Mr Justice M’Lean
delivered the opinion of the Court.
This appeal is prosecuted by the complainants, to reverse a decree of the circuit court of Kentucky.
The original bill was filed by John Holmes, Michael Omealy, Richard Catón, Hugh Thompson and William Slater, who set up a title under the following entry. “Edward Voss enters ten thousand acres by virtue of two treasury warrants, Nos. 8991 and 8990, beginning at the north west comer of Patton’s eight thousand four hundred acres survey; thence, with Allerv’s line, westwardly to the river, and along. Roberts’s line to the east for quantity;” “ also, five thousand acres by virtue of treásury warrant, No. 8989, beginning at the southwest comer of Patton’s eight thousand four hundred acres survey, then westwardly with Patton, Pope and Thomas’s survey; thence up the river, and on Patton’s line on the east, for quantity.”
The complainants represent that surveys having been executed on these entries, they were assigned to Peyton Short, who obtained the patents bearing date the 12th and 16th days of March 1790. That Short afterwards conveyed both tracts to the complainant. John Holmes, who, by virtue of certain contracts, holds the land in trust for the other complainants; all the complainants having a joint interest in it. The entries of Voss are alleged to be valid, and also tire surveys and patents.
The defendants are represented to be in possession of a part of these tracts of land, under grants older than the complainants’, but which were founded, on entries made subsequent to the complainants’; and they pray that the defendants may be decreed to convey their respective rights to- the complainants.
In May term 1829, the complainants filed an amended bill, in which they state that the land in contest was purchased for the use and benefit of Holmes, Slater, Catón and Omealy. That by subsequent transactions, Omealy became the trustee of Slater and Catón; and that an agreement was entered into between the complainants and a certain John. Breckenridge, by which he undertook to render certain services, for which he wa3 to have one moiety of the land: and the original deed to Hohnes, never having been recorded, was, by the complainants, handed to Breckenridge, with other papers which related'to the business, accompanied with directions to Short to make another deed; and full powers, as they are advised, were given by them to Breckenridge to take a deed from Short, vesting the title to one half of the lands in himself, and the other in the complainants. That Breckenridge having obtained possession of the deed made to Holmes, being vested with' the power, did agree with Short to cancel thac deed, and it was accordingly cancelled. And the complainants represent that Omealy, trustee for John Holmes and William Slater, and Hugh Thompson,’ trustee for Richard Catón, did on the 21st day of September 1804, receive and take a deed to Breckenridge and themselves, as above stated, and did deliver over the deed of Holmes to Short, who cancelled it by erasing his name therefrom.
It is further stated in the amended bill, that Breckenridge died before the services’which constituted the consideration on which a moiety of the land was conveyed to him, were fully rendered; and on a bill being filed by the complainants against Breckenridge’s heirs, .they were decreed to conve}'- to the complainants a certain part of their interest in the land. This decree was entered at November term 1822.
in answer to the amended bill, the defendants, Jeremiah Trout, Daniel'Trout, William Buchannan, Jacob Overpeck, John Moreland, Walter A. Moreland and William Moreland, allege that they had been in the actual occupancy and peaceable possession of all the land claimed by them for upwards of twenty years before the amended bill was filed.
li, was agreed between the parties that John Howard entered on the land in- controversy, by virtue of bis claim of seven
thousand nine hundred and forty-five and a half acres, by his tenants, within the claim of C. Clarke; that' the entry was within the boundary of said Clarke, and that Howard’s claim wholly covered the claim of Clarke; that this entry into the possession was made in the year 1804, and continued, without interruption, adverse to the claim of Voss and Short, and those who claim under them, until the year 1813, when William Moreland, a purchaser from Clarke, brought an action of ejectment against Howard- and evicted him. That possession was taken by Moreland, which has been held by him and his devisees ever since.' It was admitted that Daniel Trout, in the year 1808, purchased the claim of Daniel and Hite’s six hundred acres within complainants’ claim; and that Daniel and Jeremiah Trout entered into the possession under such purchase, and ever since have held, by themsel ves and their grantees, Overpeck and Buchannan, adversely to the complainants.
