Whitledge v. Kenny

1 Ky. 211

• Court: Kentucky Supreme Court
• Decided: October 15, 1799
• Status: Published

Opinion

And now, at this term, the following decree was pronounced:

By the Court.

This cause was first hoard, and an interlocutory decree given therein in favor of Kenny, by this court, while it had original jurisdiction, which decree, although interlocutory, was final as to the merits of the cause, except so far as they were kept open by certain errors alleged on behalf of Whitledge, agreeably to the then existing rules of the court.

On the errors thus assigned the cause was reheard by the same court, and a second interlocutory decree given in favor of Kenny, or rather the interlocutory decree before given was affirmed, but on different principles, which was also final as to the merits of the cause, except so far as they were kept open, by certain other errors, in like manner alleged,'on behalf of Whitledge. Shortly afterward the original jurisdiction of this .court was taken away, and in consequence thereof the cause was removed to the court of the district of Paris, where it was reheard on the second sot of errors assigned, and first an interlocutory and then a final decree given in favor of Kenny on principles different from both the former decrees, and from which the present appeal hath been taken, so that it now becomes the duty of this court carefully to aim at a final decision therein, which will be conformable to law, however contrary it may be to former opinions in the cause.

From what hath been stated, it is evident, that the district court of Paris was restricted to the errors which brought the cause before it, and consequently that, on a consideration of those errors only, the appeal from the decree of that court ought to be decided.

Whatever was determined in the cause by the former decrees of this court, against which those errors do not militate, must stand unaltered, although otherwise erroneous.

This court will not attempt to r e-in ves ti gate the merits of the cause at large, further than it maybe necessary in deciding on the errors. It is, however believed, that all the other points which arose in the cause, have been properly adjudged and stated.

The first error assigned is, that the decree hath gone on a supposition that the location of the pre-emption, as contained in the certificate, is of no legal efficacy whatever. The court can not discover that this assertion is authorized by the decree.

The decree states that a pre-emption appendant to a settlement was not required.by the land law to be located with the commissioners, only the quantity of the pre-emption which the claimant elected, adjacent to his settlement, being required to be noted in the certificate, which can mean no more than that the noting-alluded to will not have the effect of fixing to what point, and in what form the pre-emption shall adjoin the settlement, but it might have the effect which is clearly implied and properly expressed in the decree, of securing to the claimant the privileges of procuring a pre-emption warrant, and of locating it with the surveyor within a certain limited time to adjoin his settlement on any part, and in any form he should think proper, without reducing the dignity of the claim. To this latter opinion of the court the second error alleged appoars to bo opposed, viz:

That the decree asserts that the owner of the pre-emption is, notwithstanding his certificate, left to locate it with the surveyor, within a certain limited time to adjoin his settlement in any manner, or legal form, he should think proper. Perhaps this, and the first error assigned, might, with propriety, have been comprised in one; at least, it seems that they may fairly be taken together in considering them. And on those supposed errors two inquiries arise : First. Does the land law require that a pre-emption, appendant to a settlement, should be so located with the commissioners as to fix on what part, and in what form the pre-emption shall adjoin the settlement ?

It may hero be premised that the land law, in a clause of the 5th section of the act for adjusting and settling the titles of claimers to unpatented lands, etc.,_,secured the privilege of those who were entitled to claim settlement rights (which were not to exceed 400 acres), that they might also become entitled to the pre-emption of any greater quantity of vacant land adjoining to that allowed them in consideration of settlement, not exceeding 1,000 acres.

Here the law determined that the pre-emption shall adjoin the settlement without specifying the manner; but the clause on which the answer to the present inquiry seems principally to depend is in the 8th section of the same act, viz : “ The commissioners shall deliver to every person to whom they shall adjudge lands for settlement, a certificate thereof, under their hands and attested by the clerk, mentioning the number of acres and the time of settlement, and describing, as near as maybe, the particular location, noting also therein the quantity of adjacent land to which such person shall have the right of pre-emption.”

The court does not conceive that any commentary can make the meaning of this clause more clear, and it seems to the court that it does as clearly answer the present inquiry in the negative.

It may, however, be observed, that with regard to a settlement three things were required to be done by the claimant when he came before the commissioners to prove his right: to elect the quantity, and to specify the location, and that with regard to the pre-emption appendant thereto, it was only requisite he should elect the quantity, the law having directed that the quantity elected should adjoin the settlement, and that it should be so noted in the certificate.

