Meriwether v. Hite , 2 Ky. 284 ( 1804 )

This rehearing was obtained by Meriwether, and is confined to that part of- the decree of the court of appeals, pronounced in this cause, which relates to the mode of surveying his entry for two thousand acres of land, on consideration of which, the court is of opinion that the decree has given this entry all,the effect it ought to be allowed. The call in the entry to include Knox’s old survey can not, with propriety, be rejected, because a subsequent locator could not have discovered that it was repugnant to the other calls in the entry, or to any of them; nor could he consider it as surplusage, because the form and situation of the land intended by the entry must appear to him materially to. depend on this call. And until Knox’s old survey could be discovered, a locator could not ascertain from the other calls in the entry that it was to extend any definite distance further to the southward than has been prescribed by the decree. But it has not been proven that Knox’s old survey had any reasonable degree of notoriety when this entry was made, or that it could have been found by using any reasonable degree of diligence. As to the objection, that in the manner the decree directs the survey shall be made on this two-thousand-acre entry the quantity will not be included, it is only necessary to observe, that an entry can not take more land than is certainly •covered by it; and, in this instance, if Knox’s old survey could have been found, it might have been so situated that the entry might not have included two thousand acres.

Wherefore, it is decreed and ordered, that the said decree of this court, entered up herein on the 20th day of October, 1803, do stand unaltered and confirmed, which is ordered to be certified to the general court, together with said decree.