Buckner v. Feagins ( 1810 )

OPINION of the Court, by

Judge Wallace.

The parties claim the land in contest under different titles derived from the commonwealth of Virginia. Feagins was complainant in the court below, and claims under the following entry: “ May 17th, 1784, Daniel Feagan enters 11,000 acres of land, &e. lying on the waters of the Ohio, on Haw creek, beginning one half mile west from the beginning of an entry made in the name of John Kenton, assignee, &c. binding with his line as far as it will admit, and continuing four miles due west from the beginning; thence north at right angles from each end of said line,” &c. John Kenton’s entry, which must be taken as part of Feagins’s entry, is as follows: “ January 1st, 1783, John Kenton, as-signee, &c. enters 5000 acres of land, beginning on the head of Haw creek, about half a mile south of Scott’s spring ; thence 480 poles east from said beginning, 480 poles west; thence to extend from each end of given line a south course,” &e.

It may not be improper to premise that in the case Craig vs. Baker, formerly decided by this court, (spring term 1808) Baker claimed under an entry in which Haw creek, a branch of the Ohio, and Scott's spring, were leading calls. But that entry described the spring as being eight or nine miles from the mouth of Limestone. In the entry now to be decided on, it is necessarily implied (although not expressed) that Scots',, spring is near the head of Haw creek ; and there is a great difference between the ctidenee produced in. ti». suit and in this. So that this suit ought to be decided without regarding the decision in that suit, further than the same principies -may be found to be applicable to both of them.

From the testimony exhibited ⅛ this suit, it appears., that as early as the year 1773, the water course called, for in the entries now to be considered, was known to-one or two persons by the name of Bracken creek, and' that shortly afterwards it was known to several other persons by that name, but to a greater number of persons by the name of Haw creek ; which continued to be the case until about the period these entries were made^ when the name Bracken creek became more prevalent. Indeed it is not expressly proven, that this water course, itself was known to the generality of those who were conversant in its vicinity at the date of Feagins’s entry ; but when it is considered that it is as large, or nearly as large, as any of the other streams which empty: into the Ohio river in that quarter of the country ; and that it is situated in that quarter of the country which first attracted the attention ®f a multitude of the early adventurers who came down the Ohio, and that it is proven to have been explored or seen by many of them in the years 1774, 1775, 1776 or 1777, it seems to the court, it may rationally be presumed, that this water course had become sufficiently notorious at the time Feagins’s entry was made. But a doubt arises, whether those who knew this water course by the name of Bracken creek, or wh > had heatd it described by that name, would not thereby h ive been prevented from acquiring the knowledge th it it was also called Haw creek, and have supposed that the name Haw creek, if they ever heard it mentioned, had been given to some other stream. But if this doubt could be removed, it is apprehended a much stronger one will occur in considering the call for Scott’s spring, contained in Kenton’s entry, which composes a part of Fcagins’s .entry,

Simon Ker.io.i deposes, that in the year 1775, he made an improvement at this spring, and that in the year 1776, he sold the improvement,to one Scott, and that from that time he called the spring Scott’s spring. And Laban Records deposes, that he has hunted on Haw creek, from its junction with the Ohio to its source, and ihst he had been on all its various branches, and he ns-. ver knew any noted spring on that creek, but the one called Scott’s spring ; and that he never knew any spring thereon, but the one alluded to, until the people dug them j and moreover, that the spring called Scott5* spring, was and is a remarkable large spring, and is on the head drains of Haw creek or Bracken, and is the head source of that creek. John Dowden also deposes, that he was shewn this spring in 1785, and that he did not know of any other spring of note on Haw creek ; and that this spring was very much resorted to by game as a watering place ; and he further deposes, that at an early period of the settlements in Mason county, he was in company with Simon Kenton at this spring, who said it y?as Scott’s spring, and pointed out some trees marked by him which had an old appearance. But from the testimony exhibited, it is not proven that this spring was known by the name of Scott’s spring to the generality of those who were conversant in its vicinity, at the time feagins’s entry was made. Then a question of high importance arises, could other locators, by using reasonable diligence, have found this spring with certainty, and known that it was the spring intended ? From the entry it must be inferred, that it was near the head of Haw creek ; and from tine surveyor's report, this is shewn to be the fact. From the testimony which has been recited, it is likewise proven, that it is situated on the head drains of that creek, or rather that it is the bead or source of the creek ; that it was a remarkable large spring ; and that it appeared to have been very much resorted to by game or wild beasts, as a watering place ; and it ought to be presumed, that they had made paths to it, and that the ground around it was much trodden ; therefore it is conceived that it might have been found without much loss of time. But the second clause of the question yet remains to be answered : how could It be known to be the spring intended i The entry does not contain any description of this spring, only the expression, beginning on the head of Haw creek, about half a mile south of Scott's spring. From which other locators would understand, that the spring was not the fiead of the creek, but about half a mile to the nonh of it. And it is not proven that the creek has a definite head on the course, and at about the distance from Scott’s spring which are specified. So that it is cle.1-the situation of the spring intended could not have been ascertained in this way ; at least it is not shewn that it could have deen done. Indeed, from the surveyor’s report, it is probable that the head of Haw creek, like that of many other streams, is composed of several drains, the precise extent of which is continually varying with the weather; and the words in the entry, on the head, indicates that such an indefinite head was meant. It Heed not be observed, that it cannot with props iety be urged, that a tract of country which might he several miles in circumference, ought to have been explored, to discover whether it comprehended any other spring, or a spring which would better fit the call.

The result of the investigation we have made amounts to this : it does not appear that either Haw creek or Scott’s spring are so described in these entries, that they could have been found with certainty bv using reasonable diligence, or that they were known by those names to the generality of those who were conversant in th. ir vicinity at the time Feagins’s entry was made.

And the doctrine has long been established, either description or notoriety is indispensable. Therefore it seems to this court that the court below erred in sustaining Feagins’s entry. — —Decree reversed, &c.