If it were his duty to have offered a particular location for his pre-emption as well as his settlement, it is strange that the duty was not also enjoined on him in the same words, and it is strange that, in the clause next following, particular locations with the commissioners should bo expressly required for the other kinds of pre-emptions.

It may also be observed, that it can not legally be inferred that this was a casus omissus, either from the words “like manner” in the clause last recited, or from a preceding clause in the same section which requires that the clerk shall keep exact minutes of all the proceedings of the commissioners, and enter the names of all the persons to whom either lands for settlement, or the right of pre-emption, as the case is, shall be adjudged, with their'respective quantities and locations.

The words “ like manner,” can not allude to the pre-emptions intended in the preceding clause, because that clause had not required locations for such pre-emptions; therefore, such an inference would be begging the question.

And as to the clause last recited, whiclrspecifies the duty of the clerk, it certainly was necessary.for him to have recourse to the other parts of the land law to learn what kind of locations he was directed to enter for each kind of claim allowed by the commissioners. This clause, therefore, can mean no more than that each of them should-be inserted in his minutes in the same words as in the certificates issued to the claimants.

Nor can it be presumed that the legislature intended by the expression “adjoining,” that the claimants of such pre-emptions should be confined to take them all around their settlements, because the words “adjoining” and “around” are not synonymous, and because the pre-emption is destroyed by another, which appears much more rational, that it was foreseen by the legislature, if particular locations for them should be required before all the superior claims were ascertained by the commissioners, the right of claiming them would be rendered nearly nugatory; and this by the way seems to be a sufficient reason, if it were necessary to give one, why the land law required that there should be a particular location for a settlement,, and not for a pre-emption appendant thereto; and it maybe further observed, that if particular locations for this kind of pre-emptions were not made necessary by the land law, nor by it required to bo made with the commissioners, that none of the rules of court for the construction of locations, which have been or may hereafter be adopted, can possibly apply to the case; and that it would be the most unjustifiable assumption of legislative power for the court to declare that to be law which does not exist, or that to be the act of a person which he never did nor was required to dp.

If it should be objected that the opinion of the court now given contradicts the decision of the late supreme court in the case of Swearingem v. Higgins, it will be necessary to observe that a complete file of the papers in that cause hath not been preserved; but if the judgment thereon was founded on a supposition that a preemption appendant to a settlement was required to be particularly located with the commissioners, the supposition seems to be too illegal and pernicious to be followed as a precedent, and it was virtually adjudged to be so in the last of the former opinions of the court of appeals in this cause.

The second inquiry arising on the errors alleged which have been recited now presents itself for consideration. Did the land law permit a warrant obtained on a pre-emption right appendant to a settlement to be located with the surveyor within a certain limited time, so as to adjoin the settlement'on any part and in any form the claimant thought proper, without destroying the dignity of his claim?

In the fifth section of the act before cited, it is required that all pre-emption warrants shall be entered with the surveyor within twelve months next after the end of the session of assembly at which the act passed.

This clause limits the time as to its'termination, within which such warrants should be located. And in the same section it further proceeded, that the register of the land office shall particularly distinguish all pre-emption warrants by him issued, and no county surveyor shall admit any such warrant to be entered or located in his boohs before the expiration of ten months after the end of the said session; and where any such warrant shall not be entered and located with the county surveyor, within the before mentioned space of twelve months, the right of pre-emption shall be forfeited, and the lands therein mentioned may be entered for by any person holding another land warrant.

But such pre-emption warrant may nevertheless be located on any other waste and unappropriated lands, or upon the same lands where they have not in the mean time been entered for by some other ?

This last regulation contains a limitation as to tho commencement of the time within which such warrants might be located as such ; and it further provides, that if they were not located within tho period prescribed, the right of pre-emption should bo forfeited, which, taken in connection with the other parts of the land law before cited, proves, without further comment, that the right of pre-emption to any vacant lands adjoining the settlement to which it was appendant was so long secured, and consequently that the claimant might have made his location thereon in the manner most for his interest; moreover, this clause provides that a preemption warrant, after it lost its dignity, might have been located on any vacant lands in any manner the owner pleased.

