Woolfolk v. Trotter's heirs

7 Ky. 378, 4 Bibb 378, 1816 Ky. LEXIS 70

• Court: Court of Appeals of Kentucky
• Decided: December 11, 1816
• Status: Published

Opinion

OPINION of the Court, by

Judge Logas.

Woolfolk was the Complainant below, claiming the superior right celqa¡n [an(j under the following entry : from the head of the said south fork ; thence to run up the creek on both sides for quantity.” .

„ . .. ⅜1 . “December 5th, 17*83 — Robert Woolfolk enter» 4895§ acres on a treasury Warrant, on the first largef°r^ emptying in on the south side of Lick creek, a branch of the Beech fork ; which said Lick creek is the first larga creek up which Powell’s trace leads after crossing Chaplin’s fork the first time going from Cox’s station to Harrodsburgh; to begin about three miles

With regard to the creek upon which this entry was located, there is not room for a well founded doubt. Lick creek is deafly described by reference to Powell’s trace: and there is but one creek emptying into it on the south side, which answers the description in the entry.

B ut the doubt with regard to the val idity of this entry, is as to the point of beginning. This doubt arises from the several forks into which the creek is divided; and neither of which seems to have obtained a sufficient reputation of being the head of the creek. Those forks, it is proved, are so nearly of a size, that a subsequent locator could not have ascertained by any reasonable exertion the head" of the main fork. It has in former cases been held, that a call for the head of a water course, which has not a reputed head, is a vague and indefinite call (1 Bibb S3.) This creek is proved to be from 15 to upwards of 20 miles long; so that to have sought for the head or longest branch of several forks, which seemed equally applicable to the entry, would have been a hopeless undertaking.

The decree of the circuit court must be affirmed with costs.