.As the entry of Voss, under which the complainants claim, was made before the entries under which the defendants claim, the complainants have a prior equity if their entry can be sustained. The validity of this entry, therefore, is the first point for examination. It calls to begin at the north west corner of Patton’s eight thousand four hundred acres survey, and for Allen and Roberts’s line. Patton’s entry was made on the 26th December 1782, for eight thousand four hundred acres," upon a treasury warrant, No. 12,311, about two miles- up the first branch above the Eighteen Mile creek, beginning at a tree marked J. P., to run north five miles, then to extend off at right angles for quantity: this entry was surveyed on the 20th September 1783, and calls to begin at a mulberry, elm and sugar tree, marked J.. P., standing on the bank of the first large creek running into the Ohio above the Eighteen Mile creek, two -miles up the said creek. On the 11th October 1783,. John Allen entered one thousand acres, part of a treasury warrant, No. 14,198, beginning at the north west coiner of Patton’s eight thousand four hundred acres survey, and running with his line south two hundred and fifty poles, thence down the creek on both sides, westvvardly for quantity,.to be laid off in one or more survevs.
Roberts’s entry bears date on the 26th December 1782; the same day Patton’s entry was made.
As Voss’s entry can only be sustained by sustaining the survey and entry of Patton, it will be proper in the first place to inquire into their validity.
To support the entry of Patton, several witnesses were examined. Merriwether Lewis states that Eighteen Mile creek, one of the descriptive calls in this entry, was known previous to the year 1782, and that Patton’s creek is the first one falling into the Ohio above Eighteen Milé creek, except Bell’s spring branch, which is not much more than a mile in length; that Patton’s creek was so called from the time, the above entry was made, and was generally pretty well known by that name as early as October 1783. He does not recollect the year he became acquainted with the tree marked J. p., but he thinks, within a year or two after the entry was made, he was at the tree marked, which stood two miles up Patton’s creek, lacking forty poles. The letters J. P. were very large, and marked on a mulberry tree standing near the creek; that Patton informed him of the entry shortly after it was made, and that he had marked the tree, and run one of the lines before he made the entry. From the appearance of the letters on the tree when he first saw it, the witness has no doubt that it was marked at the time represented by Patton. He was enabled to find the marked tree without difficulty, from P" ton’s description*of it; and he thinks that any subsequent locator could not have failed to find it. Having found the beginning corner of Patton’s survey, the witness says his north west corner, which is called for in Voss’s entry, could be found by tracing the line' of the survey to that corner.
Joseph Saunders, another witness, states, that in the year 1780, Eighteen Mile creek was well known, and that Patton’s creek is the first branch or creek of any note which falls into the Ohio above Eighteen Mile creek. In May 1783, Patton showed him a mulberty tree marked J. P. standing on the north bank of Patton’s creek, about two miles from the mouth of said creek, which he said was the beginning corner of his entry. As the letters \yere large, and the tree stood on the
bank of the creek, the witness thinks it might have been found by any one in search of it.
Several other witnesses prove that Eighteen Mile creek was Avell known before Patton’s entry, and that Patton’s creek is the first considerable stream which falls into the Ohio above Eighteen Mile creek; and that after Patton’s entry, the creek was called by his name, but they were not acquainted with his entry and survey, until some years after they were made.
It is first objected to this entry, that in the case of Merriwether v. Davidge, 2 Littel, 38, the court of appeals of Kentucky decided it was invalid. Its descriptive as well as locative calls are not sufficient, it is urged, to lead an inquirer to the beginning called for; and that a marked tree is not a good call, though the calls whicfi lead to it designate objects of notoriety, unless it be proved that the tree was marked at the time the entry bears date, or prior to that time. And, as there is no such proof in the present case; the entry must be considered void. These and other arguments are used against the validity of this entry.
