Marshall v. Campbell

16 Ky. 496, 1821 Ky. LEXIS 74

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

Opinion

Opinion of

the Court.

THIS contest turns on the validity of the following entry: “January 11th, 1783—James Arnold enters 300 acres of land, on treasury warrant No. &c. joining the north line of Robert Johnson’s entry of 400 acres, between Archer and Tomlinson’s pre-emptions, and to extend north, binding on said Tomlinson’s and Archer’s, for quantity.”

On the 10th of January 1783, Robert Johnson entered 400 acres on treasury warrant No. &c. beginning at the south-east corner of Stephen Archer’s pre-emption on Miller’s creek; thence south 70 east, until it intersects the north-west line of Tomlinson’s pre-emption; thence northwardly, binding on each survey, for quantity.

On the 9th of December 1782, Stephen Archer entered 1,000 acres, on a pre-emption warrant, &c. on the north fork of Elkhorn creek, to include his improvement on the north side of said creek and spring, and running north-east for quantity.

On the 22d of April 1780, Tomlinson obtained a certificate for a pre-emption, and on the 9th of December 1782, it was entered by Craig and Johnson, with the surveyor, “ on a dry branch of the north fork of Elkhorn, running in on the north side thereof, beginning on the branch, three quarters of a mile from the mouth, and about one quarter of a mile below a cabin built by Joseph Tomlinson, near the fork of the branch, and to run across and out from the same, on both sides, at right angles from the general course of that part of the branch that falls within its location, such a distance as that lines run up the branch at right angles to the first mentioned line, and a line to run across from the termination of one of the last mentioned lines to the other, parallel to the first line, and crossing the said branch within ten poles below Jacob Greathouse’s, will include the first mentioned cabin, and three or four acres of land which has formerly been cleared.”

Without enquiring into the other calls of Arnold’s entry, a sufficient objection to it may be perceived in the call for Archer. The position of Archer is not only necessary to give boundary to one of the sides of Arnold, but it is also indispensable in ascertaining the beginning of Johnson’s entry of 400 acres, the north line whereof is also called for by Arnold. Whether reliance be placed on the entry or survey of Archer, it will be found equally unavailing to the entry of Arnold. The entry of Archer cannot be sustained; for his improvement is neither identified nor proved to have been notorious; and the uncertainty in Archer’s entry cannot be aided by his survey, because there is no certificate of survey exhibited in the record; and although from the parol proof it is inferrable that the survey was made before the date of either Johnson’s 400 acre entry or the entry of Arnold, there is no sufficient evidence of the survey having acquired notoriety, when either of those entries was made.

Decree affirmed.