Cleland v. Thorp

1 Ky. 192

• Court: Kentucky Supreme Court
• Decided: October 15, 1798
• Status: Published

Opinion

By the Court.

It appearing that James Thorp’s entry with the surveyor was made prior to the entry of Philip Cleland, the first and principal thing to be determined is the situation of the said James Thorp’s entry, or in other words whore and how a survey thereon ought to be made. To do this it is also necessary to ascertain the situation of the entries on which it depends, and how surveys ought to have been made on them.

It is admitted by the parties and their counsel, and appears from the surveyor’s report exhibited in this cause, that Wallace and Clarke’s entries are properly surveyed; and if so, it seems to •the court that Prewitt’s entry also is properly surveyed. The situation of the three last named entries being thus fixed, it is the opinion of this court that Irvine’s survey (agreeably to his entry) should have been so made as to adjoin the county line and Wallace and Clarke’s lines, so as, together with Prewitt’s survey to form a square; that William Thorp’s survey (agreeably to his entry) should have begun at the north-west corner of Irvine’s survey, when made as aforesaid, and extend south 600 poles, and then west so far as to include the quantity it calls for; and that Othey Thorp’s survey (agreeably to his entry) should have began at the north-west corner of William Thorp’s survey, when made as aforesaid, and extend south and west so as to include in a square the quantity it calls for, and then it is the opinion of. this court that James Thorp’s survey (to be made agreeably to his entry) should have began at the north-west corner of the said Othey Thorp’s survey, when made as aforesaid, and have extended south and west so as to include in a square the quantity it calls for.

It being evident from an inspection of the said surveyor’s report that th'e survey of the said James Thorp, when made as aforesaid, will not include precisely the same land that has been decreed to him by the said court of quarter sessions. It is therefore decreed and ordered that the decree of the said court of quarter sessions be reversed, annulled, and set aside; and this court now proceeding to make such decree as the said court of quarter sessions should have pronounced heroin: It is decreed and ordered that the said James Thorp do recover from the said Philip Cleland all that part of his survey which shall be found to be included within the said James Thorp’s survey, when made conformably to the foregoing opinion relative thereto, and also within the survey on which he has obtained a patent. Order of survey, and costs divided.