Surely, then, the owner of a pre-emption warrant of the kind under consideration must have been permitted, within the time prescribed to locate it, to adjoin his settlement in any manner he pleased, or his right of pre-emption could not have been beneficial to him; to which may be added, that this doctrine hath ever been embraced as undoubtedly true, unless the ease of Bwearingem v. Higgins should be found to be an exception, which it is believed it is not.

If it should be objected that the clause last recited from the land law, equally applies to those pre-emptions which were expressly required to be located with the commissioners, the answer would be, that on all pre-emptions a moré perfect location was required with tho surveyors than with tho commissioners ; with the latter, some of them indeed were to be located as particularly as it would be done at the time with the former; they were all to be located so specially and precisely as that others might be enabled with certainty to locate warrants on the, adjacent residuum.

From which it is evident that a much greater degree of precision was necessary in one case than in tho other, and that to make them consistent, tho last location must be considered as an amendment, without destroying the dignity of the claim, if it did not materially depart from the first.

Then, as to those pre-emptions which were only noted by the commissioners to adjoin the settlement to which they were appendant, there seems to be no doubt but that their locations with the surveyors might have been made as hath been stated. Nor does the court find any clause in the land law which can give the least plausibility to such a doubt, but one which is an act of the May session, 1783, which allows further time for making entries H|5on certificates for settlement rights, and for locating warrants on pre-emption rights, as specially described in the certificates by which such rights are hold.

But as it does not appear that this clause was intended to explain or to declare the meaning of any preceding part of that law, but simply to extend a privilege thereby given, it certainly ought to be construed in conformity thereto; or, to say the most, that it was intended thereafter to continue as to time, and to limit as to extend a privilege which had been before given; and, taken in either of the last mentioned ways, it does not affect the case under consideration.

The two errors alleged, which remain to be decided on, may also be taken together, as it seems to the court that every consideration which will apply to one will apply to the other. They are as followeth :

Error 3. — That it is declared by the decree, that an entry which calls to adjoin a settlement and pre-emption, or to adjoin a preemption only which belongs to a settlement, is legal, whether the call is made in express terms, or by such as are tantamount, and yet the decree states that the legal situation of the claim thus calling for the settlement and pre-emption, or the pre-emption, must depend on the subsequent entry of the pre-emption with the surveyor, and that when the pre-emption is specially located with the surveyor, that the location which calls to adjoin it then also becomes special, and must adjoin it agreeably to the entry with the surveyor.

Error 4. — Because the decree goes upon the supposition that the complainant located his settlement right as particularly as it could be done at the time he obtained his certificate, and yet declares that his settlement shall be regulated by the subsequent entry of McGee, which places his pre-emption to adjoin his settlement in such a manner as was not called for in his certificate, and could not have been contemplated by either of the parties when the complainant obtained his certificate. It ought here to be premised that the court of appeals, in that part of its former decree to which these alleged errors are opposed, has improperly extended its opinion further than the case under consideration required.

A certain William McGee had been allowed a settlement of 400 acres and a pre-emption of 1,000 acres adjoining thereto, and obtained a certificate from the commissioners, which contained a location for the settlement and also the usual note as to the preemption.

Kenny, the complainant in the original suit, and the appellee in this, afterward was allowed a settlement of 400 acres, and a j)reemption of 1,000 acres adjoining- thereto, for raising a crop of corn in the country, and obtained a certificate from the commissioner’s, in which his settlement was located below and adjoining McGee’s land, before McGee had located his pre-emption with the surveyor. ,

From that decree it appears that the court was of opinion that the call to adjoin McGee’s land was tantamount to calling for his settlement and pre-emption, which seems to be a just construction. But it was not necessary then to decide on a location, which only called to adjoin a pre-emption appendant to a settlement; therefore, to the legal effects of a location with the commissioners for a-settlement right allowed to a villager, which only calls to adjoin a settlement and pre-emption on a certain part, or side, previously allowed by the commissioners, but before the pre-emption had been located with the surveyor, it appears that the opinion of the court ought to have been confined, and for the same reason to the same inquiry the court will now confine its attention.

It will not be denied that when a location on a land warrant calls for a location made on another land warrant, if the first location be such as the land law required, the second will have, the benefit of that call, and by parity of reasoning, it would seem that when a certificate for a settlement calls for another settlement and pre-emption, if the certificate for the first contains such a description as the land law required, the second can not for that cause be illegal.

