Lillard v. Henderson's heirs

10 Ky. 585, 3 A.K. Marsh. 585, 1821 Ky. LEXIS 231

• Court: Court of Appeals of Kentucky
• Decided: April 10, 1821
• Status: Published

Opinion

Judge Mills

delivered the opinion.

The heirs of Bennett Henderson, by their bill in equity, set up an entry made in the name of their ancestor, against an elder grant. The defendant below relies on the illegality of their entry and his elder patent. The court below sustained Henderson’s eritrv, and decreed against the defendant. From this decree the defendant appealed, and the sole question for our decision, is the validity of the entry of the complainants below.

It is dated May 13, 17?⅛», on treasury warrant ; and its calls are as follows, “ On a branch emptying into Guio, about eight miles below the Big Bone Lick, about two miles from the river, nearly southeast from the mouth of said creek, to begin at a large buffaloe path, at the poiat of a ridge, running east and south for quantity.” Its quantity is 2000 acres.

The Big Bone Lick is shewn to have been notorious ever since the year 1774. h is situated on a cre«-k emptying into the Onio, about two or thiee miles from the river, at the nearest point. The bearing from the Lick, direct to the mouth of the creek, is N. 66 W. 1255 poles ; but with the meanders the distance to the river is much greater. From the mouth of the creek, on wh en toe Lick is situated, to the moutn of a cr» ¡ k now claimed by the complainants, and now' called Paint Lick, with the meanders oi the river, the distance is 1358 poles. But from the Big Bone Lick to tt e mouth ot Taint Lick, on a straight line, is only lour miles From the mouth of Paint Lick to the next lowest creek, now called Little Sugar Creek, with the meanders of the river, the distance ts one mil© anti one half, and at about 60 poles further down the river is the mouth of another creek, now called Big Sugar Creek, and the distance from its mouth to the Big Boric Lick, on a direct line, is five miles and twenty poles.-*But going from the lick to the mouth of the Big Bone creek, and then with the meanders of the river, the distance is ten miles, three quarters and forty-seven poles. Each of these streams, to wit: Paint lick and the two Sugar creeks, going up them from the Ohio, bear a soulh-eastwardly direction. Up Paint lick, at the distance of 488 poles from the mouth, with the meanders, and on a straight line bearing S. ®1 E. 400 poles, and on the west-wardiy side of the creek is the point or spur of a ridge put-ingout from other ridges, or hills, of greater magnitude, and pointing nearly down Paint Lick, and after extending thirty eight poles, or thereabouts, nearly on a level, with a descent on each sTde, it descends to the bottom, at the descent of about thirty feet in fourteen poles distance.*— This is claimed os the point of th« ridge intended by the entry. Down this point descends a buffaloe path, or one that has the appearances of an old buffaloe path to this time. Such is proved to he its appearance about the year 1792 and since ; and some of the witnesses speak of it as the largest path of that description coming down the points of ridges on the creek, while others say that there were such paths down every point, some about as large as this, and that points of ridges and paths were frequent, both on Paint lick and the two creeks called Sugar creeks. No witness proves any knowledge of this or any other path as, early as the dale of the entry.

An eat y calling for a creek about 8 miles fr m the Big Bone Lirfe, must depart from the ick and not from the mouth of the Big bone Sick creek.

It is not reasonable to suppose that an enquirer for this entry, having a general knowledge of the country, starling from the Big Bone lick, would pass down the creek on which the lick is situated, unless every other rout was impassable, which is not shewn to be the case. A part of the distance, arising from the crookedness of that stream, he would be going nearly a direct course from the object in view. The entry gives no intimation that this was the mode to be adopted. It is not even hinted that the lick was situated on such stream ; and it is more probable that the locator would have computed the distance from the mouth of that stream to the stream on which he intended to locate, instead of from the lick itself, as he has done, bad he intended the locator to pass that way. His calling fat 3 distance from the lick itself, evidently shews that he must have intended, at most, the nearest way usually travelled or the most practicable rout to a point on the Ohio, abo*t or near the distance intended. Adopting this as the mode of travelling, it is evident that every enquirer would have chosen Big Sugar creek, as the one best suited to the calls of the entry.

A ■⅛¾’1"!1'*' position contrary to the JJf'the^entr’ c¡,n>t prevaii'

But suppose this difficulty to be removed, and that the subsequent locator really fixed upon ramt lick as the creek intended, it is unfavorable to this entry that it calls to lie on the creek, or branch, but does not inform us on which side we are to look for the ridge or trace meeting together. From its calls, to run “east and south” for quantity, and be on the stream as a general call, we might suppose that it intended the upper or eastern side of the creek. Instead of this the beginning is claimed on the lower side, where by its calls it runs from the stream with the body of the land. To correct this deception however, the call nearly southeast from the mouth of the creek is relied on. By this we ought to suppose that a course southeast from the mouth of the creek, at the end of about two miles, Would place us near the object intended. Such a course and distance would as well suit, as the one claimed ; for we are not told that the ridge intended is near to, or has any connection with the creek itself. Of course any Other point equally well complies with the calls. In addition to this it is proved that there are other points and other paths, nearly, if not entirely, as large as the one claimed in the neighborhood. ¡So that if we were to take the knowledge of the witnesses, who saw the road in modern times only, for that of the ancient explorer, and assume it as certain that the road, now found, was there at the dale of the entry, (whieb is a very'liberal allowance,) we should be of opinion that the entry is void.

The decision of the court below must, therefore, be reversed, and the biU dismissed with costs.