As it regards the decisions of the court of appeals referred to, it may be proper to remark,' that it was made on a different state of facts from that which is proved in the present case. Merriwether Lewis, who was a party in that cause, could not, of course, be a witness; and on examining his deposition it will be seen that he states several important facts respecting the entry.
The decision of the court of appeals was conclusive upon the rights of the litigant parties in all courts; but the inquiry into the validity of Patton’s entry is only collateral to the merits of the present case, and a decision upon it, under such circumstances, can in no respect- affect the rights which were settled in the case of Merriwether v. Davidge. This consideration and the variance of the proof in that cause from the evidence in this, leave no doubt that the court should regard the validity of this entry as open-for investigation in. the present cause.
From the evidence it is clear, that Eighteen Mile creek was publicly known before Patton’s entry, and that the first branch
above Eighteen Mile creek, which suits the call, was the one on which the entry was made. A person, therefore, desirous of finding the beginning of this entry, could haye no difficulty in designating Patton’s creek. He must then search for the marked tree about two miles up this creek.
But it is objected, that the entry does not state how near the creek the marked tree stands, nor on which side of it; and that it falls short of two miles, on a straight line, forty poles. The tree stands near the bank of the creek, as appears from the evidence; and the letters marked being large, could easily be seen. The variation of forty poles from the distance called for, was as little as could reasonably be expected, when the circumstances under which this entry was made are considered; and to look for the marked tree within the range of forty poles both up and down the creek, from the exact distance of two miles, would not require unreasonable labour of a subsequent locator. Nor does it seem to be unreasonable, that he should examine on both sides of the creek.
Several of the witnesses say, from the calls in the entry, Patton’s beginning comer could have been found without difficulty. This was all that the law required. But it is said that there is no proof at what time the tree was marked. Lewis said it was within a year or two after the entry purports to have been made; and he has no doubt, from the appearance of the marks, that they were made as early as the date of the entry. Experience enables a person to judge with great accuracy how long marks have been made, from their general appearance. In May 1783, only six months after the entry, Saunders saw the marked tree. From these facts, and other circumstances of the case, the evidence established at least prima facie, that the tree ealled for was marked when the entry was made. If other trees were shown bearing the same marks at other places on the-creek, it might create so great an uncertainty as to invalidate this entry. But no such facts are proved in the case
After an attentive examination of the evidence-in relation to this entry, the conclusion in favour of its validity may be safely drawn. In coming to this result, no established principle of law is controverted, nor any sound process of reasoning.
But it is contended, that if the beginning of Patton’s entry be established, it does not follow, that the entry of Voss is good; as it calls for the north west corner of Patton’s survey, which is not the beginning corner, and that a survey which has-not been recorded 'cannot support, an entry.
Voss made his entry about twenty days after Patton’s survey was executed, and before it was recorded; but the call for the survey necessarily includes the entry, if the survey has been made in pursuance of the entry. It must be admitted that a survey of itself, which had n'ot acquired notoriety, is not a good" call for an entry. But when the survey has been made conformably to the entry, and the entry can be sustained, as in the case of Patton, the call for the survey may support an entry. The boundaries for the survey must be shown, as has been done in the present case. Johnson v. Marshall, 4 Bibb, 133; Clay v. M’Kinney, 3 Marshall, 570; also the same book, 573, 577 and 190.
Patton calls to run from his beginning corner north five miles, and in making his survey, he ran near six. This shows, it is contended, that the entry of Patton has not been accurately surveyed, and consequently, Voss’s entry must fail.
It has been long a settled principle in Kentucky, that surplus land in a survey does not vitiate it; and such a survey is held to have been made conformably to entry. The inquiry is not, therefore, whether the line.of Patton, from the beginning corner to his north west corner, which is called for by Voss, and the other lines of Patton, are the exact distances designated;" but whether they were- so made as to conform to his entry, within the established rule on the subject. Of this there can exist no doubt.'
