Hawkins's Heirs v. Marshall

20 Ky. 285, 4 T.B. Mon. 285, 1827 Ky. LEXIS 16

• Court: Court of Appeals of Kentucky
• Decided: April 5, 1827
• Status: Published

Opinion

Opinion of the Court by

Judge Owsley.

By the decree to which this writ of error is pro-scented, the heirs of Hawkins were directed to conveys to Marshall, &r. who. were complainants in the court below, their legal title to the land in contest, derived under a grant from the Commonwealth, of elder date than, and adverse to, that under which the complainants in that court claim.

The principal question debated at the bar, and the only one. worthy serious consideration, involves an enquiry into the validity of the entry through which the complainants assert their equity, and which is as follows:

"November. 25th, 1783.

“Jacob Fishback and Charles Morgan, as tenants in common, enter forty thousand acres of land on a Treasury warrant, No. Sen. — beginning at the bead of the main branch of the north fork of the Big bone lick creek, and running north and south an equal distance; thence, from each end of said line, west for quantity.”

The entry was amended on the first of January, 1784, by adding, “to lie in a square.”

Upon reading this entry, with a view U> ascertain its beginning, the first object that naturally arrests the attention of the enquirer is, the Big bone lick creek. It is upon the head of the main brands of the north fork of that creek, the entry calls to begin; and to enable the enquirer to find the head, ho must necessarily ascertain whether or not, at the date of the entry, there was such a creek as the Big bone lick creek.

Evidence of the names of the different branches of the Big bone lick creek.

There is represented upon the connected plat, a lick, which, from its being a place of great resort by wild beasts and game of various sorts, had, at an early period, attracted the attention of hunters and others, and from the peculiar and extraordinary size of bones found there, had obtained the name of Big bone lick; and before the date of the entry had become notoriously known by all those conversant in the vicinity by that name. There is also, represented upon the plat, a stream or creek passing through this lick, southwardly, which after uniting in its course with several other streams, finally discharges itself in the Ohio, at the distance of about five miles, with its meanders, from the lick. The creek which is thus represented to pass through the lick, (lie complainants contend, is the Big bone lick creek; and on the part of the defendants in the court below, it is admitted, that at its entrance into the Ohio river, was called the Big bone lick creek, but it is insisted by them, that in ascending the creek about a mile and a half, to the first stream coining info it on the south side, it lost the name of the Big bone lick creek, and that above that, it was known by the name of the north fork of the Big bone lick creek, until it again forked, and from thence, up the stream, passing the lick, was known by the name of the Big bone fork, or the north fork of the north fork of Big bone lick creek.

Between the different names assigned to the stream passing the lick, there is considerable contrariety of opinion expressed by the witnesses, so much so, that were-there no other circumstance calculated the shed light upon the subject, we should have great difficulty in coming; to a satisfactory opinion. But when it is recollected, that for years before the, entry was made, the lick had obtained- the name, and was generally known by the Big bone lick, it is but natural to suppose, that the creek de lived its name from the lick through which it passed and was, at the, date of the entry, known as high up as the lick, by the, name of the. Big bone lick creek. Having received its name from the lick, it is not ex-ordiordinary, that the, creek should, afterwards, known by the name of the big bone creek at its entrance into the Ohio. And in ascending or decending the creek, it is highly probable, that in speaking .with reference to its different branches, the branch uniting and renting into it nearest the Ohio, may, by some, have been called the south fork, whilst in contradistinction thereto, the principal creek may have been called the north fork, until, in ascending, it a. gain forked into what k called, by some, of the. witnesses, the big bone fork, and the mud lick fork But notwithstanding such may have been the names by which the creek and its branches may have been called by some, others again say, that, the stream passing the lick was, from thence, to its entrance into the Ohio, known by the name of the Big bone lick Creek; and from the notoriety of the.lick front which the name was derived, together with the peculiar fitness of the name to that stream, we apprehend, that.subsequent locators,, by the exorcise of ordinary diligence, would have had no difficulty in satisfying their minds, that the Big bone lick creek passed the lick. That stream is, in point of fact, a creek; it pass.’s through the, lick from which it obtained its name, and deserves emphatically the appellation of the Big bone lick creek.

Call for the head of the main branch of the north fork of Big bone lick creek, held valid.

Understanding therefore, (lie stream that passes the Sick to be the Big bone lick creek, most of the objections taken in argument to the entry, must vanish. For if the creek at the lick be the Big bone lick creek, an enquirer for the. head of the main branch of its north fork, would naturally search frr a fork coming into it on the north, and could not have been misled by any of the forks or branches coming in on the. southwardly side of the creeek as was contended in argument. Having his attention, therefore, directed to a fork falling into the creek on the most northwardly side, the enquirer with-. Id have, no difficulty in finding the north fork. He would discover a fork uniting with the crock on the north; immediately below the lick, and with a knowledge of the creek and its branches, could have no hesitation in pronouncing that fork, the north fork. And, after finding the fork, the enquirer, by following the stream, would, in a short time,) with but little trouble, arrive with absolute certainty at its source, the place called for as the beginning of the entry.

In the general, a call for the head of a creek is not sufficient—But where that head is easily found, it will do. Wickliffe and Haggin for plaintiffs; Crittenden for defendants.

We. know that entries calling for the head of water courses have been repeatedly adjudged invalid.; and it would not be going too far to say, that in the general, from the uncertainty usually attending such a call, and the difficulty in ascertaining the true head of a creek, an entry depending upon a call for the head of a creek, should not be sustained. But there are cases in which entries, depending upon such a call, have been sustained, and from the accuracy of description contained in the entry now in question, and the facility and certainty with which the head of the main branch of the north fork of the big bone lick creek might be ascertained and known, we. apprehend, the court below was correct in adjudging the entry a valid one, as, was held by this court in the case of Buford against Marshall, spring term, 1807.

The decree affirmed with cost,