Bodley v. Harris' Heirs , 8 Ky. 134 ( 1817 )

Judge Logan

delivered the opinion of the court.

This is a suit for land derived under the following entry: “February 21st, 1785. Robert Clarke, jnr. assignee of “Philip Duvall, enters 10,000 acres of land on two treasury “warrants, No. &c. beginning at the west corner of Wil“liam Goar’s 800 acre survey, which lies Nk E. of the Up“per Blue Licks, a white hickory and Spanish oak: thenee “with his line S. 45® E. 400 poles to his S. corner a mulberry and two ashes, and with the line of the same N, 45° f‘E. 320 poles to two elms, two walnuts and a cherry; it “is also corner to Joseph Perrin’s survey of 1000 acres'; “and with aline of the same S. 45® E. 303^ po. to ahick-“ory and Spanish oak: thence with his line N. 45° E. 480 “po. to a mulberry, elm and horn beam the east corner to said “survey, the course continued 160 po. Also fijpm the begin“ning S. 45° W. to an intersection with a line of Williams’ “pre-emption that includes the Upper Blue Licks; and “with a line of the same up Licking to the N. E. corner of “the sanie:, thence runnings. 45 E. so far that lines run“ning N. 45 E. and N. 45 W. will strike the line of 160 “poles from Perrin’s east corner, to be laid off in one or “more surveys by lines parallel to each other.”

Andón the 13th of October, in the same year, made the following amendment to his entry: — ¿‘Strike put the words “beginning at the west corner of William Goar’s 800 acre “survey, which lies N. E. of the Upper Blue Licks a white “hickory and Spanish oak, thence with his line S. 45 E. “400 po.” — and instead thereof: “beginning at a beech “and white oak in a line of William Goar’s survey of 800 “acres, which lies N. E.of the Upper Blue Licks: thence “with said Goar’s line S; 45 E. to his corner.”

An tr 1 Un/fo/ the lines of a sav-j^ywluchliad j^n corded, and possessed no yetvaUffiand shall be’ at-tachedtotbe survey was made, if that with certainty.

The surveys of Gore and Perrin were both made on the 1st of January, 1785; neither appears to have been recorded; and neither possessed the-necessary degree of notoriety tasustain a depending entry; and the survey of Williams On the Upper Blue Licks, had not been made at that time, If, therefore, the entry of Clarke can be supported, it must be through the validity of the entries upon which those surveys were made, and the means they afforded in conducting an inquirer to the land in question.

But Goar’s survey was made by virtue of an entry in the name of Richard Parker: so that no aid from that entry was attainable from the call for his survey, which may not even have been returned to the surveyor’s office. Clarke’s entry, however, if maintainable at all, must de* rive its support from Perrin’s claim, as connected with M’Alexander’s: and thence tracing its calls as fitted to the objects therein specified.

Perrin’s entry was made on the 3d of Dec. 1782, calling to adjoin the south east side of John M’Alexander’s entry of 1200 acres, beginning at his south corner, and running with his line a north east course the whole length thereof, then at right angles to the same a south east course for quantity.

On the same day an entry of 1200 acres was made in the name of John M’Alexander, lying “about two miles “N. E. of the Upper Blue Licks, beginning on a buffhloe “road near the head of a branch which runs nearly N. E. “running from the beginning S. E. 200 poles, and also 200 “poles N. W. from the said, beginning; then from the extremities of this line at right angles N. E. for quantity.”

It is only by reference to this entry as the foundation of the appending claims, that the entry of Clarke can be sustained. The Upper Blue Licks, the buffaloe road, and the branch, are most clearly established as sufficient calls of location; from whence the position of M’Alexander’s claim, and that of Perrin depending thereon, could easily have been ascertained.

. But as the entry of Clarke called for the survey of Pef* rin, it becomes important to inquire in what respect a subsequent locator could have been more bewildered from this call, than if the entry had been called for?

The locative call in the entry of M’Alexander is for two miles from the Blue Lick on the road; which is represented to be near the head of a branch running nearly N. E. It is proved that this is the only branch which could haVe been supposed intended. And although it is more than two miles from the lick, and still farther to its intersection with the road; yet with a knowledge of the lick, road and branch, a subsequent locator in order to ascertain the survey of Perrin, would most probably have directed his inquiries to this point on the road; and if he had, the line being plainly marked, running the course represented in the entry, at, 200 poles, cornering on two elms, two walnuts and a cherry, the trees called for in the entry as the corner of Perrin: and from thence the other lines plainly marked conspicuously with the courses and distances in the entry specified; he must readily have perceived that those were the lines intended.

But supposing, that instead of going to the place where the road crossed said branch, the locator to ascertain the beginning of M’Alexander’s entry for the purpose of being from thence conducted to the land of Perrin, which being located with precision, would have conduced to the presumption, that it had been accordingly surveyed; and had ascertained, by admeasurement, that point at the termination of two miles along the road from the lick: from the entry he must have learnt that Perrin’s land was 200 poles S. E. of that, continuing the same course and N. E. from the termination of the 200 poles. And as that claim must evidently have been supposed to have been surveyed from the calls in Clarke’s entry, we cannot imagine that there would have been much difficulty in establishing the lines and positions of that and the other surveys adjoining the same.

We apprehend that it will be unnecessary to determine upon the precise manner of surveying Clarke’s entry from Goar’s survey towards the Blue Lick; because, survey it in every possible manner from Goar’s survey to the river, or to adjoin 1000 acres laid on the Upper Blue Lick, and the land in contest will still be comprehended; for by running with Perrin’s lines, passing his N. E. corner 160 poles, and thence S. E. conformably to the entry, will extend so far to the S. E. as to include the sanie land in contest, let the line from Goar’s S. W. boundary towards the river be run in any manner. •

Hughes for appellants, Wickliffe for appellees.

We are, therefore, of opinion, that the decree of the court below is incorrect, and must be reversed with cost, and the cause remanded, that a decree may be rendered agreeably to the foregoing opinion; and such other orders and decrees made, as may be consistent with law and equity.

The counsel for the appellees prayed for and procured a re-hearing, and the cause came on at the spring term, 1818, when the foregoing decree was ordered to stand unaltered.