Any one desirous of fihding the beginning corner of Voss, having found the tree marked J. P., would trace the line running north to the corner called for by Voss. This he could have no difficulty in finding, although this line is longer, than called for in Patton’s entry.
That Patton’s survey was made before' the entry of. Voss, appears from the date of the survey and other facts in the case.
From, these considerations, the court think that the complainants-ha Ve sustained fhe-entry under which they claim.
In the further examination of the case, it will be necessary to inquire, whether the title set up by the complainants under the deed executed by Short in 1796, or the one he executed to the complainants and Breckenridge in 1804; shall be held valid. Both deeds are for the same tract of
land;
and the complainants in this court earnestly contend, that their title under the deed executed in 1796 vests in them a good legal title. From the circumstances under which this deed was executed, and the subsequent proceedings in regard to -it, as set forth in the amended bill, the circuit court held this deed to be null and void. With the view to establish the validity of this deed, the complainants alleged a diminution of the record, and this court, at the present term, awarded a. certiorari, directing the record of the suit in chancery by the complainants against Short and the heirs of Breckenridge to be certified, on the ground that it is supposed to have*been made a part of the record in the present case. That suit was brought by the complainants in the circuit court, to procure a reconveyance from the heirs of Breckenridge, of one moiety of the land in controversy, which had been conveyed to their ancestor by Short, under the deed of the 21st of September 1804, on the ground that he had died.before the professional services, which formed the, consideration of the grant, were performed. On the final hearing of this case, the court decreed that the defendants should release a part of the land to the complainants, in pursuance of which deeds were executed.
On the hearing, several depositions and letters were read, tending to show, that the deed from Short to Holmes in 1796, was duly executed. A.part of this evidence seems to have been extracted from this record, and used on the final hearing in the circuit court of the cause now under examination. This evidence has been certified up with the record, as forming a part of the case: but it is alleged- that, as in the amended bill, the decree and the deeds made in pursuance of it, in the case against the heirs of Breckenridge, Were made a part of it; and as in the opinion of the court there is a reference to the proceedings in that case, they form a part of the record in the.suit now. before the court.
The decree and the deeds in that suit, which were made a
part of the amended bill, were, incorporated into the record by the court below, and undoubtedly form a part of it: but it cannot be admitted that the evidence in that case, except so far as it was extracted and used in the circuit court, is admissible in this case. That suit was between different parties, and the points presented for the action of the court were different.
No evidence can be looked into in this court, which exercises an appellate jurisdiction, that was not before the circuit court; and the evidence certified with the record must be considered here, as the only evidence before the court-below. If, in cértifying the record, a part of the evidence in the case had been omitted, it might be certified in obedience to a certiorari ; but in such case it must appear from the record that the evidence was used, or offered to the circuit court.
It is to be regretted, that on the hearing in the court below any evidence was omitted which is deemed material in tlié case, but it is now too late to remedy the omission
To prove the-execution of the deed by Short to Holmes, in 1796, the deposit! n of William Moreton, one of the subscribing witnesses, was read. He proves his own signature, and also the signatures of James Russell and Francis Jones, who were also subscribing Witnesses, and he proves the signature of the grantor, although a- stroke of the pen-is made over it. The witness further states, that he was written to. by Mr Short to endeavour to make sales of lands for him, which he did not da; but on being told
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by John Holmes what was the .best he could do with the land, he advised him to sell, and told him he .thought Short would be satisfied.” “ That he understood the lands were sold, and the papers, or a part.of them, between Short and Holmes in relation to the sales, were sent to him, as he believes, to close the business with Short. On. the examination of his.letter book, he finds a copy of a letter to Mr John Holmes, under date of January 3d, 1797, on which day he forwarded to him by Mr Hughes, inclosed in said letter, the above deed.”
