Clay v. Harris

7 Ky. 153, 4 Bibb 153, 1815 Ky. LEXIS 81

• Court: Court of Appeals of Kentucky
• Decided: October 31, 1815
• Status: Published

Opinion

OPINION of the Court, by

Judge Logas.

This is a boniest for laud under conflicting claims. The appellant relies on his elder patent, and therefore it will be necessary only to investigate the claim cf the appellees.

They derive their right under an entry in the name, of Wallace Estill for 500 acres, made on the 11th -day of May 1780, lying'on an east branch of Muddy creek, about two miles we,si of the Mulberry lick, running up and down the branch for quantity.”

Muddy creek and the Mulberry lick arts both proved to have possessed unquestionable notoriety. So that the only doubt which can possibly arise, is with respect to the branch intended by the locator. By pursuing a west course from the Mulberry lick, an eastern branch of Muddy creek would be crossed at not quite the distance of two miles ; but that distance would be obtained before reaching any other branch, or approaching as near to one as that it had crossed. And besides, other parts of said branch, which bear towards its source from said crossing a southwestwardly course, would be niglier the termination of two miles according to the magnetic meridian, the usual mode in this country, and especially at that day, of pursuing courses, and w hich for that reason has been determined to be the proper one; hut it would be still nigher if the true meridian were pursued. Upon pursuing, however, either course, will produce the same result in the case, as it will strike so near the head of the branch tiiat by barely comprehending it and lying on the branch will place the principal part of the claim below such point. But the course in fact on the crossing of the branch is in this entry the locative call j the distance is but descriptive of the branch, which is represented to be “ about two miles from the Mulberry lick.” Without regarding the course as locative, then, for want of some certain point on the branch, or clew by which one part instead of another on the branch should be occupied by the entry, it could not be sustained. But the call to lie on an east branch of Muddy creek, “ about two miles” from the Mulberry lick, described branch; and the course given designated the point on the branch.

It only remains, therefore, tp determine upon the manner of laying down the claim. In this we also concur with the court below, that the general course of so much ^le just including its head, as will fall within a square of 500 acres, should regulate the course of the survey, extended at right angles equal distances from the extremities of such line.

Decree affirmed with costs.