Citation Numbers: 12 Ky. 271
Filed Date: 12/10/1822
Status: Precedential
Modified Date: 7/29/2022
THE appellees, having the elder grant for the land ip controversy, recovered judgment therefor, in ejectment, against the appellant, who thereupon filed his bill with injunction, asserting a superior right in equity, derived under two entries, one in the name of l)a. yid Leitch for 30,000 acres, and the other in the name of ¡George Underwood for 7,500 acres. The appellees, in their answer, rely exclusively upon their elder grant, and put the appellant to the proof of these, claims. The bill, on a final hearing, was dismissed, and the appellant has brought the case to this court by an appeal.
The entry in the name of Leitch is not relied on for the appellant in this court, and need not be recited.
Moody’s entry, upon which Underwood’s depends, was made the 22d of March 1784, “ beginning at the Mouth of the second cffeek that runs into the South Fork of Licking, on the west side, below where Bird’s road crosses said fork first below Mill creek, (for the better description of this creek, John Keiser lay in camp with his family, last winter, about half a mile below the mouth of said creek, on the river bank;) thence from the mouth of said creek up the meanders of the river, so far as one mile, when reduced to a straight line; and from said begiriningdown the meanders of said river five miles, when reduced to a straight line; thence from each end of the above mentioned line of six miles, westwardiy, at right angle#, so far as will include the quantity.”
The South Fork of Licking and Bird’s road are indisputably proved to have been generally known at the date of Moody’s entry, and a place is delineated on the connected plat as the one where Bird’s road crossed the South Fork of Licking, which is also proved to have been well known. Below that place, two creeks are shown which run into the river on the west side, the lower of which is claimed by the appellant as the beginning of Moody’s entry; and it must, no doubt, be taken to be the true point of beginning, if-the place where Bird’s road crossed the river, as delineated on the connected plat, is the one intended to be described by the locator, it is contended, on the part of the ap.pellees, that it is not; because it is not shown to be the first place where Bird’s road crossed the river below Mill creek, as described in the entry. Mill creek is mot represented bn the connected plat ; and although the witnesses speak of the crossing of Bird’s roadj as delineated on the plat, as tiie first below Mill creek, yet they say tliat Mill creek was not known to' them, at the date of the entry, by that name. Mill creek must, therefore, be taken not In have existed, or
Moody’s entry, therefore, must, we think, be deemed valid ; and, of course, that of Underwood, depend, ing. upon it, must be equally so.
As to the mode of surveying thosé entries, there is [¶] room for a difference of opinion, and any directions upop that subject we conceive unnecessary. To so much of the land in controversy as is included in the'
The decree of the circuit court must be reyersed with costs, and the cause be remanded, that a decree iriay be entered for the complainant in that court, in conformity to this opinion, and such orders, &c. to be made as may be nécessáry to effectuate the samé¿