On the 10th January 1803, Holmes wrote to Moréton from Baltimore, and says,
“
the lands you sold on account of Mr Short, were held by Thompson, Mr Catón and myself. These gentlemen will correspond with you respecting them, to which
you will please to attend. I will thank you to do every thing in your power to get the necessary title papers, &c. for my proportion; Mr Omealy, my trustee, has the direction^ who will direct you as it respects me.”
Mr Catón wrote to Moreton, it is presumed, at the same time, that the interest he had in the lands jointly, he some time before transferred to William Slater, of Baltimore, who would write to him in conjunction with Mr Thompson and Mr Omealy, Mr Holmes’s trustee.
And 'on the 13th January 1803, Mr Omealy, as trustee for John Holmes, William Slater and H. Thompson,. wrote to Moreton, inclosing the above letters, and they say, “ the annexed letters from Holmes and Mr Catón inform you of our being the proprietors and legal representatives of the land bought of Short, and heretofore held by Mr Holmes,, amounting, we believe, to fourteen thousand five hundred acres. By an agreement with Mr Breckenridge, your senator in congress, he has undertaken to procure us a good title, and to effect a sale of the lands. We therefore request that you will surrender into his hands all the papers and documents you may have relating to them, that the title may be vested in him by Short and yourself; and by this authority, we require yourself, Mr Short, and .all others concerned, to consider Mr Breckenridge as our assignee for the lands in question, subject to the agreements entered into by Mr Breckenridge. and us.”
The papers surrendered to Breckenridge in pursuance of this letter, were, “ a copy of a letter from Peyton Short to John Holmes, dated Richmond, 29th September 1794.” “ An original letter from Peyton Short to Mr William Moreton, dated Woodford, 2d April 1795.” Also “ a copy of a paper, dated Baltimore, 9th May 1795, addressed to Mr John Holmes, and signed by William Moreton, attorney for Peyton Short, respecting the conveyance of fourteen thousand acres of land;” but these papers were not copied info the record, and there is no proof that they were used as eviderice on the hearing in the circuit court.
From tins evidence, without reference to the facts stated in the amended bill,’ it would be difficult to come to a satisfactory
conclusion, as it regards the execution of the deed in 1796. There can be no .doubt, from the deposition of Moreton, that it was signed by Short, and it is probable that it was forwarded to Holmes, as stated in Moreton’s deposition; but there is no evidence of its having been received by him, or that he treated it as a valid instrument. It would seem, from the letter of Holmes, dated the 10th of January 1803, that he was not at that time in ¡possession of this deed ; for he requests Moreton
“
to do every thing in his power to get the necessary title papers,” &c. And the memorandum of the paper delivered to Breckenridge,'dated 9th May 1795, which Was addressed to Holmes, and signed by Moreton. as attorney for Short, and which respected the conveyance of fourteen thousand acres of land, could not have referred to an absolute sale of the land to Holmes, it would seem, as Moreton states in his deposition that he did not sell to him. But even admitting that in this respect the memory of Moreton is incorrect, and that, as attorney of Short, he did sell the land to "Holmes, does it not appear probable, from the deposition of Moreton, that the conveyance to Holmes was made with the view of enabling him to dispose of the land for the benefit of Short 1, And if this were the case, whether Holmes first sold the land to his co-complainants, retaining an interest in it himself, or became interested in it by any other means, it does not appear that he was ever actually in possession of the deed, or claimed title under it. If strong doubts rested upon this part Of the case, a reference to the amended bill would dispel them. But the facts' there alleged, it is insisted, .were stated through the mistake of counsel, and that the rights of the complainants ought not therefore to be prejudiced by them.
On such an allegation the court cannot disregard the case which the complainants have made in their bill. They allege expressly that the deed executed by. Short to Holmes,, never having heen recorded, was delivered up and cancelled by those who had full powers on the subject, and that another deed was executed by Short, upon proper authority, vesting the fee to one moiety of the land in Breckenridge, and the other in the complainants. And by eférence to' the decree, in the
case against tlie heirs of Breckenridge, it appears that this deed was treated as a valid instrument, as the heirs were required to convey a part of the land held under it to the complainants.
