Bodley v. Desha

14 Ky. 291, 4 Litt. 291, 1823 Ky. LEXIS 191

• Court: Court of Appeals of Kentucky
• Decided: November 28, 1823
• Status: Published

Opinion

Opinion op the Couiit, by

Jüpge Owseey.

THIS is a contest for land, depending upon the valid-itj of the following entry: _

_ “ 4th January, 1783. John Marshall, .jun. assignee, enters 6,052 acres of land, on three treasury &c. beginning .in Hugh Shannon’s line, 150 poles from his south-east corner; thence with the said Shannon’s, westwardly, to his corner; thence still westward-3y, to run with the southwardly side of Henry Owsley’s 400 acre entry, to Fitzpatrick, -and binding with the southwardly side of his land, westwardly, stopping 150 poles short of his south-westwardly corner; from thence and from the beginning in Shannon’s line, at right angles, southwardly, till a line as nearly at right angles with these two .lines as the case will admit of, will in-elude the quantity. This land lies on thq north fork Licking.”

The claims referred in the above entry, are as follow's :

“ 14th January, 1780. Hugh Shannon this day claimed a settlement and pre-emption to a tract of land lying on the middle road leading from Laurence’s run, including a cabin in the fork of a run, about nine miles from the lower Blue Licks, by raising a crop of corn in. the country in the year 1776, and residing tvrelve months before the year 1778,” &c.

“3d February, 1780. Hugh Shannon enters 400 acres by certificate, &c. lying on the middle road leading to Laurence’s creek, including a cabin in the forks, of a run, about nine miles from the lower. Blue Licks.”

'•‘■June 1th, 1780. Hugh Shannon enters a pre-emption warrant of 1000 acres, adjoining his settlement on Licking, and run south-east for quantity.”

“ April 23d, 1780. John. Fitzpatrick this day claimed a pre-emption, at the state price, of 1000 acres of land in the district of Kentucky, on account of marking and improving the same in the year 17.75, lying on the waters of the north fork of Licking creek, to the west* and adjoining the lands of Hugh Shannon, to include his improvement,” &c.

“ May %9th, 1780. Terrell and Hawkins enter 1000 acres of land on pre-emption warrant, No. &c. assignees of John Fitzpatrick, as tenants in common, on the north fork of Licking creek, to the west, and adjoining the lands of Hugh Shannon, to include his improvement.”

“ 1780, October 17th. Henry Owsley enters 455 acres upon a treasury warrant, on the Buffalo road ' leading from the lower Salt Lick to the head of Laurence’s creek, joining Hugh Shannon’s settlement and pre-emption, to the west side, and joining John Fitzpatrick’s pre-emption on the east side, extending south for quantity.”

We have been incapable of discovering the evidence which, according to any rational interpretation, will enable us to fix, with any thing like precision and certainty, the location of Shannon. The evidence is sufficient to establish the. road leading from the Blue Licks to Laurence’s creek, and at the distance of about nine miles from the Licks, the road passes two branches of a run, which unite not very remote from the road; so that the location of Shannon might perhaps be sustained, if the cabin called for was sufficiently established by the proof. But there is no evidence which goes to prove the existence of a cabin any where in the forks of the run, at the date of Shannon’s certificate or entry; and without identifying the cabin which the entry calls to include, it is impossible to say what land the location includes. The only evidence in relation to a cabin in the forks of the creek, is that of John Kenton, who states that several years after the date of the entry, he was shown a cabin by Simon Kenton, for Shannon’s cabin; but he is unable to say that it existed at the date of the entry, or that it was in fact Shannon’s; and although the deposition of Simon Kenton is-taken, he maintains a perfect silence as to the cabin, which John Kenton states was shown to him.

We might also add, that there is a total absence of proof as to the improvement called for in the entry of Fitzpatrick, without which, neither Fitzpatrick’s nor Marshall’s entries can be sustained, even were the cabin, called for in the entry of Shannon, sufficiently identified and proved.

ft was, therefore, correct in the court below to diss the bill of Bodley, settingup the entry of Marshall ¿'gainst the elder patent of Desha.

The decree must be affirmed with costs.