Hathaway v. Forbes's heirs

4 Ky. 90

• Court: Court of Appeals of Kentucky
• Decided: May 31, 1809
• Status: Published

Opinion

OPINION of the Court, by

Ch. J. Bibb

Hugh Forbes exhibited his bill to have relief against the elder grant obtained by Hathaway, in consideration of an adversary warrant; the complainant died during the pen-dency of the suit, which being revived by his heirs, was, finally heard and a decree pronounced in favor of the complaint; from which Hathaway appealed.

Forbes’s claim to the land in controversy is derived under a village right of settlement and pre-emption, granted by the commissioners to Charles William Cross, for raising a crop of corn in 1776, “-lying near the head of Bucklick creek, where there is a remarkable round hill, to include his improvement.”

ment was not were otf,er mounds, and other im-s on Bucklick creek,

On the 11th of June, 1780, Henry Pawling, assignee of Charles W. Cross, entered 400 acres, upon a certificate, &c. “lying near the head of Bucklick creek, where there is a remarkable round hill, to include his improve-inentd’

On the 2d December, 1780, an entry was made as follows: “Hugh Forbes, assignee of Henry Pawling, enters a pre-emption of 1000 acres, adjoining his settlement all round, on both sides of the creek.”

The creek, on which these entries have been surveyed, was never called Bucklick creek by a single individual; but another creek in the same neighborhood, only five or six ifiiles from the land in dispute, was, before and about the date of these locations, called and known by many Bucklick creek, from a remarkable lick on the creek, since called Grassy Lick. The remarkable hill, to which the description in these entries have been forced to attach, was called and known by the name of the Little Mountain, and the creek, Small Mountain creek; moreover, there was a remarkable round hill near the head of Bucklick, or Grassylick creek, resembling the Little Mountain. The improvement claimed as Gross’s, seems not to have been identified at or about the date of these entries, ev’en by Forbes himself, much less notoriously and generally distinguished from the other improvements in the same neighborhood, above and below the Little Mountain, and in the neighborhood of other mounds, of which there are many on Small Mountain creek and Grassylick or Bucklick creek. There is no evidence from which it can be presumed that the improvement claimed, or any improvement, was generally known as Cross’s previous to the making of the surveys in question, so as to give reasonable notice of an intention to appropriate the land in controversy, by virtue of these entries, or to correct the misleading call for Buck-lick creek. According to principles heretofore well settled by the decisions of this court, the claim to the land in controversy, by color of these entries, must b% declared unavailing against the elder grant.

Decree reversed.