles which appear to be well established in the state in which the lands in controversy lie.

Taylor holding the eldest patent, it is necessary that the complainants below should found their title on a good entry. The validity of their entry, there. fore, is the first subject of examination.

It was made on the 17th of October, 1783, and is in these words; “ Henry Crutcher and John Tibbs enter 10,000 acres of land on a treasury warrant, beginning at a large black ash and small buckeye marked thus, I. T. on the side of a buffalo

Bopter road leading from the lower blue licks a N, E. TAYLOR. course, and about seven miles N. E. by E. from the

said blue licks," &c.

The only objection to this entry is, that the beginning is uncertain.

Were the validity of this objection to be admitted, it would shake almost every title in Kentucky. If it be recollected that almost every acre of good land in that state was located at a time when only a few individuals, collected in scattered forts or vil. lages, encroached on the rights of the savages and wild beasts of the country, that neither these sparse settlers, nor those hardy adventurers who travelled thither in quest of lands, could venture out to explore the country, without exposing their lives to imminent hazard, that many of those who had thus explored the country, and who made locations, were unlettered men, not only incapable of expounding the laws, but some of them incapable of reading, it is not wonderful that the courts of Kentucky should have relaxed, in some degree, the rigour of the rule requiring an impracticable precision in making entries, should have laid hold of every circumstance which might afford that certainty which the law has required, and should be content with that reasona. ble certainty which would enable a subsequent locator, by the exercise of a due degree of judgment and diligence, to locate his own lands on the adjaceat residuum.

The entry of Crutcher and Tibbs possesses this reasonable certainty.

The blue licks was a place of general notoriety, and there appears to have been no difficulty in ascertaining the point from which the mensuration should commence.

There being only one of the three roads leading from that point, which ran nearly a N. E. course, no subsequent locator could doubt on which road this land was placed. The entry having called for visible objects on the road about

seven miles from the licks, those visible objects BODLUT might be discovered without any extraordinary ex. Taylor ertion; and if they could not be discovered, then that call, according to the course of decisions in Kentucky, would be discarded, and about seven miles would be considered as seven miles. But those objects remained, and it appears that no diffi. culty has arisen, or ought to arise, on this, point. The jury have found it to be the beginning called for in the entry.

The entry, therefore, of Crutcher and Tibbs is sufficiently certain, and the court will proceed to examine the entry and survey of Taylor.

This entry being the last link of a chain com. mencing with Jacob Johnson, it is necessary to fix Jacob Johnson, in order to ascertain the position of Taylor.

Jacob Johnson's title is a settlement and pre-emption; a certificate for which was granted by the commissioners, on the 7th day of January, 17.80, in the following terms.

Peter Johnson, heir at law of Jacob Johnson, de. ceased, this day claimed a settlement and pre-emption to a tract of land in the district of Kentucky, lying on the east side of the buffalo-road leading from the blue licks to Limestone, nine miles from the lick on the upper road, by the said decedent's raising a crop of corn in the year 1776. Satisfactory proof being made to the court, they are of opinion that the said Peter Johnson, &c. has a right to a settlement of 400 acres of land to include the above to. cation, and the pre-emption of 1,000 acres adjoining, and that a certificate issue accordingly.

On the 21st of February, 1780, this certificate, so far as respected the settlement of 400 acres, was entered with the surveyor.

It is the opinion of the court that the 400 acres
Vol. V.

Ff

BODLEY

V. TAYLOR.

of land should lie entirely on the east side of the road, that it should begin at the distance of nine miles, and that those miles should be computed not by a straight line, but according to the meanders of the road,

In this respect the court perceives a clear distinction between a call for one place by its distance from another, if the intermediate space be entirely woods, or if a stream, which cannot well be followed, passes from the one to the other, and where a road is called for, which conducts individuals from point to point, The distance of places from each other is not generally computed by a stream not navigable, but is always computed by a road which is.travelled. It is, therefore, the opinion of the court that where, as in this case, there is no other call in the entry showing a contrary intent, and the entry is placed on a road at a certain distance from a given point by which the road passes, the distance is to be computed by the meanders of the road, and not by a straight line.

The beginning of Johnson's settiement being found, and its western side being placed along the road, the next inquiry is, in what manner the land is to be surveyed.

In order to give certainty to locations of this de scription, the courts of Kentucky have uniformly determined that they shall be understood as being made in a square. Johnson's line upon the road, therefore, must extend, along the road until two lines at right angles from each end of this base shall, with a third line parallel to the general course of the road, include, in a figure which, if the road be reduced to a straight line, would make a square, the quantity of 400 acres on the east side of the road.

The next link in this chain of entries, on which the title of Taylor depends, is Ambrose Walden's.

On the 22d of May, 1780, Ambrose Walden en

V.

tered 1,399 acres on the east side of Jacob John- BODLEY sop's settlement and pre-emption, on the waters of

TAYLOR Johnson's fork, a branch of licking, to include two cabins on the north side of said fork, built by Simon Butler, and to run eastwardly for quantity.

The cabins, it is said, cannot be found; or, if found, cannot be distinguished. The waters of Johnson's fork would be too vague, and, therefore, the validity of this entry must depend on the cal! for Johnson's settlement and pre-emption.

This is said to be insufficient, because the preemption had not, at that time, been ' located with the surveyor, and the certificate of the commission: ers was no location. Johnson's pre-emption, there. fore, had, on the 22d of May, 1780, no locality, a subsequent entry could not depend upon it; for it might be placed in any situation, or in any form, provided it be so placed as to adjoin his settlement in any point.

The argument with respect to the pre-emption ap: pears to the court to be conclusive. This

pre-emps tion right certainly had no locality on the 22d of May, 1780, and an entry made to depend entirely on it would have been too vague, too uncertain, to be maintained. But it does not follow that the entry of Ambrose Walden is void. He does not call singly for the pre-emption, he calls for “ the east side of Johnson's settlement and pre-emption right;" and it seems to the court that a fair application of the principles which have governed in Kentucky in similar cases, will maintain this location.

The settlement was actually located; the pre-emption, at the time, had no other than a potential existence; and the uniforin course of decisions appears to have been to discard one call which is either im. possible or uncertain, and to support the entry, if there be other calls which are sufficiently certain. The decisions have gone so far as to dismiss a part of the description of a single call, if other terms of

« PreviousContinue »