Graham v. Dudley

10 F. Cas. 919

• Court: U.S. Circuit Court for the District of Western Tennessee
• Decided: July 1, 1813
• Status: Published

Opinion

BX

THE COURT.

By a law which passed in the spring of 17S3 the holders of warrants were authorized, after the first day of the following October, to make their locations. At that time no book was required to be kept in which the entries were to be made; nor did any law pass making it necessary until some time in June, 1784. In the mean time a great many locations were made and deposited with the surveyor. When the law passed requiring a book to be kept, these locations were forwarded in the lump by the surveyor to the person whom he had appointed to keep the books. They were then entered in the entry book without any regard to their respective dates; so that he who made the first location, and deposited it first with the surveyor, may stand second on the entry book. We consider it a matter of fair legal- inference that the date of the location is the time it was placed with the surveyor; and that it takes its effect from that time, and not from its place on the book of the entry taker. If, then, the entry of Read is good in other respects, .the defendants must prevail. Read’s entry calls for Little Har-peth and Tatum’s line. It is impossible to comply with both these calls, as they are utterly repugnant to each other. Which then shall be rejected? We conceive that where there are two calls in an entry repugnant to each other, the one general and the other locative, and both equally notorious, that the general call ought to be rejected as surplus-age, and the locative call adhered to, under a well-known principle that such a construction ought to be given to an entry, that, if possible, it may live rather than perish. We are, therefore, of opinion that the call for Little Harpeth may be rejected. The principal difficulty, however, is about the call for Tatum’s line, even although the other call be rejected. At the time Bead made his entry Tatum had no legal claim anywhere. A general knowledge that Tatum had a claim somewhere in the neighborhood would not be giving sufficient locality to it to authorize a man to call to adjoin it If a particular spot becomes notorious as the claim of Tatum, so that it can be certainly identified, although in fact he has no claim there, then a call to adjoin it will be good, and special enough; but we do not conceive that a call to adjoin a claim, the lines of which cannot be identified, or a line which has no legal existence, notwithstanding these uncertainties may be removed before the making of the adversary entry, will be sufficient. If the jury should be of opinion that Tatum’s claim as to locality and identity was notorious in the country before the 20th day of December, 1783, the time when Bead made his entry, they will find for the defendant; otherwise they will find for the plaintiff.