Miller's Heirs v. Haw's Heirs , 3 Ky. 30 ( 1805 )

By the Court.

Miller’s heirs being complainants in the court below, it is proper first to investigate their claim. The entry on which it is founded, is, “■ Henry Miller enters 4000 acres of land, &c, beginning 640. poles south-west of a large ash tree marked with the letters I. C. standing on the Buffaloe road from Grant’s. Station to the lower Blue-Licks, and about five or six miles from said Licks,” &c.

It seems to be admitted that Grant’s Station and the lower Blue-Licks were sufficiently notorious at the time this entry was made, and an ash tree is shewn on that road of about two feet diameter, at the distance of between five and six miles from those Licks, which is proven to have had the letters I. C. on it by the person who . made them, both before and after the time the entry was made ; and it is proven that he shewed these letters to another person, before the entry was made, on this tree, of some other tree-near it: and further, that by his directions they were several years afterwards found by Miller’s agent; but the same agent proves, that before he received those directions he had spent some time searching for that ash tree without success ; and it is not proven that any other person ever saw these letters ; not even one of the chain-carriers, who was employed in making Miller’s survey, although his deposition has been taken 'in this suit; which induces a violent presumption that the letters were too obscure to be easily discovered: indeed, from two depositions, especially M’Dowell’s, the presumption is strong, that those who prove the letters are mistaken, and that this tree was never marked with the letters I. C. or any other letters. Therefore, this court cannot determine that the tree could have been found by using reasonable diligence ; and therefore Haw’s heirs, who have the elder grant, must hold the land in contest-

Decree affirmed.