Sanders v. Morrison's

18 Ky. 109, 2 T.B. Mon. 109, 1825 Ky. LEXIS 53

• Court: Court of Appeals of Kentucky
• Decided: July 1, 1825
• Status: Published

Opinion

Judge Haggin

delivered the opinion of the Court.

*

THIS is a conflict between interfering entries. Sanders held under the elder grant, and Morrison filed a bill, setting forth title under an entry in the name Andrew Shrewer, for 800 acres of land, of the 13th of .January 1783,, “on Eagle creek, a north branch of Kentucky, to include a salt lick in the middle of a square tract, aboqt eight or nine ipiles from the mouth of the said creek.”

Sanders controverted the specialty of this entry, and likewise relies upon his own, in the name of John C. Richardson, for 607 acres, of the 7th of July 1780, “on Eagle creek, about seven miles from the rr^outh, beginning on the north-west side of said creek, 150 poles therefrqm, and to run south-east p distance sufficient to include the quantity in a square, by lines, at right angles to each other,”

Entertaining, as we do, an opinion favorable to the entry of the defendant, we deem it .unnecessary to en-. quire into the validity of that of the complainant; because. the defendant’s is the elder, and when properly-surveyed, will, we apprehend, cover all the land in controversy.

By a variety o.f adjudications, to which we no exception, the distance of seven miles is to be held locative, in the construction of this entry; the word about is to be rejected, and no part of the land to approach within less than seven miles of the mouth of the creek, upon a direct line. See Johnson and Rowland, Pr. Dec. and Nichols and Wills, 307; Whitaker and Hall, 1 Bibb 72; Green and Watson, 1 Bibb 107; Lockhart and Trabue, 2 Bibb 250; Smith and Walton, 3 Bibb 153; Carland and Rowland, 3 Bibb 127; Stephens and Hedden, 4 Bibb 107; Meriwether and Philips, 5 Litt. Rep. 182, and Johnson vs. Pannel, 2 Wheaton,

'Rhe rulo is, a distance so where itis’on a small stream of suf-is^olietaken on a direct line; where on a great stream not C sufficiently long, except dere^tkeme-anders are to bo measured.

In the case of Whitaker and Hall, an opinion deliver-e(j Upon re-hearing and with great deliberation and ability, the words, “about one mile, an east course from Brashears’ creek, along the road that leads from Har-rodsburgto Beargrass,” were located in a square, the lower line one mile with the road from the creek. Here it will be seen, that in running the distance peculiar effect is duo to the road. In Green and Watson, an entry on Licking, “ 200 poles above M’Fall’s claim, running up the creek.” &c. the distance was taken upon a direct line. In Lockhart’s heirs and Trabue, the words “ one and a quarter mile below M’Fall’s,” were construed to require a direct line. In Stephens and Hedden, the entry on Brashears’ creek, “ about four miles above the mouth,” was held to require a straight line.

In Johnson and Rannel, the Supreme Co.urt, after a critical review of the State adjudications, required the entry, “ beginning about twelve miles below the mouth kicking, on a sugar tree and hickory, punning up the river,” &c. to be surveyed with the lower point precisely twelve miles with the meanders, rejecting the W01’^ obout, and the allusion to unmarked trees, and distinctly declaring that if the stream had been small, the distance should have been taken on a direct line, an¿¡ approving the construction given in the cases recited, to the word from. And in Meriwether and Philips, the Court of Appeals, in expounding an entry on Har-¿j¡n’s creek, “beginning about three miles above Phil-‘Ps’ station, on said creek, running thence south-west two and a half miles, and from the beginning, northeast, then at right angles from the extremity of each line for quantity,” rejected the word about, recognized the direct line, and approved the construction given to the word from; but decided that entry bad, because of the want of some, intimation upon which side of the base line the land was to lie; most clearly admitting that the word frqm would hare obviated all cjiffieuity.

How Rich-en-be sur‘ J Sharp, for appellant; Bibb and Crittenden, for ap-pellee.

Wé are apprised, however, of one other exception; .as where the stream is not of sufficient extent to admit a direct line, the meanders may be pursued, in ascertaining the distance.

The entry of Richardson should be surveyed in a square, the lower line seven miles from the mouth Eagle creek, in its lowest point, to begin 150 poles from the creek, on the north-west side, and to run southeast and at right angles north-east for quantity, and thus surveyed, it seems from the plat it will still embrace all the land in controversy.

The decree reversed,-cause remanded, and bill to be dismissed with costs.

Absent, Ch. J. Barry.