The principle is admitted, that the mere cancelling of a deed does not re-invest the title in the grantor trader the laws of Kentucky; but, under the circumstances of this case, the court are clear, that the deed to Holmes must be considered as a nullity. It has been so treated by the parties themselves, not only, it would seem, by the decree against the heirs of Breekenridge, but by the express allegations of the amended bill. If, therefore, it were proved that this deed had been delivered to Holmes, or was found among his papers after his assignment, the court could not hold it valid in opposition to the acts and allegations of the complainants. The conveyance may have been made with the sole view of enabling Holmes to convey to others who had purchased; and á different arrangement being made, as the deed had not been recorded, and Holmes hot having .acted under it, it was probably surrendered, with all other papers relating to the land, to Breckenridge, by those who had full power to do so, as stated in the amended bill: on which surrender, Short executed the deed to the complainants and Breckenridge'. Whatever may have been the facts in regard to the delivery of the deed to Holmes and its surrender, this court have no difficulty in treating it as a void instrument, under all the circumstances of the case.
In this view of the facts, the complainants must rest their legal title to the land in controversy, on the deed executed in 1804, agreeably to the case made in <their amended bill. Whatever equitable claim the complainants may have had to this land, the deed to Breckenridge conveyed one moiety of it to him; and the next point of inquiry is, whether the decree obtained against the heirs of Breckenridge, and the conveyances executed in pursuance of it, as set forth in the amended bill, must be considered as setting up a new right, so as to give to a part of the defendants the benefit of the statute of limitations which they plead.'
The conveyance was executed to Breckenridge on the consideration of services to be rendered in establishing the title to
the land. These services we.re only rendered in part before the decease of Breckenridge, and on that ground the court decreed that his heirs, to whom the land descended, should convey'to the plaintiffs a part of the land.
Before the conveyances under this decree, the complainants could not be considered as having any claim to the land conveyed to Breckenridge, more than they would have had if -the contract had been to pay money instead of services, and he had failed in paying a part of the amount. In such a case, the complainants might have asked a rescisión of the contract, except for so much of the land as had been paid for. Or, they might have asked a specific execution of the contract; or have compelled the payment of the residue of the consideration by an action at law. But, until the complainants had made their election to proceed against the land, and had, through the, decree of a court of chancery, obtained a conveyance of it, they possessed.no specific right to the land which they could enforce either in law or equity, against persons in possession under an adverse claim. It therefore follows, that the title set up pi the amended bill, under the decree against the heirs of Breckenridge, is a new right, and must be considered as having br n first asserted by the amended bill; and
*
this bill was filed in May term 1829, the statute of limitation will constitute a good bar so far as the right under the decree is asserted against the defendants, who have held, adversely, twenty years or upwards.
It is true the complainants are non-residents, but so far as the land obtained by the decree against the heirs of Breckenridge is concerned, the statute had begun to run before the decree; and that proceeding does not arrest it.
The survey of Voss was made for eight thousand five hundred acres on the 16th February 1789, and the patent was issued to Short, as the assignee of Voss, on the 16th March 1790, for eight thousand five hundred acres. In running the lines of the survey, which purports to appropriate only eight thousand five hundred acres of the entry, they were made to include a large surplus of land, beyond the calls of the entry. But before this survey was executed several entries were made,
under which a part of the defendants claim, and which are embraced in the survey It becomes, therefore, necessary to determine between these conflicting rights.
The principle is well settled, that a junior entry shall limit the survey of a prior entry to its calls. This rule is reasonable and just. . Until an entiy be surveyed, a subsequent locator must be governed by its calls; and this is the reason why it is essential that every entry shall describe, with precision, the land designed to be- appropriated by it. If the land .adjoining to the entry should be covered by a subsequent location, it would be most unjust to sanction a survey of the prior entry beyond its calls, and so as to include a part of the junior entry.
