Todd's heirs v. Fry

7 Ky. 110, 4 Bibb 110, 1815 Ky. LEXIS 69

• Court: Court of Appeals of Kentucky
• Decided: April 7, 1815
• Status: Published

Opinion

OPINION of the Court, by

Ch. J. Boyte.

This is a contest for lauds, and turns upon the validity of the entry under which the appellants, who were complainants in the court below, derive theip claim, and which ⅛ in tile following words, via :

« May 16, IT80 — John Todd enters 1000 acres upon a treasury warrant, north of the Path fork of Gist’s creek, beginning at a cornered Mulberry below the mouth of the run, about one or two yards from the path, and about half a mile below where the road strikes the said creek, running north 300 poles, west 400 poles, Nc. for 11 antity•”

Mulberry tree is shewn as the one intended by this elp-ry a¡itj p ⅛ probable from the proof, that it was, marked as a corner at the date oi the entry ; but it is p0t pretended that it had become notorious, and it is evident from the nature of the object, that unless it had ^en notori,)US jn itself, it could not l>avc been found by a subsequent locator, without the aid of the other objects called for in the entry. Of these Gist’s creek and the Path fork are the most leading and prominent. Gist’s creek seems to be sufficiently established both with respect to. ⅛ identity and notoriety ; but it is proved to have sc-. veT>aj forjts> to the number of four or five, and the one on which the land in controversy lies, is not proven to have been generally known by the name of the Path fork. Not; a single witness says that it was generally known by that appellation. Some of the witnesses, indeed, say that it was so called by themselves and some others, Bat a greater number of witnesses, some of whom had been intimate in its vicinity, having- lived in the station nearest to Gist’s creek, and often traversed the part of the country watered by its various branches, declare that the fork now claimed as the Path fork was unknown to them by that name, and that they had never heard it so called. It is moreover shewn that about the date of the entry it assumed the name óf Jephthah, by which it became generally known, and which it has ever since retained.

It is true, that it is proven that the trace from Har-rodsburgto the Falls led up that fork of Gist’s creek $ hut that circumstance does not render the name of the Path fork so peculiarly applicable so it as to contradis-tinguish it from the other forks of the creek : for it is proven that paths led up most of the other forks, any of which might, therefore, with at least equal propriety he denominated a Path fork.

Other objections of a minor nature present themselves, but it seems unnecessary to notice them, as the entry is deemed fatally defective on the ground already mentioned. .

The decree must be affirmed with costs.