Davis's Heirs v. Lockhart's Heirs

3 Ky. 367

• Court: Court of Appeals of Kentucky
• Decided: May 11, 1808
• Status: Published

Opinion

The Chief Justice, delivered the opinion of the court.

The complainants in the court below, and appellants in this court, claim under an entry made 22d May 1780, as follows : “ Joseph Davis enters 1000 acres, upon a treasury warrant, on a west branch of Licking, joinirig John Hutcheson’s entry, on the said creek, on the lower side, extending down On both sides of the creek for quantity.”

Several entries fucceffively adjoining, & running down on both fides of a creek» how to feefurveyed.

Hutcheson’s entry calls tojoiri Coleman on the lower side, and to run down the creek an both sides, for quantity : and Coleman calls, hi like manner, to join Joseph Craig, and rUn down the creek, on both sides, for qudn-tity.

Craig’s entry is for 1000 acres, made on the 17th May 1780, arid expresses to lie “ on a west fork Of Licking, about two miles below where Col. Bowman encamped\ the second night, when marching to the Shaw anee towns, to include theforks of the creek, running up and down for quantity.”

The circuit court, taking Bowman’s encampment as established and notorious, as claimed by the complainants, for the one alluded to in Craig’s entry, directed Craig’s location to be surveyed, by taking the fork of Mill creek as the intersection of the two diagonals o*f a square; and thatMiU creek should biseetthe lower line(

a). That Coleman should then be adjoined to Craig, by taking the lower line as the base of 1000 acres, and extending lines therefrom parallel to the general course of that part of the creek to be included within the survey* so far that a line at right angles to that general course* would include the quantity ; which, of necessary consequence, caused the upper and lower lines of the survey* to be bisected by the creek. That Hutcheson should' jy>in Coleman on the lower side, taking 400 poles for the base, and if required, to give the length, to project equal distances beyond each corner ; or, in other words* to make Mill creek bisect the upper line of 400 poles, and then to extend lines from each extremity, parallel to the' general course of the creek, (as far as it should fall within the survey) until a fine at right angles to that general course, would give the quantity. And that Davis’s claim should adjoin Hutcheson’s survey of 1000 acres, in the like manner that he adjoined Coleman ; and that the figure of Davis’s survey should be governed by the same rules. When the claims were thus connected, according to the interlocutory decree, it was found that no-part of the land,- common to the' actual surveys of the complainants and defendants, would be included within Davis’s entry : and therefore the court dismissed the bill; from whixih decreé, the complainants below appealed.

It is unnecessary to give any opinion, as to the sufficiency of Craig’s entry ; since, if it were admitted that the place of Bowman’s second night’s encampment,, was as claimed by the appellants,'the circuit court have given the proper figure and position to the entry of Graig, and of those depending thereon ; and therefore, did rightly in dismissing the bill.

Decree of the circuit court, as to the construction of the entry under which the complainants claim title, and the dismissal of the bill in consequence thereof, affirmed.

(a) Ramfey, &c. vs. Wells, fpring term 1808, &rP.