This principle is not contested by the complainants, bui they deny its application to the case under consideration. They insist that the designation of the number of acres in the survey, below the amount called for in the entry, was a mistake of the surveyor. That it was the intention of Voss to survey his entire entiy, as is evidenced by the number of acres actually included in the survey. And the well settled rule is relied on, that surplus land will not vitiate a survey.
The intention of the surveyor can only be known by his official acts, and a resort to these in the present case, will show that he intended only to survey eight thousand five hundred acres, of the ten thousand acres entry. It is true, the lines include a very large surplus ; but this, according to the rule stated, does not render the survey void.
The locator may survey his entry into one- or more surveys, or he may, at pleasure, withdraw a part of his entry. Where a part of a warrant is withdrawn, the rules of the land office, require a memorandum on the margin of the record of the original entry, s’howing what part of it is withdrawn. It does not appear that any record of a withdrawal of a part of Voss’s entry was made; and from this fact it is argued, that none was intended to be withdrawn.
The question is not exclusively one of intention, or whether any part of this warrant lias been withdrawn. If a withdrawal appeared upon the record, it would be conclusive; but must not the right to withdraw fifteen hundred acres of the entry be equally as conclusive as if it bad been done. And is not this
right incontrovertibly established by the fact, that only eight thousand five hundred acres of the original entry have been surveyed and patented.
If a mistake was made by the surveyor, why was it not corrected before the emanation of the grant, or at some subsequent period? This might have been done at any túne by the holder of the claim.
Whatever may be the facts in regard to a mistake of the surveyor, this court cannot correct it; nor does it prevent the complainants from withdrawing one thousand five hundred acres of the entry, and making a location elsewhere; or perhaps, from still executing the survey for this quantity under the original entry. . If in the latter case the right would bé barred by the statute of limitations; or in the former it would be ineffectual from the lapse of time or the want'of vacant land; the loss is chargeable to the negligence of the complainants, and those under whom they claim.
From this construction of the survey it follows, that the right asserted under it must be limited by the valid entries under which a part of the defendants claim, to the calls of the entry which shall cover the quantity of acres that the surveyor purported to survey. The same construction must be given to the survey as if it had been made on an entry for eight thousand five hundred acres, which, by subsequent locations, was limited strictly to its calls.
As the line of Allen is called for as one of the boundaries of Voss’s entry, it is necessary to give a construction to Allen’s entry, and ascertain where this line should be established. Allen’s entry was not surveyed at the time Voss made his location. This entry calls to “ begin at the north west corner of Patton’s eight thousand four hundred acres survey, and to run with his line south two hundred and fifty poles, thence down the creek on both sides for quantity; to be laid off in one or more surveys,”
The. circuit court directed the survey, of Allen’s entry to be so made, from the base line called for, as that the lines shall include Bare Bone creek, and be parallel to its several courses, &c.'
It appears from the survey executed in pursuance of
construction of Allen’s entry, that near where the creek falls into the Ohio river, there is a bend in it -which renders it impracticable to include the mouth of the creek in the survey; but, with the exception of this bend, the creek is included. As it is impracticable to include the mouth of this creek in the survey, it is insisted by the complainants’ counsel, that this survey of the entry is incorrectly made; and “that the court should have directed it to be made by running at right angles from the base line for quantity.
In support of this position several authorities have been cited. In the case of Preble v. Vanhoover, 2 Bibb, 120, the court say,
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that the call to run eastwardly is an indefinite expression, signifying on which side of the base line the land is to lie; and that a rectangular figure is not to be departed from, unless the calls of the entry are incompatible with that figure.”