For the different degrees of precision which were enjoined in the two cases do not justify different conclusions; the law having been complied with in the one case, ought to have the same effect as in the other.

The only doubt which can arise is, whether a location of the kind last mentioned was as particular as it might have been made. But when it is considered that the pre-emption appendant to an actual settlement will take preference of every pre-emption appendant to subsequent actual settlements, and that a pre-emption appendant to any actual settlement will take jjreferonce of every settlement allowed to villagers, and of the pre-emptions appendant thereto; and that the prior settlements and pre-emptions allowed to villagers will take preference of every subsequent settlement of that kind, and of the pre-emptions appendant thereto; and further, that all such superior settlements and pre-emptions must have been specially located with the surveyors, before the fate of the settlements and pre-emption’s in their vicinity, which were inferior to them,.could be known.

It seems to the court that when a villager located his settlement to adjoin on a certain part, or side, of a settlement and pre-emption which had been previously ascertained by the commissioners, that he described as near as may be his particular location; and, therefore, that in this point of view also, his location ought to be sustained.

If it should still be thought that there is any uncertainty in the land law as to the present inquiry, it seems that'justice will strongly favor the explanation which has been given it by the court; for, if the locations made to adjoin settlements and preemptions before their precise situation and form were ascertained are not legal, their owners might have monopolized all the vacant land within several miles of their settlements, by determining in their own minds how they would locate their pre-emptions with the surveyors, and at their leisure locating other warrants on the remainder; whereas, nothing can be more clear than that reason required, and the legislature intended, that all purchasers of land warrants should be on the same footing.

Therefore, it seems to the court to be the most consonant to the equity arising on the case, as well as the general tenor of the land law, that the locations of settlements allowed to villagers, which have been made to adjoin other settlements and pre-emptions, should be considered as on that account sufficiently particular. That when they were afterward specially located with the surveyors, then the locations made to adjoin them, as in the case of the appellees, also became special; and that the specialty of the latter related back to the time they were made with the same propriety as the former did to the time those rights were ascertained by the commissioners, for it is clear that the former will relate back, and ubi eadem est j-atio ibi, idem est jus.

If it should be objected that this doctrine greatly extends the uncertainty, which, in other instances, is produced by the land law, the answer will be, that if it be the law which produces those mischiefs, the court is not responsible for them, and it can not be denied that there are defects in the land law which are beyond the power of construction to remedy. But the mischief now in contemplation would have been small, had it not been for the great length of time, which, by repeated amendments to that law, was given to the claimants of such pre-emptions to locate them specially with the surveyor; for, by the original law, they were required to be thus located within a few months.after they were allowed by the commissionei’s, and in the meantime, and for more than two years thereafter, such was the situation of the commissioners’ books, that there was no certain or legal way of obtaining information of any of the claims recorded in them, so that adventurers wore at first subjected to no greater difficulties with regard to stxch pre-emptions than the other claims for which more particular locations with the commissioners had been made.

It may not be amiss for the court to repeat, that it hath strictly confined the -preseixt investigation to the locations with the commissioners of settlements allowed to villagers, which called to adjoin settlements and pre-emptions before the pre-emptions wex*e located with the surveyox-s, because the location of the appellee in question is of this kind, and it is not necessary that the decision should bo further extended, and because it seems to the court that the case of those villager’s was peculiar when they made such locations, of which there ax’e many to be found in the commissioners’ books.

All the other claimants had improvements, which, in a great measure, identified and secured the claims.

But before it was possible for villagers to know the precise forms which those claims would assume, they were compelled either to make random locations for lairds before unappropriated, amid a crowd of such claims, or to abandon the privilege which the law allowed them.

In short, villagers had purchased a right to appropriate the vacant lands which should be left after those claims were satisfied, arid it was impossible to do so without calling to adjoin them.

For the reasons which have been stated, the court adjudged that the errors under consideration are without foundation so far as they respect the merits of the present cause, and therefore that the decree of the court for the district of Paris thereon, which is in substance the same with the former decree of this court, is just, and should stand unaltered.

As to the different opinions by which those decrees were supported by the court of appeals or the district court, it is only necessary to mention that so far as they contradict the opinion now given they can have no further authority.

Decree of the Paris district court confirmed with costs.