But in the same case the entry called .to include an improvement, and the court decided that the length of the given base and the call to include the improvement being incompatible, the former must yield, so far as necessary, to comply with the latter. In Hardin, 208, the construction of an entry is given by the court of appeals of Kentucky. They say that in the construction of entries it is difficult to lay down general rules, that will not' necessarily admit of many exceptions. Each case must frequently depend upon its own peculiar circumstances; but it is evident that every entry itself must be resorted to for discovering the locator’s intention, in construing which, the whole entry, like other writings, should be taken together. “ But if, from a fair and reasonable exposition of the entry, a call appears to have been made through mistake and is repugnant to the locator’s intention, it ought to be rejected, the court say, as surplusage; and.not suffered to vitiate the whole entry. Therefore, they say, the object called for. should not be so repugnant as to be incapable of misleading a subsequent inquirer with ordinary caution.” “ It should be practicable to comply with the call; and, in general, it should be a tangible object, either, natural or artificial, not a' mere ideal one.” The court also say, that a certain line should be run south west, “ not only because they conceive the locator’s intention sufficiently manifest, but because they esteem it a
good rule that the lines of every survey should be as nearly parallel to each other, and as nearly at right angles, as the calls of the entry will admit; and when not controlled by such calls as evidently show the locator’s intention to be otherwise, the court will give its calls this construction, as being the most reasonable, and the least subject to exception.”
These views contain the general principles which have been established in Kentucky, and by which entries in that state must be governed.
It will be observed, that in giving a construction to an entry the intention of the locator is to be chiefly regarded, the same as the intention of the parties in giving a construction to a contract. If a call be impracticable, it is rejected as surplusage, on the ground that it was made through mistake; but if a call be made for a natural or artificial object, it shall always control mere course and distance. Where there is no object called for to control a rectangular figure, that form shall be given to the survey.
These principles must now be applied to the call for the creek in Allen’s entry.
It is objected that this creek is not called by any particular name, and the reason no doubt was, that, at the time Allen’s entry was made, no name had been given to it. Nor was any name given to the creek on' which Patton’s entry was made. Subsequent to that entry it was called Patton’s creek, from the fact of his entry having been made on its bank.
Barebone creek seems to be a stream of some magnitude; and it .does not appear that there is any other creek which answers the call in Allen’s entry. This creek is a natural object, and is crossed by the base line of the entry; and could any one doubt the intention of thé locator, under such circumstances, to include the land on both sides of the creek by his call “ to run down the creek on both sides westwardly, for quantity?” It is true, the mouth of this creek is riot included in the survey which was directed by the circuit court, but the mouth of the creek is not called for specifically; and it does not appear, but that if the . exact quantity of land called for in the entry had been surveyed, that the creek would have passed through the whole length of the tract. The call is not to run
to the Ohio river, but “ down the creek on both sides for quantity.”
It would be difficult to make a call more specific than this, or one which would be less likely to mislead any. subsequent locator. Is the fact that the creek, by an unusual deviation from its general course, near its junction with the Ohio, passes out. of the boundaries designated, calculated to mislead any one ? Suppose it passed out of .the limits of the survey five or ten poles before the lines closed; would this, by the principles laid down, require the call to be rejected? Could that fact lead any one into error? And unless such a deviation would require the court to reject the call, it cannot be rejected on the ground alleged. The creek, by the survey executed, runs through the tract about seven-eighths of the entire length of the line, and the extraordinary bend which carries it out of the survey, cannot vitiate the call or render it substantially repugnant.
The question which arises out of these facts is, whether this call shall not control the survey, so as substantially to conform to it. The call to run westwardly, having nothing else to control it, would, according to the established rule of construction, require the lines to tie run at right angles from the base. But the court are clearly of opinion, that the call to run down the creek on both sides for quantity, must control the survey; and that the construction given to the entry by the circuit court was correct.
This line of Allen’s entry being established, it forms the lower boundary of Voss’s survey; and it remains only to say that, agreeably to the calls, of his entry, the survey must be extended up the river and along Roberts’s line, so as to include eight thousand five hundred acres. The survey cannot be extended beyond this limit, so as to interfere with valid entries which were made before the original survey of Voss. This 'was the construction given to the rights of the complainants under their entry and survey, and this court sustain that construction.
The decree of the circuit court must be affirmed, with costs.